OLIVER v OLIVER

REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE (Family Court Division) No: FH 01211 of 2005 WINSTON OLIVER Applicant AND SANDRA OLIVER Respondent Before: Date: The Honourable Madam Justice A. Ramkerrysingh 03rd December, 2007 Appearances: Mr. Ulric Skerritt for the Petitioner; Mr. Phillip Taylor Lamont instructed by Mrs. Doril BecklesLamont for the Respondent. JUDGMENT Page 1 of 19 Introduction VMr. and Mrs. Oliver (“The Husband” and “the Wife” respectively) were married in April 1982. At the time of the marriage neither of them had substantial sums of money so they moved in with the Wife’s parents, while a two room apartment was being built in the downstairs portion of the Husband’s mother’s house. The downstairs apartment (“the apartment”) was ready two months later and the parties settled there until they purchased their own home, from the looks of it, as seen on the photograph submitted with the Valuation Report, a charming three-bedroomed townhouse situate at 4 Carib Villas, Carib Avenue, Lawrence Park, Arima. Their new home (“Carib Villas”) proved to be too much of a financial burden on the Husband and after the first two payments on the mortgage, he announced to the family that they would have to vacate the premises. The Husband returned to his mother’s premises re-occupying the apartment while the Wife initially moved in with one of her sisters, before migrating to America in August 1988. The Husband filed for divorce in July 2005 relying on the fact that that the parties had been living separate and apart for at least five years immediately preceding the presentation of the petition. The date of separation was given as August 1988. The decree nisi was pronounced on the 3rd day of November 2005. The Wife filed her Form 8 Application seeking sale and consequent equal division of proceeds of Carib Villas which was issued out of the registry on the 10th January 2007. The Factual Matrix: The Wife’s evidence is that upon their marriage the parties lived at her parents’ home as stated above, while the apartment was being constructed, the cost of which was met by the parties. The apartment comprised two rooms and according to the Wife, as soon as they moved in, the Respondent’s mother promptly put her own mother into occupation of one of the rooms. This, according to the Husband was entirely untrue, in that the Page 2 of 19 intention had always been that the apartment was to house both the parties the Husband’s grandmother, a fact of which the Wife was well aware. Moreover, he said that the construction costs were borne entirely by his mother and he rendered labour in exchange for rent-free accommodations for he and the Wife. The Wife complained that she was not happy in the apartment as she was constantly being reminded that the house, including the apartment, belonged to the Husband’s mother. She acknowledged that the Husband continued to expand their tiny accommodation adding a kitchen, living room two bedrooms and external lavatory. The Wife then says that she saved towards funding their own home and to that end became a member of the domestic saving scheme popularly known as “sou-sou”, through which she was able to save a total of $13,000.00, which was used to pay the down-payment and legal fees, in all amounting to $16,000.00. She said although she paid this substantial payment towards the down-payment “it took both their [sic] salaries to qualify for and meet the monthly mortgage payments.” It is to be noted that the Wife provided no substantiating evidence of any of these payments. The Husband’s version of the above is, as would be expected vastly different and to me, represents the more credible version of the facts. I pause here to comment generally, that throughout these proceedings where there was a disparity in the evidence, I prefer the Husband’s version over the Wife’s. I have found the Husband to be a coherent, sound and honest witness. He was able to provide details, both in his evidence and under cross-examination that only one with direct knowledge could possess. He was firm and forthright in his answers and where appropriate, supported his statements with concise yet conclusive documentary proof. He withstood cross-examination well and remained unfettered throughout. The Wife’s testimony on the other hand, I found to be evasive and littered with inconsistencies, vagueness and discrepancies. The Husband’s evidence as it relates to Carib Villas, is that he and the Wife were unable to pay the required down-payment of $23,000.00 and were given the concession by the Vendor to pay it by way of instalments, over a six-month period. He said that he Page 3 of 19 borrowed the sum of $18,000.00 from the Cathedral Credit Union [his documentary proof “WO1” bears this out] and the remaining balance of $5,000.00 being funded through the joint efforts of himself and the Wife. In his evidence and under cross examination he said that her contribution to the $5,000.00 amounted to $2,000.00. Indeed he said that was the total sum of her contribution to Carib Villas. From here on the facts take a decidedly different turn. The Wife says that after 16 months or so of occupation the Husband suddenly informed her that he could not meet his obligations and that they would have to move out of the house. The next day he brought a truck, loaded all the furniture onto it and divided the items between the Wife’s sister’s home and his mother’s home, presumably