Thomas v Thomas
| Jurisdiction | Trinidad & Tobago |
| Judge | Ramkerrysingh, J. |
| Judgment Date | 19 October 2015 |
| Neutral Citation | TT 2015 HC 303 |
| Docket Number | FH 1676 of 2007 |
| Court | High Court (Trinidad and Tobago) |
| Date | 19 October 2015 |
High Court
Ramkerrysingh, J.
FH 1676 of 2007
Ms Beverly Lushington for the petitioner
Ms Shelly Perryman Jones for the respondent
Family Law - Husband and wife - Application for interim maintenance by the wife - Application heard orally and not made in writing as prescribed under the Family Proceedings Rules - Reasonableness - Application made eight years after the parties divorced - Standard of living.
Ramkerrysingh, J. Section 23 of the Matrimonial Proceedings and Property Act 1972 Ch 45:51 confers on the court authority to order periodical payments pending the determination of the suit, or interim maintenance pending final orders for financial relief ‘as the Court thinks reasonable’. [s. 23 On a petition for divorce, nullity of marriage or judicial separation, the Court may order either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition and ending with the date of the determination of the suit, as the Court thinks reasonable] The language used gives the court, in the words of French J in Offord v. Offord (1982) 3 FLR 309 at 312:
as wide and unfettered discretion as can be imagined'
It is against this backdrop that I have considered the respondent/Wife's oral application for interim maintenance, made on her behalf by Ms Perryman-Jones on 6th October 2015. For convenience I shall hereafter refer to the petitioner and the respondent as ‘Mr. T’ and ‘Mrs. T’ respectively.
The events leading to the Application now before me are as follows:
Mr. T petitioned the court for divorce on 17th September 2007 citing intolerable behaviour. Upon an application for substituted service, he was granted permission to post the petition to Mrs. T in America. By affidavit filed on October 25th 2007, it appeared that the order for substituted service had properly been complied with and a decree nisi was granted on 29th November 2007 and made absolute on 23rd January 2008. The file laid dormant until Mrs. T filed her Form 8 on July 7th 2015. In her first appearance on 6th October 2015, she stated that she had never been served with the divorce papers. This issue is the subject of a separate application yet to be determined.
The Financial Application sought relief for: (1) ‘periodical and lump sum payments; (2) ‘such property settlement as the court deems fit’ and (3) ‘costs, but at the Directions Hearing on leave was granted to amend the Application by deleting the claim in relation to property. Directions were given to both sides to file further information and the matter was adjourned to the 6th of April 2016.
At this juncture Ms Perryman-Jones made an oral plea on behalf of Mrs. T for interim maintenance. Mr. T objected on the basis that, contrary to Ms Perryman-Jones's declaration that Mrs. T was unemployed, he had information that suggested otherwise. The matter was adjourned to 15th October 2015 for both sides to address on the issue and Mr. T was given permission to issue a witness summons to Mrs. T's alleged employer.
Mr. Martin Hatem, Operations Manager and Director of Sports and Games Limited appeared on the Return Date in answer to the subpoena. He testified that Mrs. T had been employed as a Supervisor of the Grand Bazaar outlet of the sports store, but had not returned after satisfactorily completing her three-month probation (July-September 2015). He confirmed that she was no longer employed by the company.
Mrs. T asserts is that upon her return to Trinidad and Tobago in 2013, (Mr. T and the three children of the family had re-settled in Trinidad six years before), she worked as a Store Supervisor with Bang Bang, a retail clothing shop located in West Mall. However she found the ten-hour long shifts strenuous and had to give up the position. Since then she has had to rely on the children for financial support. The children are all employed, live with her in a rented apartment in Trincity and share the rent and other expenses.
The thrust of Ms Perryman-Jones's argument in favour of interim maintenance is that Mrs. T was financially dependent on Mr. T throughout the marriage. She enunciates that Mr. T provided all the maintenance for the family during the 20-year marriage and after his departure Mrs. T ‘was left in the United States and (sic) was required to work. That statement ventures the suggestion that, Mr. T abandoned Mrs. T in America leaving her to fend for herself. But this is not a true representation of the facts as deposed by Mrs. T.
She evinced that when Mr. T informed her in 2007 that he and the children were returning to Trinidad, she decided to remain in America. Albeit her decision was based on her belief that she would receive no financial aid from Mr. T had she accompanied them back to Trinidad, it was certainly not the case that she had been left forsaken and destitute by Mr. T. In fact her reason for staying behind was her financial independence, as by then the parties had been separated for two years and she had been maintaining herself without financial assistance during that time.
Mrs. T affirmed at paragraph 23 of her narrative: knew that if I returned home that the petitioner would not assist me financially and I was doubtful that I could support myself and the children financially if I returned to Trinidad so I took the decision to remain in the United states…’ Several reasonable assumptions arise from this statement: (1) That Mr. Thad not been providing financial help for Mrs. T for some time. (2) That her finances enabled her to adequately provide for herself and the children. (3) That she had no expectation of receiving any financial help from Mr. T. (4) That having established a measure of financial independence and stability in America, she was loathed to surrender it.
Mrs. T had indeed been unemployed for many years during the marriage and immediately following the breakdown her financial situation must have been as grave as she declares. But the marriage was over as far back as 2005 and the evidence indicates that she eventually emerged from her initial post-separation dilemma, to establish and maintain financial security and contribute to the children's general and educational expenses. She could even have afforded to be generous towards Mr. T, whom she said she yet sorry for … and made no efforts to redirect her (sic) salary …’ when she discovered that he was allegedly withdrawing money from a joint account into which she alone made deposits. The evidence also tells me that Mrs. T continued to be financially independent after the breakdown, right up to the time she returned to Trinidad. A period spanning eight years from 2005 to 2013.
The second argument advanced by Ms Perryman-Jones relates to the difficulties Mrs. T has faced in obtaining employment since moving back to Trinidad. She succeeded in obtaining supervisory stints with two retail establishments, but resigned each post when the work hours proved oppressive and in one case she disapproved of the menial tasks she was asked or expected to perform.
Mrs. T ought to be commended for the effort she has made and no doubt will continue to make, to regain her financial foothold, but there can be no denying that she faces a tough time in pursuit of that goal. She is...
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