Davidson v Timal

• Jurisdiction: Trinidad & Tobago
• Judge: Holdip, J.
• Judgment Date: 29 June 2009
• Neutral Citation: TT 2009 HC 156
• Docket Number: FH 240 of 2006
• Court: High Court (Trinidad and Tobago)
• Date: 29 June 2009

High Court

Holdip, J.

FH 240 of 2006

Davidson

and

Timal

Appearances:

Ms. Donna Prowell for the petitioner.

Mr. Ronald Simon for the respondent.

Family law - Matrimonial property division.

Holdip, J.

1 Before the Court is an application for financial relief filed by the respondent on May 17th 2006 seeking:

1

A lump sum payment for the respondent's share, interest and title in the matrimonial home situated at No. 255 Murex Street, Bon Air West, Arouca, in the Ward of Tacarigua, in the Island of Trinidad.

FACTS

2 The petitioner now resides at the former matrimonial property situate at No. 255 Murex Street, Bon Air West, Arouca, The petitioner is employed as a Field Officer at the Research Associates on a contractual basis. The respondent now resides at L.P No. 1 La Chance Trace, Arima. He is a Police Sergeant with the Trinidad and Tobago Police Service and is based at the Administration Building, Sackville Street, Port of Spain. The parties last lived and cohabited together at No. 255 Murex Street, Bon Air West, Arouca. The marriage was a childless one.

3 The Parties met sometime in June 1996 and subsequently became involved in 1997. The petitioner was lawfully married to the respondent on the 6th November 1999 at Arima Evangelical Church, Arima. Upon marriage, the parties moved into and lived at the home of the respondent situated at L.P No. 1 La Chance Trace, Arima. At the time of the marriage both parties were legal proprietors of their own respective parcels of land. The petitioner possessed a parcel of land in Bon Air West, Arouca while the respondent and his brother were, and currently still are, the joint owners of the property situated at No. 1 La Chance Trace, Arima.

4 Prior to the marriage the petitioner had intimated her desire to build a house upon the aforesaid parcel of land to the respondent. She was also in the process of obtaining a loan from the Trinidad and Tobago Mortgage Finance Company Limited (TTMF). Additionally, the petitioner lent the respondent $20,000.00 to deposit into his shares account with the Trinidad and Tobago Police Service Credit Union in order to enable him to secure a loan for $50,000.00 from the said Credit Union. Upon receipt of the loan on or about the 18th December 1998, the respondent gave the petitioner $48,000.00 which she employed in the construction of the matrimonial home. The construction of the house preceded the parties' marriage in November 1999. This house was constructed between the years 1999 and 2000. According to the Completion Certificate issued on the 18th February 2000 by Water and Sewerage Authority (W.A.S.A.), the plumbing on the subject premises was completed on the 16th February 2000. However there were still some minor works to be done on the house such as the installation of fittings and tiling of the floors.

5 Subsequently, around 2001 the parties moved into this house situate at No. 255 Murex Street, Bon Air West, Arouca which is now the subject matter of the instant case. They continued to work on the matrimonial home. The parties' marriage began to deteriorate in or about December 2002. The petitioner alleged that the respondent began spending long hours away from the matrimonial home. Conversely, the respondent claimed that the petitioner refrained from cooking and washing for him. Communication between the petitioner and the respondent became minimal. The relationship finally culminated when the respondent eventually took his personal belongings and moved out off the matrimonial home in or about early December 2003. He never returned to the matrimonial home to resume cohabitation with the petitioner as husband and wife. Eventually, the petitioner filed for a divorce on the 10th February 2006, the decree nisi was pronounced on the 31st day of March 2006 on the sole fact of unreasonable behaviour.

STATUTORY GUIDELINES

6 The Court referred to and applied the following sections of the Trinidad and Tobago Matrimonial Proceedings and Property Act, Ch 45:51 (“the Act”) in the instant case.

7 Section 24 (1)(c) provides as follows:

• (1) On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the Court may, subject to the provisions of section 34(1), make any one or more of the following orders:

• (c) an order that either party to the marriage shall pay to the other such lump sum as may be so specified.

