Joseph v Joseph
| Jurisdiction | St Lucia |
| Judge | Hariprashad-Charles J |
| Judgment Date | 31 October 2002 |
| Neutral Citation | LC 2002 HC 19 |
| Date | 31 October 2002 |
| Court | High Court (Saint Lucia) |
| Docket Number | SLU 1093(B) of 1996 |
High Court
Hariprashad-Charles, J.
SLU 1093(B) of 1996
Mr. Martinus Francois for the claimant.
Mrs. Michelle Anthony-Desir for the defendant.
Family law - Matrimonial proceedings — Property settlement — Property in St. Lucia — Parties domiciled in St. Thomas — Entire beneficial interest in respondent — Contributions made by wife — Whether the disputed property was community property under Articles 1190 to 1193 of the Civil Code — Finding that the claimant had contributed to the maintenance of herself and four children as well as buying various furnishings for the house and as such she had acted to her detriment in reliance on the common intention that she had a beneficial interest in the land and house — Finding that the claimant was entitled to a one-half interest in the two bedroom dwelling house.
Mr. and Mrs. Joseph are Saint Lucian Nationals. They were lawfully married on 27th day of June 1970 at St. John's Catholic Church, St. Thomas, U.S. Virgin Islands. After their marriage, they continued to live in St. Thomas. Mrs. Joseph still resides there. Mr. Joseph now lives permanently with his new wife in Saint Lucia.
On 24th day of August 1996, a decree of divorce was pronounced in the Dominican Republic bringing their twenty-six years of marriage relationship to an unhappy end. And like most divorces, this was the beginning of a bitter contest to decide their respective interests in a four-apartment complex which was constructed during the subsistence of the marriage on a lot of land at New Development, Soufriere registered in the Land Registry as Block 0231C 172.
The claimant claimed a one-half share in the said property. She based her claim on two grounds:
(i) That the property in question is part of the legal community existing between the defendant and herself in accordance with Articles 1190 to 1193 of the Civil Code and
(ii) Further or in the alternative, that she made valuable contributions to the improvement of the said property and as such she is a resulting or constructing trustee thereto.
The defendant contended that the land and the four-apartment complex were purchased with his separate funds. He asserted that he moved out of the marital home in 1982 and the land was brought the year after. He alleged that he bought the land with funds which he earned as a taxi-driver.
The defendant next alleged that sometime in 1985, he built a small two-bedroom dwelling house on the land with his own money with no contribution from the claimant except for a few of her things which she sent to the house. In 1992, he commenced construction of a four-apartment complex with his own funds and two loans from the National Commercial Bank which were radiated in 1997. In August 1997, his second wife and himself took a mortgage loan over the same property with the said bank, The existing mortgage has not been paid off.
In his two paragraph document entitled “claimant's Skeleton Arguments” filed on 12th day of March 2002, Mr. Francois for the claimant stated that the claimant will contend at the trial that the land and the four-apartment complex should be deemed to be community property by virtue of Articles 1190 to 1193 of the Civil Code of Saint Lucia. At the trial, Mr. Francois did not actively pursue this limb of argument.
Article 1(4) of the Civil Code defines “community” as follows:
“Community” means the common interest of a man and his wife in certain of their property, and is further explained in article 1188, et seq. The term is also used to designate the property to which this common interest attaches. The term “a community” or “the community” is always used in the latter sense.”
Article 5 of the said Civil Code states:
“The laws of the Colony govern the immovable property situated within its limits. Movable property is governed by the law of the domicile of its owner. But the law of the Colony applies to determine the nature of the property and in cases of disputed possession, and also in questions with reference to privileges and rights of lien, to the jurisdiction and procedure of the courts, to the mode of execution and attachment, to public policy and the rights of the Crown, and in other cases specified in the Code.”
The law of the Colony relative to persons apply to all persons being therein, even to those not domiciled there; except that the laws of status and capacity do not apply to persons domiciled elsewhere, and do apply to persons domiciled in the Colony, although they be absent therefrom.”
