Stephenson-James v James
| Jurisdiction | Trinidad & Tobago |
| Judge | Holdip, J. |
| Judgment Date | 01 January 2008 |
| Neutral Citation | TT 2008 HC 10 |
| Docket Number | FHO 1695 of 2006 |
| Court | High Court (Trinidad and Tobago) |
| Date | 01 January 2008 |
High Court
Holpid, J.
FHO 1695 of 2006
The petitioner present - Not represented.
Mrs. Hyacinth Griffith for the respondent.
Family law - Husband and wife — Separation agreement — Divorce — Refusal to honour separation agreement — Application for financial relief — Matrimonial Proceedings and Property Act, ss. 24, 26, 27 — Statutory guidelines — Separation agreement upheld.
Before me is an application for financial relief filed by the respondent/applicant on the 14th day of March 2007 seeking:
- an order for the settlement of property situate at No. 10 Term Drive Edinburgh 500 Chaguanas; and 2. Lump sum payment.
The parties were married on the 26th day of December 1989 at St John's Anglican Church, Petit Bourg. The marriage was a childless one. The petitioner last lived and cohabited with the respondent at the matrimonial home situate at No. 10 Tern Drive, Edinburgh 500. Chaguanas. The parties had obtained a loan in 1994 from the Republic Bank Limited to purchase the matrimonial home from the previous owners who had acquired the house from the National Housing Authority of Trinidad and Tobago. At the time of the transfer the respondent was working in Tobago therefore when the purchase of the house was completed the house was transferred in the sole name of the petitioner who was responsible for making payments to the National Housing Authority during the respondents absence. Nonetheless, the respondent made financial contributions towards the acquisition of the former matrimonial home.
The parties' marriage deteriorated and they separated in or about the month of July 2004. The parties have not resumed cohabitation since. Nevertheless, both parties continue to reside at the aforementioned address but they live in different households. Upon separation the parties signed a separation agreement on the 15th day of September 2006 for the distribution of the assets of the parties and for the payment of a lump sum of $25,000 by the petitioner to the respondent.
The petitioner filed for divorce on September 26th 2006 and was granted a decree nisi on the 10th day of November 2006. This was made final and absolute on the 29th day of January 2007. The parties' attempt at a settlement of the matrimonial home and assets proved unsuccessful when the respondent/applicant refused to honour the separation agreement of the 15th day of September 2006. Consequently, the respondent filed an application for financial relief on the 14th day of March 2006.
Filed Before the Court:
- On 26th September, 2006 the petitioner filed Notice of Proceedings and her petition for divorce. 2. On the 10th November 2006 the Honourable Mr. Justice M. Holdip granted a Decree Nisi of dissolution of marriage. 3. On 18th January 2007 the petitioner filed her application for the decree nisi pronounced in her favour on the 10‘h day of November 2006 to be made absolute. 4. On 29th January 2007 the decree nisi pronounced in the petitioner's favour on the 10th day of November 2006 was made final and absolute. 5. On 14th March 2007 the respondent filed an application for financial relief seeking (i) an order for the settlement of property situate at No. 10 Term Drive Edinburgh 500 Chaguanas: and (ii) Lump sum payment. 6. On 2nd May 2007 the Honorable Mr. Justice M. Holdip gave directions requiring (i) the respondent to file and serve his financial Application with evidence an accompanying affidavit (ii) the petitioner to file and serve her Evidence of Financial Position and accompanying affidavit (iii) the respondent to file his reply to the petitioner's affidavit to any new matter raised on the petitioner's affidavit. 7. On 22nd of May 2007 the respondent filed his supporting evidence for his Financial Application. 8. On 5th June 2007 the respondent filed his accompanying affidavit in support of his application for financial relief. 9. On 29th June 2007 the petitioner filed her Evidence of Financial Position and supporting affidavit. 10. On 28th November 2007 the respondent filed his Affidavit in response to the petitioner's affidavit filed on 29th June 2007.
The petitioner was previously employed with YTEPP as a teacher from 1990 to 1992. She is currently permanently employed as a Tailor 1 and has been working for the Ministry of National Security on Sackville and Edward Street Port of Spain since 1992. She earns a monthly gross income of $4991.00 and her monthly take home income is $2071.00. She also earns about $500 to $1200.00 per month from sewing. She also makes monthly contributions of $100.00 to a pension plan.