8 Subsections 26(1)(b), (c) and (d) stipulate as follows:

• “(1) On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation, or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the Court may, subject to the provisions of sections 30 and 34(1), make any one or more of the following orders:

• (b) an order that a settlement of such property as may be so specified, being property to which a party to the marriage is so entitled, be made to the satisfaction of the Court for the benefit of the other party to the marriage and of the children of the family or either or any of them.

• (c) an order varying for the benefit of the parties to the marriage and of the children of the family or either or any of them any antenuptial or postnuptial settlement (including such a settlement made by Will or codicil) made on the parties to the marriage;

• (d) an order extinguishing or reducing the interest of either of the parties to the marriage under any such settlement,

and the Court may make an order under paragraph (c) notwithstanding that there are no children of the family.”

9 Subsection 54(1)(b) states:

“The Court, on granting a decree of divorce, if it is satisfied that both parties to the marriage have made a substantial contribution to the matrimonial home (whether in the form of money payments, or services, or prudent management, or otherwise howsoever), may, if it thinks fit, on the application of either party made before the decree of divorce is made, make an order (b) directing that either party pay to the other such sum, either in one sum or in instalments and either forthwith or at a future date and either with or without security, as the Court thinks fair and reasonable in return for the contributions made by that other party.”

10 Nonetheless, when executing its powers under sections 24 and 26 of the Act, section 27(1) of the Act mandates the Court to have regard to all the circumstances of the case and the factors outlined therein.

THE INCOME, EARNING CAPACITY AND PROPERTY OF THE PARTIES TO THE MARRIAGE

11 The petitioner earns a monthly gross salary of $9,200.00. Her monthly take home salary after deductions is $2,181.39. Additionally, the petitioner receives a Motor Vehicle Maintenance allowance of $1,000.00 per month. The petitioner is the sole owner of the land upon which the matrimonial home is built. However, the matrimonial home is currently mortgaged to the Trinidad and Tobago Mortgage Finance Company Limited. As at 30'h October 2006 the balance owing on the mortgage was $79,896.95. By an order of the Honourable Mr. Justice M. Holdip made on the 30th October 2006, Raymond and Pierre Limited assessed the former matrimonial home, situate at No. 255 Murex Street, Bon Air West, Arouca, to be of the value of $620,000.00 as at March 27th, 2007.

12 The petitioner also has a Life Evolution Life insurance Policy with Guardian Life. Nevertheless, she did not disclose the value of this policy. As at 30th October 2006 the petitioner had $21,936.00 invested in the Police Service Credit Union. Furthermore, she has a savings account with Republic Bank Limited which carried a balance of $3,000.00 as at the aforesaid date. The petitioner also owns a Hyundai Elantra Registration No. PBR 5488. She secured a loan in order to purchase this car. The Outstanding loan balance as at 30th October 2006 was $42,000.00. This car has been valued at $70,000.00.

13 The respondent currently earns a monthly gross salary of $7,075.00 per month. According to his evidence his monthly take home income as at May 17th 2006 was $2,200.00. Further, the respondent claims that this was supplemented by income he received from various side jobs. He avers that he is a skilled person who is quite competent in carpentry, masonry and painting. According to him he carries out side jobs in these fields. He also gave evidence that he offers his car for hire for special occasions such as weddings. Nevertheless, the respondent failed to declare these other sources of income to the Court prior to the trial. During cross-examination he claimed that he did not see the need to declare these other sources of income and that Police officers were required to have no other form of employment, hence his failure to declare these other sources of income. He admitted that he still presently receives income from these other sources.

14 The respondent is the joint owner of property situated at L.P.1 La Chance Trace, Arima. The respondent's mother donated the said property to him and his brother, Andre Timal, via a Deed registered as No. 55179 of 1985. This property comprises three bedrooms, toilet and bath, porch, living/dining room and a laundry room. By an order of the Honourable Mr. Justice M. Holdip made on the 30'h October 2006, Raymond and Pierre Limited assessed this property situate at L.P No. 1 La Chance Trace, Arima to be of the value of $590,000.00 as at March 13th, 2007. According to the respondent this house is also insured and he pays a yearly premium of $1,300.00.

15 The respondent also gave evidence of possessing a savings account with Republic Bank Limited but he failed to disclose the available balance in that account. The respondent also held two accounts with Unit Trust- an...