Samlal v Samlal

• Jurisdiction: Trinidad & Tobago
• Judge: E. J. Donaldson-Honeywell
• Judgment Date: 13 December 2016
• Neutral Citation: TT 2016 HC 422
• Docket Number: H.C.A. No. MAS 494 of 2011
• Court: High Court (Trinidad and Tobago)
• Date: 13 December 2016

IN THE HIGH COURT OF JUSTICE

Sub-Registry, San Fernando

(Matrimonial)

Before

THE HON. MADAM JUSTICE E. J. Donaldson-Honeywell

H.C.A. No. MAS 494 of 2011

Between

Neil Samlal

Petitioner/Respondent

and

Parbaty Pooransingh Samlal

Respondent/Applicant

Appearances:

Mr. H. Seunath SC, Attorney-at-Law for the Petitioner/Respondent

Ms. Devi Ramnarine, Attorney-at-Law for the Respondent/Applicant

Family law - Divorce — Order for financial Provisions — Whether the Petitioner should be ordered to pay to the Respondent a lump sum representing half of the Petitioner's business and half share of the fixed deposit — Whether the Petitioner should continue to pay maintenance — Court's considerations in granting an award for financial provisions — Conduct of the Petitioner — Respondent's contributions to the business — Whether adverse inferences should be drawn based on the Petitioner's non-disclosure — Parties' income — Financial contributions — Clean break — Matrimonial Proceedings and Property Act Sections 24(1), 27 — Wachtel v. Wachtel [1974] All E.R. 830 — Dove v. Dove H.C.A No. M-622 of 2001 — White v. White [2001] 1 All E.R. 1.

I. Factual Background

1 The Petitioner (husband) and Respondent (wife) were married on 13 May, 1990. They had two sons together, Renaldo Samlal born 9 November, 1992 and Reegan Samlal born 26 November, 1997. On the Petitioner/husband's petition the marriage was dissolved after twenty-three years by decree absolute on 21 September, 2012.

2 Thereafter the Respondent filed an application for ancillary financial relief on 5 December, 2013 and affidavits were subsequently filed by both parties in support and in opposition.

3 The parties first lived with the Petitioner (husband)'s mother for one and a half years. Thereafter, they moved to the Respondent (wife's)'s family home for around three years. The parties then purchased their own home at No. 21 Black Street, Reform, assisted by a short-term mortgage which has since been paid off. During the divorce proceedings the Petitioner transferred his undivided share in that home to their two children.

4 The Petitioner worked as an electrician before the marriage and became licensed shortly after, starting his own electrical business on the ground floor of the home. The Respondent claims that she assisted in the operations of the business and took care of the household and the children.

5 The business grew from 1995 to 2009 and separate accommodation was made for its expansion. A two-acre parcel of leasehold land was secured from Caroni (1975) Limited at No. 123 Guaracara/Tabaquite Road, Harmony Hall Village, Reform. The Petitioner avers that this is a year-to-year tenancy. No documentation of this leasehold interest was presented in evidence.

6 By 2009 the commercial property was constructed on the lands and the family business relocated to No. 123 Guaracara/Tabaquite Road, Harmony Hall Village, Reform. There was only evidence of personal loans, which the Accountant averred were spent on building the commercial property.

7 The Respondent (wife) claims she had an office in the building and continued working as usual. She claims to have received a salary of Two Thousand Dollars ($2,000.00) for her work, performing clerical and organizational duties, at her husband's business place of which she spent the majority on household expenses. The Petitioner (husband) on the other hand claims that she had a very minimal role in the business and that the salary she received was only for personal expenses.

8 It is accepted by both parties that after the business expanded, the profits from the business wholly maintained the family to a much higher standard. This standard of living including large savings and travels abroad.

9 The Respondent claims that the Petitioner was abusive towards her during the marriage and had several extra-marital affairs. The Petitioner denies these allegations. Similarly, the Petitioner accuses the Respondent of having an extra-marital affair which resulted in the breakdown of the marriage. This is also denied by the Respondent.

