Mary Aulina Joseph Plaintiff v Theophilas George Joseph Respondent [ECSC]

• Jurisdiction: St Lucia
• Judge: Barrow J. (Ag.)
• Judgment Date: 08 March 2001
• Judgment citation (vLex): [2001] ECSC J0308-6
• Court: High Court (Saint Lucia)
• Docket Number: Civil Suit No. D80 of 1998
• Date: 08 March 2001

[2001] ECSC J0308-6

IN THE HIGH COURT OF JUSTICE

(Civil)

Civil Suit No. D80 of 1998

Between:

Mary Aulina Joseph

Plaintiff

and

Theophilas George Joseph

Respondent

1 Barrow J. (Ag.) The following is the transcript of an oral judgment I delivered.

Barrow J. (Ag.)

2 This is an application for ancillary relief following the granting of a decree nisi of dissolution of marriage. The orders that the wife seeks relate to land at Castries, parcel 1045B 45 which the wife says is community property and she wants the Respondent to pay her for her one-half share. The parties are agreed that there is a value of $40,000 which I may attach to that property.

3 The application also relates to land at Entrepot, Castries, parcel 1047C27. The Petitioner wants the Respondent to transfer to her his rights title and interest in this land and also his one-half share in the dwelling house thereon in which they both resided as at the date of the application and in which Counsel informed me they continue to reside. The Petitioner seeks in relation to that parcel of land, which she regards as comprising two lots, that Lot 17 should be given to the Respondent and she says she will transfer her one-half share in the building thereon to the Respondent.

4 The Petitioner seeks in relation to vehicle No.488 that the Respondent should transfer to her this vehicle or the Respondent should pay to the Petitioner the value of the vehicle. And then there is a farm vehicle, FAR974, which the Petitioner is content to give to the Respondent. The Petitioner seeks, as well, a maintenance order that the Respondent be made to pay her $800.00 a month.

5 The natural starting point is the income, the earning capacity, the property and the other financial resources possessed by each party. The Petitioner was born in 1949. The evidence before me, in the case of the wife, is that she makes a net income of $900.00 monthly. The testimony is that she is likely to lose her job when her employers down-size. She has of, course, the half share in the $40,000.00 property and she has her claim in the matrimonial house.

6 The husband says that he makes a monthly income of $1,500.00. The wife says that he gets $500.00 rent from the property in addition to that. The wife says that the Respondent receives a pension from the Government in an undisclosed amount and that the husband receives as well an income from using the vehicle to transport guards and cash for his employers. The husband also own the one-half share of the Gesneau property and the husband has standing in his name the land at Entrepot which the wife says is valued at $120,000. The husband owns as well two and one-fifth acres of land at Laborie parcel 0824B51. He owns, according to the wife, a three-quarter share in 4.50 hectares of land at Derriereda, in Laborie, parcel No. 0825B38. He owns 5,000 sq.ft of land at Laborie, parcel 0825B 38. He owns 5,000sq.ft. at Laborie parcel 0820D 40, with a three bedroom house, a farm vehicle which the wife says is valued at $30,000.00; and he owns a vehicle No.488 which the wife says is valued at $85,000. The wife says that the husband cultivates and sells crops from the Laborie property and that he cultivates and sells crops from the Gesneau property.

7 There was a significant failure on the part of the Respondent to make full disclosure of his property and income. I note that there was no challenge in cross examination to the property and to the income streams to which the wife testified. I put the Respondent's failure to disclose anything about his income and property, except in a defensive way, on a level of offensiveness almost as great as the Respondent's offer of a lump sum payment of $4,000 to the wife in full satisfaction of all her claims.

8 The Petitioner claims on two bases. She claimed on the basis of community property and on the basis of family assets, grounded on section 25 of the Divorce Act. It is, of course, by now recognized that there are very wide powers given to the courts under section 25 and it will be useful to remind myself of these.

9 Section 25 reads:

It shall be the duty of the Court in deciding whether in exercising its powers under sections 22,23,24 in relation to a party to the marriage and if so in what manner to have regard to all the circumstances of the case including the following matters:

• (a) that is to say the income earning capacity, property and other financial resources which each of the party to the marriage has, or is likely to have in the foreseeable future;

• (b) the financial needs, obligations and responsibilities which each of the party to the marriage has, or is likely to have in the foreseeable future;

• (c) the standard of living enjoyed by the family before the breakdown of the marriage;

• (d) the age of each party to the marriage and the duration of the marriage;

• (e)

• (f) contributions made by the parties to the welfare of the family including any contributions made by looking after the home or caring for the family;

• (g) in the case of proceedings for divorce or nullity, the value of either of the party to the marriage of any benefit. e.g. pension, which, by reason of the dissolution or annulment of the marriage that party will lose the chance of acquiring;

and so, to exercise those powers as to place the party as far as it is practical and having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other.

10 Counsel for the Petitioner presented full skeleton arguments with ample authorities in support of her contention and I am grateful for this assistance. I was not similarly favoured by Counsel for theRespondent who sought to argue on the material provided by the Petitioner.

11 Counsel for the Respondent focused on the term "family assets" and relied on the definition given inLang v Lang (Saint Lucia), Suit 30 of 1991, at page 18: "The term [family assets] is defined at page 830 of Wachtel" to refer to things acquired by one or other or both parties with the intention that there should be continuing provision for them and their children during their joint lives and use for the benefit of the family as a whole". So, relying on that, Counsel for the Respondent said that whatever was acquired before marriage falls completely outside the scope of family assets; and for the wife or any party to have any claim to such an asset she must prove that she made substantial contributions to the improvement or preservation of such property. Absent that, said Counsel for the Respondent, as a matter of law the Court cannot exercise any jurisdiction in relation to such property.

12 In my...