The respondent is a soldier with Airway Road. Chaguaramas Trinidad and Tobago Force. He earns a gross monthly salary of $9,014.50 and a monthly take home salary of $7587.10. The respondent worked with SUATT from June 2006 to January 2007 and received a non-taxable allowance of $5000.00. He pays $450.00 per month towards his pension plan. He is due to retire on the 10 th day of August 2008.
Both parties are presently employed. “The respondent appears to have always been in a better financial position to the petitioner and was the main breadwinner of the home.
In addition to the petitioner's monthly income she has approximately $23,000.00 in shares in the Eastern Credit Union as at the 4th day of December 2007. According to the petitioner's evidence of financial position as at June 29th 2007 the petitioner possessed the following assets:
| Republic bank savings account | – $7500.00 |
| Unit Trust | – $7190.00 (owned jointly with applicant) |
| Tax incentive plan | – $4200.00 |
| Toyota Corolla PAY 5595 | – $10,000.00 |
The matrimonial home is also registered in the petitioner's sole name and is valued at approximately $525.000.00.
The respondent receives a take home salary of $7587.10. As at May 22nd 2007 the respondent jointly owned property situate at Manzanilla Road Mayaro with his brother, Terrance James. He estimated this house to be worth about $30,000.00 but admitted in cross-examination that it may be worth more. He also possessed the following assets:
| Republic Bank savings account | – $15,000.00 |
| Toyota Corolla AE 91 PBG2621 | – $15,000.00 |
| Computer | – $3,000.00 |
During cross-examination on December 4th 2007 the respondent also admitted that he had a balance of approximately $56,000.00 in a Money Market Fund with Republic Bank, $46,000.00 of which was being held as security for a car loan he took with the bank. $500.00 is transferred every month to this account. He also has an account with the Hindu Credit Union which is valued at approximately $5,760.00 which was not disclosed in his financial statement. Furthermore, the respondent admitted that he has a T.I.S.P account with Republic Bank to which $300.00 is transferred every month for at least the past four years.
Initially, the parties first acquired land from the then National Housing Authority but they subsequently sold this in order to assist in the purchase of the former matrimonial home. The equity they received from this sale was supplemented by a loan which the parties secured from Republic Bank in order to purchase the matrimonial home and pay off the amount owing by the previous owners to the then National Housing Authority. The petitioner was responsible for making monthly payments to the then National Housing Authority of $797.77 while the respondent was responsible for the loan payment of approximately $1,100.00 per month to Republic Bank.
Unfortunately, the respondent was in Tobago during the completion of the purchase of the former matrimonial home and the responsibility fell upon the petitioner to attend to this matter and sign the necessary documents at the National Housing Authority. Consequently, the former matrimonial home was registered in the sole name of the petitioner and not in both parties' respective names as was initially intended. However, they decided to leave it as is with the intention that the respondent would apply for another house with N.H.A.
On September 15th 2006, the parties entered into and signed an agreement as to the distribution of the matrimonial assets. It was in pursuance of this agreement that the Plaintiff acted to her detriment and obtained a loan from the Trinidad and Tobago Mortgage Finance Company Limited (TTMF) in February 2007 for the sum of $175,000.00. This amount is to be repaid over a twenty-eight (28) year period. The petitioner presently services this loan by paying $1475.90 per month to TTMF. It was also agreed that the respondent would receive $25,000.00 from the petitioner for his share in the former matrimonial home and depending upon the amount she received on loan, she may have given him $40,000.00 instead. Nevertheless, the respondent refused to be bound by this agreement and demanded payment of his one-half share of the matrimonial home less the outstanding mortgage balance of $6,349.83 which was the outstanding balance prior to the current loan.
I have noted that some spouses negotiate with each other on the breakdown of their relationship, reach an agreement prior to the court hearing and then renege on its terms. The courts have taken these agreements into account. more readily than pre-nuptial agreements. Unlike pre-nuptial agreements, they are negotiated to deal with the actual realities existing at the end of the relationship, rather than unknown future possibilities. They have often been well thought out and drawn up after legal advice. However, the court must also take into account the possibility of emotional distress at the time of the divorce which could lead to issues of undue influence relating to the agreement.
In B v. B (Consent Order:...
To continue reading
Request your trial