in an attempt to divide the household contents between them. He went back to the apartment, where he still resides. She stayed at her sister’s home for three weeks, thereafter moving to rented accommodation for a further three months, before leaving permanently for the United States. The Wife then said that soon after arriving in America, she was informed that Carib Villas was rented out and that each time she visited Trinidad since then, there “is always someone in occupation of the home.” Once more I find the Husband’s version of this turn of events to be more credible. He says that as early as two months into the mortgage (March 1988) he realized that he was financially unable to cope with it and had asked the Wife for assistance. According to him, she refused to help even though he was solely responsible for the family’s domestic expenditure. The Husband says that this refusal was a pattern that developed with the Wife and it was she, who announced on 8th March 1988 that she was moving out of Carib Villas and requested that the furniture and other appliances be given to her. A truck came later that same day and moved her and all the household contents from Carib Villas leaving him with nothing. The Husband returned to the apartment. Page 4 of 19 By May 1988 the Wife published a notice in the Trinidad Guardian newspaper saying that she was “no longer under the care and protection of the [sic] Husband and that she [sic] did not hold herself responsible for any debt or debts contracted by him.” This was one of many acts with which I find disfavour with the wife. By this advertisement, she publicly abandoned the marriage and all the Husbands liabilities, which must mean the mortgage, (there is no evidence of any other or other substantial debt), which she seemed anxious not to be a part of. She seemed determined to disassociate herself from the Husband, and moreso the mortgage, creating for herself her own “clean break” scenario. Other acts were soon to follow, like the letter she wrote to the mortgagee in April 1989 (“W.O.4”), without prior knowledge or consent of the Husband, requesting a take-over of the mortgage and further requesting, indirectly, that the property be transferred to her sole name misleading the bank into believing that same was the subject of a “divorce settlement”. I want to make two very important observations here. Firstly, this letter to the mortgagee was first revealed by the Husband and exhibited to his Affidavit; no mention of it was made by the Wife in her Affidavit. Her failure to mention it only makes me conclude that her intentions were self-serving. Secondly, the letter was written eight months after her departure to the United States and well before (a full 16 years) divorce proceedings were filed. When asked under cross-examination her motive for such a letter the Wife gave very unsatisfactory answers about being concerned about losing the property and quite incoherently, claiming in one breath not to have known that the house mortgage payments were in arrears, while in the other breath saying that she knew that it was in danger of being lost and she feared for the child’s sense of loss of the only home she had ever known. The Husband’s version and to my mind the more believable one, was that while they occupied Carib Villas he had been asking for any assistance from the Wife. After they moved out and before she left for the United States he kept asking for financial assistance from the Wife and these requests continued when she got to America, but his pleas fell on deaf ears. Under cross-examination it was evident that even when the Wife was financially on her feet and in a position to assist, she failed to do so in spite of the Page 5 of 19 fact that she was fully aware that the house was in danger of being lost to the bank. She acknowledged as much under cross-examination. The Husband at great sacrifice, he says, entered into an arrangement with the mortgagee and began very slowly, making small payments towards the accumulated arrears, eventually bringing the account up-to-date. He cleverly let the premises, using the proceeds to off-set the mortgage and using any balance to pay the outgoings and effect repairs. He managed all this without any help from the Wife despite his constant demands for same. Nonetheless, he still found it fit to include the Wife in the initial rental arrangements, although at trial she feigned any such knowledge, implying that Carib Villas was rented without her knowledge, and in a deliberate move to deprive her of income derived therefrom. The Wife in her affidavit said she “visited the matrimonial home from time to time and [sic] there is always someone in occupation of the home.” She went on to say that she was “…able to speak to the current tenant and have found out that one Karen John is in occupation.” As it turns out this appears to be yet another fabrication. Under cross-examination she admits to visiting Carib Villas only once since her departure, and on that occasion, at the invitation of the Husband, who wanted to introduce her to the sitting tenant. On being asked by Mr. Skerrit what she did on that visit and whether or not she asked any questions about the payment of the mortgage or any other questions concerning the property she answered that she had not. This is yet another example of the Wife’s indignant and belligerent attitude. The Wife failed to exhibit even the slightest concern about the