T v T
| Jurisdiction | Trinidad & Tobago |
| Judge | Lucky, J. |
| Judgment Date | 25 July 1997 |
| Neutral Citation | TT 1997 HC 148 |
| Docket Number | Nos. M 153 and 2595 of 1993 |
| Court | High Court (Trinidad and Tobago) |
| Date | 25 July 1997 |
High Court
Lucky, J.
Nos. M 153 and 2595 of 1993
Mrs. L. Seebaran-Suite and Ms S. Rahaman for the petitioner.
Mr. Nelson S.C., instructed by M. K. Harper and Company for the respondent.
Family law - Matters of ancillary relief — Petitioner sought a transfer of the matrimonial home to her, periodical payments for her support and an order for exclusive occupation of the matrimonial home — Respondent also sought a declaration for title or possession to the same which he occupied — Court found that the wife was entitled to one half share in the matrimonial home — Section 27(1) of the Matrimonial Proceedings and Property Act, Chap. 45:51 considered.
By notice of 12th July 1993 the petitioner (wife) seeks a transfer of property i.e. the matrimonial home situate at 13 Champs Elysees Road, Maraval; periodical payments for her support; and, by an application of 20th November 1993, for exclusive occupation of the matrimonial home.
By summons of 30th July 1993 the husband seeks a declaration as to the title and/or possession of the matrimonial home and to 13 Springbank Avenue, Cascade which he presently occupies.
The court heard submissions of learned counsel with respect to the summons of 30th July 1993 but before giving its decision, counsel asked that the judgment on that issue be reserved and delivered immediately before that of the notices of 12th July and 30th November, since this summons deals with strict property rights.
After considering evidence and hearing submissions on strict property rights, counsel prevailed upon the court to deal with all the summonses and notices, because most of the evidence on both matters would substantially be the same. This court should deal with the summonses and notices, rather than another court because some judges had disqualified themselves for the reason that they knew the parties and the list in the matrimonial court had been fully prepared for several months. Further, the parties were anxious to have the completed and felt that the matter will be heard expeditiously. In view of the protracted time and hearings the court took a pragmatic approach and agreed to determine all the matters, because litigation ought to come to an end at some time and prolonged litigation defeats justice; moreso, where the parties are over sixty years, they need to plan for retirement and it must be noted that properties may depreciate in value.
The parties to these applications were married on 16th December 1961. They have three(3) children, all of whom are over 18. The youngest, Derek was born on 2nd December 1970. The wife is an accomplished musician whose contribution to education and cultural life in the country is well-known. The husband is an eminent senior counsel who was invited to the Inner Bar as a Queen's Counsel in 1970. She is 62 and he is 64. Their ages are relevant to the issues because both are just over the usual age of retirement. Nevertheless in their respective fields; hers, a graduate teacher of music and his, as an attorney they continue to work. Both had and continue to have exquisite tastes and were accustomed to lifestyles commensurate with their status in their respective professions.
A decree nisi of divorce was granted on 8th June 1993 based on five years separation. Unhappy differences had arisen, the parties did not speak to each other, although they continued to live at 13 Champs Elysees Road, Maraval, in effect they lived separate lives. They ceased sharing the matrimonial bed and bedroom and some time thereafter in August 1992 the husband left the matrimonial home. The wife says he deserted her; he says, he “escaped”, “there being a fine distinction between desertion and escape”, from her unbearable idiosyncracies. The wife describes his behaviour as follows:
“From the inception of the marriage the respondent was difficult to live with, irascible, bad tempered, foul-mouthed and always attempting to dominate me …he would express contempt for my job. He was also a heavy drinker and this took its toll on our family fife…” Affidavit of the wife of 1 /6193 (para 9).
The marriage was seemingly happy from 1961–1984 thereafter it deteriorated.