Article 1180 provides that:
“If no covenants have been made, or if the contrary have not been stipulated, the spouses are presumed to have intended to subject themselves to the general laws and customs of the country, and particularly to the legal community of property.
From the moment of the celebration of marriage, these presumed agreements become irrevocably the law between the parties, and can no longer be revoked or altered:
Provided, however, that where the marriage takes place outside the Colony and the husband is at the time of the marriage domiciled in the Colony, and no covenants were made before the marriage, the spouses may within six months from the date of the husband's first return to the Colony make a declaration in notarial form to the effect that they are married in separation of property, and such declaration shall have the effect of a contract of marriage stipulating for the exclusion of community and the separation of property and shall take effect as from the date of the marriage.”
The definition of “community” as contained in the Civil Code indicates that community of property is a question of status or matrimonial status. The definition signifies that community is a product, incident or consequence of the matrimonial status. In the well-known Saint Lucian case of Remy v. Prospere (1992) 44 W.I.R. 173, Sir Vincent Floissac, Chief Justice in delivering the judgment of the Court had this to say (at page 176G): “Since article 5 provides in effect that the St. Lucian laws relating to matrimonial status (which is the source of community) apply only to persons domiciled in St. Lucia, it follows that the St. Lucian laws of community do not apply to a husband who was not domiciled in St. Lucia at the time of his marriage.”
And according to Article 48 of the Civil Code: “The domicile of a person, for all civil purposes, is at the place where he has his principal residence.”
Mrs. Anthony-Desir for the defendant submitted that applying the principles which were so pristinely elucidated by Sir Vincent in Remy v. Prospere (supra), the defendant was domiciled in St. Thomas at the date of his marriage and as such, community of property would not apply.
In her witness statement, the claimant alleges that both the land and the four-apartment complex were part of the community between herself and her husband. Except for her bare assertion, the claimant has failed to prove that she was married in community of property.
It is accepted that the land as well as the two-bedroom dwelling house which was later demolished to facilitate the construction of a four-apartment dwelling house were acquired during the subsistence of the marriage. The land was purchased from Developers (Soufriere) Company Limited in the sole name of the defendant on 25th day of March 1983. The defendant alleged that on that date, he had already moved out of the matrimonial home but he and his wife were not yet divorced. The claimant painted a more colourful picture. She alleged that she and the defendant lived together at Bovvoni Building, Apt. 263, St. John, St. Thomas until 1996 although the defendant lived in St. Lucia intermittently during the period.
The claimant alleged that she made valuable contributions to the improvement of the property in dispute and as such, she is a resulting or constructing trustee thereto. She deposed that that her husband paid $300.00 for the land and stopped and she had to continue with the payment until the purchase price was fully liquidated. She also alleged that when the two-bedroom dwelling house was being built, she sent money to build it and when the four-apartment complex was completed, she sent chandeliers, face basins, lamps etc. Unfortunately, she was unable to provide any documentary evidence to substantiate her testimony.
The defendant alleges that the land and the property standing on it were all acquired with his own private funds with no contribution whatsoever from the claimant and that she is not entitled to any share of the four-apartment complex. However, under cross-examination, the defendant admitted that the claimant is entitled to a share in the two-bedroom dwelling house.
At paragraph 6 of his witness statement filed on 4th day of February 2002, the defendant stated as follows:
“The property in issue, Parcel No. 0231C 172 was purchased by me in 1983 from Developer's (Soufriere) Company Limited and is situate at New Development Soufriere. The purchase price was paid for with my funds from my work as a Taxi Driver in St. Thomas. During the marriage the claimant and I did not keep joint accounts. She worked as a housekeeper in St. Thomas. I maintained the home paying all the bills — utilities/rent/food. Her salary was used to maintain herself and provide for the children.”
It is therefore admitted that the claimant was not only a working mother but one who provided for and took care of four children. I found as a fact that the claimant did provide some of the paraphernalia for the two-bedroom dwelling house. The claimant alleged that she paid for the land and she sent money for the construction of the said two-bedroom house. In the absence of documentary evidence, I am unable to conclude that she did so. In fact, I prefer...
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