property or the attempts made by the Husband over the years to preserve it for themselves. It is to be noted that it was the Wife who filed the application for property settlement and up to the time of this visit, had given no indication or otherwise expressed any interest in therein. General Comments and observations Throughout these proceedings as I have already mentioned, I have found the Wife to be less than truthful with this court. Cross-examination revealed a callous, unforgiving, Page 6 of 19 relentless personality who cared little, if at all, for the welfare of the Husband and who showed no interest, until recently, in the former matrimonial home. Even her attitude just after the breakdown of the marriage; the notice in the newspaper, the letter to the bank in an attempt to prise the property from the Husband’s slipping grip without his knowledge, and her deliberate and calculating unwillingness to assist the Husband, even when she was fully aware that there was a very real possibility that the house may be lost to foreclosure, sum up a woman whose uncaring attitude, left the Husband no other choice than to single-handedly, do what he thought necessary to save the house. It is with this background that I make the further observation: The Wife has displayed nothing during these proceedings that would redeem her past actions. This attitude too I find most disfavourable. The evidence shows that she was willing to risk the house being lost by foreclosure, rather than do anything to help the Husband save it. She kept repeating that the news she heard about the house and its possible foreclosure was “hearsay”, but she did nothing to find out whether that was true. I find the Wife’s behaviour in this regard reprehensible. The Law and Issues Technically, the marriage lasted, 23 years, 1982 to 2005, when the Husband filed his petition, but in actuality was significantly shorter, when one considers that the breakdown, according to the Wife, occurred March 1988. This was accepted by the Husband as the date of the breakdown. I shall therefore calculate the marriage as lasting six years. The marriage produced no children although they informally adopted the Wife’s niece, whom they both treated as a child of the family, but of whom no mention was made in the petition. There is no dispute that this child is now the sole responsibility of the Wife, she having migrated to the United States to join the Wife about a year after the Wife’s own departure. The Husband dutifully took care of the child until she was sent to join the Wife. In any event no one has filed an application in relation to this child so there is nothing further for me to consider in this regard. Page 7 of 19 As stated earlier in this judgment, I find the Husband’s factual evidence more credible than the Wife’s and it is on his evidence that I base my findings. I think that the Husband did his best in trying to provide for his family and early on, felt overwhelmed by the burden of the mortgage. He turned to his Wife for help and when none was forthcoming, he simply gave up. After she left Carib Villas in March 1988 the Wife showed no interest in the home or the marriage. Although she contributed very little to its acquisition and, it is accepted, nothing at all to its preservation, is nonetheless quick to have the property sold and the proceeds divided between her and the Husband in equal share. The cases are clear, even in short marriages, as to how matrimonial assets are to be divided between parties of divorce. The only asset to be divided here is Carib Villas, so there is no surplus consider. The Wife wants it sold and the proceeds divided equally; the Husband has not indicated how the asset is to be shared, but it is unlikely that he wants to sell. Neither does it seem that he has the funds with which to purchase the Wife’s share, whatever that is determined to be. First for consideration is how is the property to be divided. White v White [2002] FLR 981 and Mc Farlane v Mc Farlane [2006] 1 FLR 1186 give clear guidance as to equality of division unless there is strong evidence that warrants a deviation from equality. Is this such a case? An analysis of the speeches by the law Lords in both cases is captured by Mr. Justice Burton in S v S [2007] 1 F.L.R. 1496 where he summarized at page 1507: “It is firmly said by Lord Nicholls in White that there is no presumption of equal division which indeed would ‘be an impermissible judicial gloss on the statutory provision’ (at 990), even if such presumption were rebuttable and ‘a presumption of equal division would go beyond the permissible bounds of interpretation of s.25’. Nevertheless … and although more often than not there would be a more or less equal division of the available assets, and the judge’s decision would mean ‘one party will receive a bigger share than the other’ (989) …’ ‘a judge will always be well advised to check his tentative views against the yardstick of equality of division’ and ‘as a general guide equality should be departed from only if, and to the extent that, there is good reason for doing so’ [all at 989]. Lord Cooke at 999 also stated, in agreement with Lord Nicholls, that ‘as a Page 8 of 19 general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so’. In Miller Lord Nicholls put the position as follows, at para. 16: ‘When their partnership ends, each is entitled to an equal share of the assets of the partnership, unless there is a good reason to the contrary. Fairness requires no less. But I emphasise the qualifying phrase: ‘unless there is good reason to the contrary.’ The yardstick of equality is to be applied as an aid not a rule.” That being said, if I were to use equality as a starting point in this case, my next step would be to determine if there are any circumstances emanating from the facts that may cause a departure from equality. Is there good reason to the contrary that the Husband and the Wife are each entitled to an equal share in Carib Villas? If I were to apply the above principle to this case I would have to consider whether the Wife’s attitude towards the Husband during his plight while attempting to save Carib Villas, combined with her efforts to disassociate herself from him and his debts, coupled with her attempt to mislead the mortgagee, while simultaneously trying to embark on a separate transaction involving the property without the knowledge or consent of the Husband, is sufficient cause to warrant a departure from equality? The simple answer to my mind is “yes.” I am conscious of the fact that neither Counsel argued or invited the court to take into account the Wife’s conduct in these proceedings, but I think it imperative to take account of that as well as the effort of the Husband in saving Carib Villas. In the circumstances should the Husband’s efforts be considered a special contribution, and if so, is it enough to result in a departure from equality? On the other hand, is the Wife’s disinterest in helping the Husband tantamount to conduct that it too should be taken into account? Lord Justice Mance in Cowan v Cowan [2002] Fam. 97 said that “… conduct and contributions are in large measure opposite sides of a coin.” In this case I think the two concepts go hand in hand so I have considered them in the context of this case. Firstly, I consider Page 9 of 19 the Husband’s efforts in saving the home in the context of “special contribution”, secondly, the Wife’s apparent disdain within the context of conduct. The existence of a “special contribution” originated from the judgment of Lord Justice Mance in Cowan’s Case, where he said at page 146: “The underlying idea is that a spouse exercising special skill and care had gone beyond what would ordinarily be expected and beyond what the other spouse could ordinarily have hoped to do for himself or herself, had the parties arranged their family lives and activities differently.” Initially, I questioned whether the Husband’s effort to save Carib Villas from the jaws of foreclosure could be considered a “special contribution”, particularly since the cases that generally fall to be considered under this criterion, usually involve vast amounts of fortune and ingenuity. However, after reading that excerpt from Lord Justice Mance’s speech I am satisfied that it does. I cannot think of a statement that more closely reflects the present situation than the above quotation. I am quick to add however, that in spite of this, I do not hold the Husband’s contribution, by itself, so special that it warrants any significant departure from equality. Here we have the Husband who, in trying to fulfill the fundamental obligations of any man, that of providing a home for his family, perhaps bit off more than he could chew. From as early as March 1988, a mere two months after the mortgage commitment began, the Husband realized that he was unable to continue meeting the monthly instalment without help from the Wife. His requests for assistance fell on deaf ears. To add to his troubles he said, at around the same time he became aware of a relationship between the Wife and another, man which “was causing him great pain…” and which, he believed, the Wife was unwilling to give up. This, together with the Wife’s sudden announcement that she was moving out of the matrimonial home and her demand for the furniture and appliances, left the Husband a broken man, who had all but given up on the marriage. I believe that at this time he might have felt that there was nothing more worth fighting for and he himself left the home and returned to the apartment. Understandably the mortgage payments fell into arrears. Faced with the possibility of losing the house, the Husband says that he started making small payments towards the Page 10 of 19 arrears, and made alternative arrangements with the mortgagee. Over the next eight and a half years the Husband continued to make his payments and in 1997 rented the premises in order to subsidize the mortgage instalments. It is evident that throughout this period the Husband constantly called upon the Wife to assist him in any way she could, but no help was forthcoming. Under cross-examination the Wife said that when she had just moved to America in August 1988, she was unable to assist because she did not have a job. I find this hard to believe, in light of her letter to the mortgagee dated 6th April 1989 eight months after re-locating to the United States, requesting that the mortgage be transferred to her and that she was prepared to make her first payment on 1st May 1989. Further under cross-examination the Wife revealed that even when she by her account, was in a financial position to help, she simply refused to do so. I have taken the pain of once again summarizing the more potent facts of the case here, to ask the question: Under the circumstances just outlined, is it fair, to the Husband that he should not be compensated for