Litigation commenced with the filing of the petition for divorce on 25 th February 1993. There were interlocutory hearings, which included a judgment for maintenance pending suit. After a series of somewhat long protracted adjournments, the matters were heard by this court. The submissions and cross-examination began on 22 nd November 1995 when the first application was heard, this ended on 4 th November 1996. There was a lull in proceedings between 12th December 1995 and 4th November 1996. It was originally felt another judge would have heard and determined the applications for a transfer of property, lump sum or periodical payments and exclusive possession. However, several judges disqualified themselves because they knew the parties very well. So, the parties asked that I in adjudicate in all the matters, firstly because the evidence was substantially the same in both applications and the parties expressed confidence in the judge. The court hearings ended on 2nd June 1997.
The evidence comprises affidavits in support of the applications; affidavits in response and the testimony (cross-examination) of the husband.
The following are the affidavits in support of the application (H.C.A.M-153/93).
The affidavit of the wife of 22/4/93
The affidavit of the wife of 1 /6/93
The affidavit of the wife of 4/11/93
The affidavit of the wife of 20/11 /93
The affidavit of Salma Bahaman of 8/10/93
The affidavit of the wife of 20/11 /95.
The following are the affidavits of the husband in response:–
Affidavit of the husband of 4/5/93
Affidavit of the husband of 24/6/93
Affidavit of the husband of 24/6/93
Affidavit of the husband of 30/7/93
Affidavit of the husband of 18/4/94
Affidavit of the husband of 10/5/95
The following were also considered although they apply to High Court action no. 2595/93.
The affidavit of the husband of 6/11/95
The affidavit of Marvo Harper of 18/4/94
The affidavit of Marvo Harper of 17/5/94
And the particulars of the husband of 10/5/95,
This action deals with strict property rights. Learned counsel insisted that this application ought to be heard and determined before applications which relate to exclusive possession of the home and a transfer of property, periodical payments, and/or payment of a lump sum.
It was only when this matter was almost complete that learned counsel sought to have all the matters heard by the same judge. The court agreed in order to put an end to the extended litigation in the High Court, and, perhaps all litigation. It is my view that a court where it is possible, determine such a matter in an expeditious manner.
It was agreed that the matters are so interwoven that findings in one must relate to the others.
Mr. Nelson submits that the husband seeks an order that the properties be sold in accordance with section 12 of the Married Persons Act and section 4 of the Partition Ordinance which for purposes of easy reference are set out hereunder:–
“12.(1) Subject to this section, in any question between husband and wife as to the title to or possession of property, either party may apply by summons to a Judge, and the Judge may make such order with respect to the property in dispute as he thinks fit, or may direct the application to stand over from time to time, and any enquiry touching the matters in question to be made in such manner as he thinks fit.
(2) For the avoidance of doubt it is hereby declared that any power conferred by subsection (1) to make orders with pact to any property includes power to order a sale of the property.” (Emphasis mine).
Section 4 of the Partition Ordinance reads:
“4. In a suit for partition, where, if this Ordinance had not been passed, a decree for partition might have been made, then if the party or parties interested, individually or collectively to the extent of one moiety or upwards in the property to which the suit relates, request the Court to direct a sale of the property and a distribution of the proceeds instead of a division the property between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly, and give all necessary or proper consequential directions.”
The wife gives a history of their relationship and financial contributions in her affidavit of 4th November, 1993 in which she denies allegations in paragraph 8 of the husband's affidavit of 8 th October 1993 and sets out in paragraph 19 her contribution as a working wife and mother. Paragraphs 19 and 26 are set out here:
“19. I deny the allegations contained in paragraph 8 of the applicant's second affidavit. I was a working mother of three children who did not have a full-time maid because at that time it was difficult to get a maid to work for any length of time. I had to prepare breakfast for the family, get the children ready for school and transport all three children to different schools. At that time the traffic around the savannah was two way and very often I would be struck in the traffic for as long as 1 hour. Even when I left home at 6:45 am I would be late for Assembly at school. The applicant would still be in bed whilst I had to hustle in the heat of the morning to get the children to school. In addition as I deposed in my affidavits filed herein in High Court Action No. 153 of 1993, the applicant was subject to bouts of illness throughout the marriage and in addition to bearing the sole responsibility of the three children of the family; I would have to take care of the respondent myself for we never employed a nurse. In...
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