Craig Laurie Barnard Petitioner/Respondent v Penelope Ann Barnard Nee Bird Respondent/Applicant [ECSC]

• Jurisdiction: St Lucia
• Judge: EDWARDS J
• Judgment Date: 05 May 2006
• Judgment citation (vLex): [2006] ECSC J0505-3
• Court: High Court (Saint Lucia)
• Docket Number: CLAIM NO. SLUHMT2001/0131
• Date: 05 May 2006

[2006] ECSC J0505-3

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

SAINT LUCIA

CLAIM NO. SLUHMT2001/0131

Between:

Craig Laurie Barnard

Petitioner/Respondent

and

Penelope Ann Barnard Nee Bird

Respondent/Applicant

Appearances:

Mrs. Brenda Floissac Fleming for Petitioner/Respondent

Mrs. Beverly Walrond, Q.C. and Mrs. Esther Greene Ernest for Respondent/Applicant

JUDGEMENT

INTRODUCTION

EDWARDS J

1 The Respondent's Application for Ancillary Relief has thrown up apparently unlitigated issues. They relate to the present status of 'separate property' of spouses in St. Lucia, the legal requirements and procedure for claiming an interest in such property during matrimonial proceedings, and the Court's statutory powers in making transfer of property orders under Section 24 (1) (a) of The Divorce Act.

2 By their Counsel's Statements of issues and legal arguments, the parties have sought the Court's interpretation of certain relevant provisions in the Divorce Act Cap 4:03 of The Revised Laws of St. Lucia (2001) and the Civil Code St. Lucia Cap. 242.

THE PRELIMINARY ISSUES

3 The following are the issues identified by the Legal Representatives of the Respondent (the Wife) in their statement of the preliminary issues filed on the 27 ^th January, 2006 and subsequently amended—

• "(1) The applicability of Section 45 of the Divorce Act of St. Lucia to the matters before the Court in circumstances where the property of the husband is represented by shares owned in a family business and/or in business owned jointly with his brother [See paragraphs 17–A to 17–K of this Judgement].

• (2) Whether Section 45 of the Divorce Act of St. Lucia may be applied in this case where the Application and the supporting affidavit filed by the Respondent/Wife under Section 45 were made after the decree nisi but before the decree absolute; and whether such Application is in accordance with the requirements that such an Application be made before the decree of divorce was pronounced? [See paragraphs 6 to 17 and 18 to 33 of this Judgement].

• (3) Whether Section 45 is fully determinative of the claim of the Wife to be granted property which under the law of the Civil Code is not "community property?" [See paragraphs 46 to 50 of this Judgement].

• (4) The applicability of Section 24 of the Divorce Act to property which is not community property within the meaning of the Civil Code; and the power of the Court to order a transfer of property found to be the sole property of either party within the meaning of the Civil Code St. Lucia under Section 24 [See paragraphs 50 to 97 of this Judgement].

• (5) The relationship between the Civil Code provisions and Sections 22, 24 and 25 of the Divorce Act [See paragraphs 50 to 97 of this Judgement].

• (6) The applicability and relevance of the English cases decided under the English legislation the Matrimonial Causes Act 1973, Section 25 to theinstant case, having regard to the Civil Code of St. Lucia" [See paragraphs 50 to 97 of this Judgement].

  [3–A] The preliminary issues in the Statement of Issues filed on the 30 ^th January, 2006 by Counsel for the Petitioner (the Husband) are—

• "I. …

• II. Whether it is only matrimonial properties (i.e. properties which are not separate properties and which were acquired by the spouses during marriage and as a result of the labour of both spouses) which are available for distribution between the spouses with the result that, subject to the doctrine of implied, resulting and constructive trust and a spouse's right to compensation for domestic contribution, each spouse is entitled to retain his/her separate properties as defined in Articles 1192 to 1199 inclusive of the Civil Code as preserved by Section 45 (b) of the Divorce Act? [See paragraphs 50 to 97 of this Judgement]

• III. …

• IV. Whether the Respondent is entitled to compensation (under Section 45 (b) of the Divorce Act) for domestic contributions (by way of domestic services rendered as a wife, mother and household manager) to the improvement, enhancement in value, preservation or retention of the Petitioner's separate properties: [See paragraphs 35 to 45 of this Judgement].

• V. Whether the statutory powers of a Saint Lucian Divorce Court are as extensive as the Statutory powers of an English Divorce Court in relation to the making of an order transferring upon a claimant, rights and interests in the separate properties of the claimant's spouse? [See paragraphs 50 to 97 of this Judgement]

• VI. Whether the Respondent holds her separate properties on an implied, resulting or constructive trust in favour of the Petitioner by reason of the Petitioner's substantial external or extra-matrimonial contributions to the acquisition, improvement, enhancement in value, preservation or retention of those separate properties? [See paragraphs 35 to 45 of this Judgement].