the struggle he had to endure? By the same token, is it fair that the Wife should be treated on the same footing as the Husband? I raise these questions of light of Lord Justice Thorpe’s reasoning in Cowan v Cowan1. After examining the principles laid down in White v White2, and in applying those principles to the case before him he surmised at page 118: “…it will be seen that the consistent theme id the search for the goal of a fair outcome. But, as Lord Nicholls3 emphasised, fairness is a subjective standard. An appeal for fairness is an appeal to the heart as well as to the mind. Individual judges are likely to have widely differing responses to the appeal. In so far as there may be said to be a ‘generally accepted standard of fairness’ how is the individual judge to ascertain or perceive it? … The decision in White v White … clearly does not introduce a rule of equality. The yardstick of equality is a cross-check against discrimination. Fairness is the rule and in its pursuit the reasons for departure from equality will inevitably prove to be too legion and too varied to permit listing or classification. … In summary 1 Cowan v Cowan [2002] Fam. 97 White v White [2001] 1 AC 596 3 Lord Nicholls’s speech in White v White supra at 599 et al 2 Page 11 of 19 therefore these seem to me to be the consequences of the House of Lords’ recent review of the ancillary relief cases in this court. (i) Approved is the frequent theme of decisions in this court that the trial judge must apply such criteria as are to be found in section 25. (ii) Approved also is the almost inevitable judicial conclusion that the unexpressed objective of the exercise is to arrive at a fair solution. (iii) Disapproved is any discriminatory appraisal of the traditional role of the woman as homemaker and of the man as breadwinner and arbiter of the destination of family assets amongst the next generation. … (iv) Disapproved is any evaluation of outcome solely or even largely by reference to reasonable requirements. (v) In so far as the yardstick of reasonable requirements was a judicially created tool to enable negotiators and judges respectively to predict and calculate conclusions it introduced an element of predictability and accordingly curtailed the width of the judicial discretion conferred by Parliament.” With Thorpe’s LJ words ringing in my ear, the only answers to my questions 1 must be that it is indeed not fair to the Husband to: (1) ignore his Herculean efforts to save Carib Villas from foreclosure in the face of a decidedly un-co-operative and unsupportive wife and (2) to treat the Wife on equal terms as the Husband taking into account the facts of the case. In applying the above analysis to the present case I am mindful not to allow discrimination in by the back door, in the manner in which I treat the Wife. But even so, my instinct remains the same. I regard the Husband’s efforts as a considerable task, against great odds and in the face of a complete lack of concern on the part of the Wife, who stood idly by preferring to suffer the ultimate loss of the property to foreclosure, rather than lift a finger to help save it; but then snatches the opportunity to share in it equally with the Husband. The Husband on the other hand had to bear a huge burden, by his estimation, and he had to bear this burden alone. I think his efforts are manifest. To take this argument further, it is common ground that for conduct to be taken into account in the assessment of financial provision/property adjustment, either by way of 1 page 11 above Page 12 of 19 enhancement of the position of the “innocent” party or reduction of the entitlement of the “guilty” party, such conduct must be exceptional. The exceptional nature of this course is referred to by Lord Nicholls in Miller v Miller [2006] 2 AC 618 and again by Baroness Hale: “It is only equitable to take conduct into account if one has been very much more to blame than the other: in the famous words of Omrod J in Wachtel v Wachtel [1973] Fam 72 at 80 the conduct had been ‘both obvious and gross’ … It is simply not possible for any outsider to pick over the events of a marriage and decide who was the more to blame for what went wrong, save in the most obvious and gross cases.” This has certainly been the approach that we have adopted in this jurisdiction and while I have no intention, nor do I wish to break new ground, I cannot help but probe this factor further. Surely the cases in the reports where conduct was taken into account and held as being so gross and obvious that it was inequitable to disregard it, completely overshadow the Wife’s conduct in this case, but should my analysis end here? Mr. Justice Burton in S v S1 attempted to re-define the manner in which we should consider conduct. At page 1516 of the report in referring to the “conduct cases” he had this to say: “ … all of the conduct found in those cases appear of manifest seriousness. … There is no real guidance as to what would be the effect if I concluded that there had been such conduct by the Respondent as it would be ‘inequitable to disregard’. … The exercise of such a sweeping power, which could deprive a party of all entitlement, or multiply or magnify what would otherwise be the entitlement of the other party, is of concern to me. … In the ‘conduct’ cases I have referred to above, substantial increases and decreases of entitlement have been made without particular justification. … How is the court to have regard to … conduct in a meaningful way? I agree with [Counsel for the husband] that the court should not be punitive or confiscatory for its own sake. I, therefore consider that the proper way to have regard to the conduct is as a potentially magnifying factor when considering the wife’s position under the other subsections and criteria. It is the glass through which the other factors are considered.” 