10 After the parties separated in 2011, the Petitioner (husband) moved out of the matrimonial home and began to reside at the business premises, leaving the children with the Respondent.

11 A Divorce petition was filed by the Petitioner on the grounds of “unreasonable behaviour” and it named the Respondent's alleged partner. Around this time, the Petitioner claims the wife's salary was reduced to One Thousand Two Hundred Dollars ($1,200.00) per week. In September 2013 the divorce was granted. Thereafter, the Respondent (wife) was made to leave the business premises and no longer worked for the business.

12 An interim arrangement was made for the Petitioner to pay Four Thousand Dollars ($4,000.00) per month towards the maintenance of the household as well as the cable and electricity bills commencing sometime prior to September, 2013 as noted in correspondence from the Petitioner's Attorney. He also transferred to the Respondent motor vehicle No. PCD 1826 for which she was thenceforth responsible for fuel costs.

13 The Respondent claims:

• a. A sum of One Million, Three Hundred Thousand Dollars ($1,300,000.00) particularised as follows:

  • i. A lump sum payment of Six Hundred and Twenty-Five Thousand Dollars ($625,000.00) in respect of the business premises situate at Harmony hall, Reform representing half of the assessed value of the building.

  • ii. A lump sum payment of One Hundred and Ninety-Two, Six Hundred and Fifty-Eight Dollars ($192,658.00) being half of the written down value of other fixed assets of the business; and

  • iii. A lump sum of Three Hundred and Fifty-Three Thousand, Two Hundred Dollars ($353,200.00) being half the value of the projected closing stock for 2016;

• b. A lump sum of One Hundred and Thirty-two Thousand Dollars ($132,000.00) being half of the proceeds of the fixed deposit of Two Hundred and Sixty-Four Thousand Dollars ($264,000.00);

• c. That the Petitioner do continue to bear the educational costs of the children of the family;

• d. That the Petitioner do continue to pay Four Thousand Dollars ($4,000.00) for the maintenance and benefit of the younger child of the family; and

• e. Costs.

14 The Petitioner in response submits that he is unable, based on his income and assets, to pay a financial provision award in the range claimed. Further, he claims the Respondent (wife) by allegedly engaging in adultery has committed gross or serious misbehaviour during the marriage and therefore should receive a share of nil in the matrimonial property.

II. Issues

15 The issues in the present case are as follows:

• a. Whether the Petitioner should be ordered to pay to the Respondent a lump sum representing a half share in the Petitioner's business;

• b. Whether the Petitioner should be ordered to pay to the Respondent a lump sum representing a half share of the fixed deposit sum; and

• c. Whether the Petitioner should continue to pay Four Thousand Dollars ($4,000.00) towards the maintenance and benefit of the younger child of the family.

III. Law and Analysis

16 The court is empowered by S. 24(1) of the Matrimonial Proceedings and Property Act, Chap. 45:51 (“MPPA”) to make orders for financial provision for a party to a marriage, either in the form of periodical payments or as a lump sum.

17 In the present case, the Respondent has applied for such provision from the Petitioner. In considering whether to make such an award and in what sum, the court must have regard to all the circumstances of the case, and in particular, the following factors outlined in S.27 MPPA:

• a. The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

• b. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

• c. The standard of living enjoyed by the family before the breakdown of the marriage;

• d. The age of each party to the marriage and the duration of the marriage;

• e. Any physical or mental disability of either of the parties to the marriage;

• f. Contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

• g. Any order made under section 53;

• h. In the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring,

18 There is also a further proviso in S. 27(1), referred to as the “tail-piece” consideration which states that the court must exercise its powers so as to “place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been in if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards each other”.

19 Both parties, in their submissions, sought to relate the evidence presented to the Section 27(1) consideration in supporting their respective proposals on the order that should be made. The evidence and submissions are now addressed under the relevant headings.

The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future:

20 There is some dispute as to what now constitutes the Petitioner (husband)'s financial position. The Petitioner's financial statements show an average annual income of One Hundred and Forty Thousand Dollars ($140,000.00) from his electrical business. The Respondent also earns one-third of the rent from his mother's property at La...