• VII. …

• VIII. …

• IX. Whether Section 25 (1) of our Divorce Court… purports:-

  • (1) …

  • (2) to confer upon a wife proprietary rights over the separate properties of her husband when the wife has not made any substantial contribution to the acquisition, improvement, enhancement in value, preservation or retention of those separate properties…? [See paragraphs 50 to 97 of this Judgement]

  • (3) ….."

4 I propose to deal with these issues by endeavouring to answer four (4) simple questions—

• (A) What is the procedure and law governing one spouse's claim to an interest in the separate property of the other spouse in St. Lucia?

• (B) What is the nature of the contributions necessary to prove a spouse's claim under Section 45 (b) of the Divorce Act?

• (C) What is the nature of the order that the Court is empowered to make under Section 45 (b) of the Divorce Act:

• (D) Can a Court order that the separate property of the husband be transferred to the wife in an Application under Section 22 and 24 (1) (a) of the Divorce Act?

5 In dealing with Question A, it is necessary to refer to the background and relevant facts concerning the Applications for Ancillary Relief in this case. Question A embraces the Preliminary Issues Nos. 2 and 1 in the Wife's Statement of Issues.

BACKGROUND FACTS

6 The parties were married on the 25 ^th January, 1975. Prior to their marriage they were living together. On the 18 ^th December, 2001 the husband petitioned for divorce. An answer and cross petition were filed for the wife on the 17 ^th January 2002. An Amended Petition was filed with leave on the 15 ^th May, 2002. Thereafter, on the 17 ^th May 2002 a decree nisi of divorce was granted. On the 4 ^th March, 2005 the decree nisi of divorce was made absolute.

7 The wife did not apply for Ancillary Relief in her answer and cross-petition. In the Decree Nisi Order, Ancillary Relief Proceedings were adjourned to Chambers for hearing on a date to be fixed by the Court Administrator on application of either party.

THE LEGAL REQUIREMENT FOR APPLICATIONS

8 The Divorce Rules 1976 require a Petitioner or Respondent to make an application claiming Ancillary Relief for maintenance pending suit, periodical, secured periodical or lump sum payments orders, settlement or transfer of property orders, or variation of settlement orders in their petition or answer: (Rule 50)

9 Otherwise, the Petitioner or Respondent must apply to the Court for LEAVE before making any such claim by Notice in Form 15: (Rule 50 (2) (a)).

10 Rule 50 (2) (b) permits a late application for such Ancillary Relief to be made without LEAVE where the parties are agreed upon the terms of the proposed order, if the claim was omitted from the petition or answer.

11 Rule 50 (3) seems to me to cover Applications for Ancillary Relief claiming an avoidance of disposition order or a variation order, given the definition of "Ancillary Relief" in Rule 2.

Rule 50 (3) contemplates that such Applications should be made without leave by Notice in Form 15 also.

12 Rule 75 of the Divorce Rules 1976 states that Applications for a property order under PART 4 of the Divorce Act, (which includes Section 45) must be made by Summons with supporting Affidavit verifying the statements in the Application. Rule 84 states that every application in matrimonial proceedings shall be made by summons, except where these rules or any other applicable rules provide otherwise.

THE LAW OF SEPARATE PROPERTY

13 Section 45 (b) of the Divorce Act states—

"45 The Court, on making a decree of divorce…may, if it thinks fit, on the application of either party made before the decree of divorce…is made, make an order—

• (a) …

• (b) if any property of the parties or either of them is separate property within the meaning of the Civil Code and the Court is satisfied that the other party has made a substantial contribution (whether in the form of money payments, or services, or prudent management, or otherwise howsoever) to the improvement or preservation of such property—

  • (i) directing the sale of such property and the division of the proceeds, after the payment of the expenses of the sale, between the parties in such proportions as the Courts thinks fit, or

  • (ii) directing that either party pay to the other such sum, either in one sum or in installments and either 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."

14 "Separate property" under Article 1192 (2) of The Civil Code of St. Lucia includes—

• "(a) property, movable and immovable which the spouses possess on the day when the marriage is solemnized;

• (b) the income and earnings of either spouse, investments in the name of one spouse…

• (c) property, movable and immovable, acquired by succession, or by donation or legacy made to either spouse particularly;

• (d) …

• (e) fruits, revenues and interest of whatever nature they be, derived from separate...