1 S v S [2007] 1 F.L.R. 1496 at pp. 1514-1518 Page 13 of 19 This is the approach I have adopted. I have already examined and analyzed the Wife’s actions and I use the conclusions I have already drawn, as the looking glass through which I will now examine the other factors. So turning now to the guidance provided by that section 27 of the Act1 I make the following further observations and findings: (a) The income, earning capacity, property and other financial resources each of the parties is likely to have in the foreseeable future: When the parties married the Husband was an electrician and the Wife a book binder. At the time of these proceedings he was still employed as an electrician, but the Wife went on to improve herself, taking a number of courses and qualifying as a Nursing Technician, thereby improving her earning capacity significantly. In her Form 8 she states that her gross salary is between $2,200.00 to $2,400.00 (USD) per month, almost double that of the Husband’s salary of $6,138.00 (TTD) per month. The Husband is employed by Caribbean Steel Mill Limited, and although there is no evidence to support this, one might think that as an electrician he may be in a position to earn extra income in a private capacity. The income received from the rental of Carib Villas is used to offset the mortgage payments, so dollar-for-dollar, the Wife’s present income surpasses the Husband’s. (b) The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future: Both parties are equally responsible only for their own welfare and personal expenses. Regrettably, not enough information was given during the trial about the Wife’s niece who was treated as a child of the family, and no information, as I have already mentioned, was given in the Wife’s From 8 in relation to Expenditure on Children so I am to assume that other than themselves the parties have no financial obligations for any one else. Clearly the cost of living in the New York is significantly higher than in this jurisdiction, 1 Matrimonial Proceedings and Property Act Ch. 45:51 Page 14 of 19 but the Wife’s higher earnings should effectively put the parties on equal footing in this regard. Fortunately, the Husband has been able to clear off the arrears owing on the mortgage, using the proceeds of rent for this purpose, and the outstanding balance, at great sacrifice to the Husband, has now been reduced to $31,765.00. The Husband currently pays a rent himself, amounting to him of $400.00 per month. It is to be assumed that if he were to keep the house he would occupy same when it is released from its encumbrance. The other expenses he has are in relation to the property, being land and building taxes, water rates, repairs and suck like, in addition to his personal expenses. It would be most unfortunate if the Husband were to dive right back into debt the moment he were to be free of it. Moreover, it is unlikely that the Husband, now at age 54 would qualify for a further mortgage of any substantial amount. (c) The standard of living enjoyed by the family before the breakdown of the marriage: It is evident that the parties enjoyed a modest standard of living. Indeed, as has been evidenced, they were barely able to keep the roof over their heads, after moving out from the apartment where they spent their early years to venture out on their own. The Husband has largely managed to maintain the same if not slightly lower standard of living, whereas the Wife has improved hers. (d) The age of the parties and the duration of the marriage: The Husband and Wife are 54 and 53 respectively, and as mentioned earlier although technically the marriage spanned some 23 years 1982 to 2005 when the decree nisi was pronounced, it in fact lasted only 6 years, with the breakdown occurring undisputedly, in 1988 and the Wife moving away to America shortly after. It is well established that the longer the marriage the more entitled are the parties to be treated equally. It is now becoming quite the norm for six years to be the average length of marriage. So in some respects this marriage may be regarded as lengthy. The most adverse effect in relation to age may be the limited borrowing power it would attach to each of the parties. Page 15 of 19 (e) Any physical or mental disability of either of the parties to the marriage: There is little to consider under this head as there is no indication that either party suffers any debilitating illness, save the Husband’s hypertension as indicated in his Form 9. He states that it “partially” affects his employment or ability to get work, but does not amplify this and provides no details. It was not raised again under cross-examination so I am to assume that any effect is minimal. (f) Contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family: This item has been dealt with at length above. All I would add is that if I have unjustifiably embellished the Husband’s contribution, I am satisfied that it is adequately covered under this item. It is worthy of note that in contrast to the Husband, the Wife’s financial contribution was nominal at least. The Wife deposes to many instances where, according to her, she saved and borrowed miscellaneous sums, but when called upon under cross-examination to give details gave unsatisfactory answers. I find that her testimony lacking in this respect. Regrettably, she gives no evidence of the traditional role of homemaker, to which credit would be given. It is only to be assumed that she lived up to these responsibilities and I have factored in those assumptions. (g) Any order made under section 53 This item does not apply. (h) In the case of proceedings for divorce … the value to either of the parties to the marriage of any benefit … which … that party will lose the chance of acquiring: This item does not apply. Page 16 of 19 I feel even more satisfied with the conclusions I have drawn thus far, having used the criteria above as a further “aid in achieving an outcome in accordance with the current perceptions of fairness.” as Thorpe L.J also resorted to doing, in Cowan’s Case 1 at (page 119). Conclusion I think it is an important consideration, that neither the Husband nor the Wife currently occupy the former matrimonial home, but whereas the Wife seems more complete in her housing arrangements, if not for life, at least to a semi-permanent degree and likely to remain unchanged in the foreseeable future, [it is her suggestion that the property be sold], by contrast, the Husband has no other accommodation but the apartment which does not belong to him. I would be reasonable to assume that he has hopes of one day reoccupying Carib Villas, perhaps as soon it becomes unencumbered. He has sunk all his money into the property, without the benefit of enjoying occupation of it. The Husband I would imagine would be anxious to retain the property. It is a source of income, at least for the time being, he has invested all of his income into it at great sacrifice to himself. Taking into consideration: (1) (2) the section 27 factors particularly, the length marriage, the limited contribution by the Wife and the Husband’s contribution throughout the marriage; the court’s disfavour with the Wife as regards (i) (ii) (iii) her evasiveness, her stubborn unwillingness to help the Husband even in the face of certain loss of the matrimonial home, her attempts to “sneak” the property away from the Husband, while at the same time misleading the mortgagee into thinking that the property was the subject of a divorce settlement, at a time when it was not, (iv) her anxiety to cut ties with the Husband and his liability under the mortgage, by placing an advertisement to that effect in the Guardian newspaper; 1 Cowan v Cowan [2002] Fam 97 Page 17 of 19 (3) all the reasons given in this Judgment I hold that the matrimonial home be divided between the Husband and the Wife in the proportions of one-fifth: four-fifths in favour of the Husband. Calculations I have calculated the equity in the amount of $538,235.00 worked out as follows: Value of the Property Mortgage as at March 2007 Mortgage paid up to November 2007 Amount remaining in the mortgage Equity now stands as – – – – – $570,000.00 $ 47,765.72 $ 16,000.00 $ 31,765.00 $ 538,235.00 The resulting sum for the Wife’s of $107,647.00 may well not be enough to provide her with another house but for the reasons preferred above I am satisfied that this sum adequately represents her interest under the circumstances of the case. Moreover, she would not be able to enjoy instant gratification of this sum. Rather, I am afraid it would have to be paid to her over a period of time. There is no source immediate or otherwise from which this sum can be realized, and I see no good sense in the property being sold. That I have had to accept as the grim reality of the position, but as I have already expressed1 the Husband’s needs in relation to housing in the future as compared to the Wife’s, together with the more immediate need to generate income to facilitate the continuing mortgage payments, allow for little alternative. Taking the Husband’s income into account, his illiquidity, his past history with his lending institution, and his age, it is unlikely that he would be able secure a further loan to enable a clean-break payout to the Wife. Consequently, I order that the Husband pay the said sum of One Hundred and Seven Thousand, Six Hundred and Forty-Seven Dollars ($107,647.00) by periodical payments of Two Thousand, Eight Hundred Dollars ($2,800.00) per month for three (3) years and three (3) months. 1 page 17 Page 18 of 19 The Husband may find it difficult to make these payments right away, so I order that the payments commence at the end of June 2008, at which time he would have only nine more instalments remaining on the mortgage. This would also give the Husband sufficient time to offer the premises to the sitting tenant at an increased rate, or alternatively find a new tenant altogether. According to the Valuation Report the property rented unfurnished, could fetch a rent of Two Thousand, Eight Hundred Dollars ($2,800.00). Upon full payment of the sum to the Wife which should at latest, be in September 2011, the Wife shall transfer her share and/or interest in Carib Villas to the Husband, in default of the Wife failing to do so, the Registrar of the Family Court to execute the said documents of transfer. Each party shall bear his own costs. Dated 03rd December, 2007 Allyson Ramkerrysingh High Court Judge Page 19 of 19