C v C

• Jurisdiction: Bermuda
• Judge: Shade Subair Williams
• Judgment Date: 30 November 2017
• Neutral Citation: [2017] SC Bda 104 Div
• Docket Number: DIVORCE JURISDICTION 2017 No: 33
• Court: Supreme Court (Bermuda)
• Date: 30 November 2017

[2017] SC (Bda) 104 Div

In The Supreme Court of Bermuda

DIVORCE JURISDICTION 2017 No: 33

Between:

C

Petitioner (Applicant Wife)

and

C

Respondent (Respondent Husband)

Petitioner Georgia Marshall, Marshall Diel & Meyers Limited

Respondent Litigant in Person

Administrative capacity of the Assistant Registrar

Clarification on Procedural Rules for Ancillary Relief Applications

Applications for leave to file further affidavit evidence in Ancillary Relief proceedings

(Matrimonial Causes Act 1974 s. 30 / Matrimonial Causes Rules 1974 Rules 68–84)

CHAMBERS RULING

RULING of Registrar Shade Subair Williams

Shade Subair Williams

Introduction

1 The Petitioner and the Respondent were married in 2009. A Decree Absolute was pronounced in August 2017. There is one child of the marriage of toddler age. The Petitioner has full time employment and the Respondent is employed in a family business where he is also a co-owner.

2 This matter has come before the Court on the Petitioner's application filed on 18 August 2017 under Rule 68(1) of the Matrimonial Causes Rules 1974 for ancillary relief by way of: (1) periodical payments for the child of the family; (2) lump sum provision; and (3) a property adjustment order in relation to the former matrimonial home. The Petitioner further seeks an order that the Respondent pay the costs of her application for ancillary relief.

3 The Petitioner's application was made returnable for 12 September 2017 to appear before the learned Assistant Registrar (Relief), Rachael Barritt in her administrative capacity. Terms of a Consent Order were reached in respect of directions for the filing of affidavit evidence. However, the draft Consent Order, dated 12 September 2017 (“the Consent Order”) was erroneously signed by the Assistant Registrar because she had no judicial powers to make an Order of the Court.

4 Notwithstanding, the Consent Order essentially provided that no further affidavit evidence would be admissible without leave of the Court. However, on 23 October 2017 the Respondent filed further affidavit evidence.

5 The Respondent now applies to the Court for retroactive leave to file the additional evidence sworn in his own name and filed on 23 October 2017.

The Affidavits Filed in these Proceedings

6 In support of the Petitioner's Notice of Application for Ancillary Relief filed on 18 August 2017, the Petitioner filed an affidavit in her own name (the Petitioner's first affidavit).

7 Also on 18 August 2017, the Petitioner filed third party affidavit evidence from her father, without leave of the Court. The Assistant Registrar sought to grant leave retroactively by the 12 September 2017 Consent Order.

8 The Respondent filed a reply affidavit on 11 September 2017 (the Respondent's first affidavit).

9 In compliance with the first term of the Consent Order, the Petitioner filed a second affidavit on 6 October 2017.

10 The Respondent's application before me arises out of the further affidavit evidence filed by the Respondent without leave on 23 October 2017.

The Facts in Issue

11 The former matrimonial home, which is still occupied by both parties, was purchased by the parties in 2010 in their joint names for the sum of $750,000.00. In aid of this purchase, the Petitioner's parents gifted the sum of $300,000.00 in addition to closing costs. The balance sum of $450,000.00 was taken out as a mortgage. The monthly mortgage and related maintenance fees are paid out of the parties' joint bank account.

12 The Petitioner through her affidavit evidence has claimed sole ownership of the $300,000.00 gift from her father. The Respondent, however, says that this lump sum of money was a gift to both parties as a married couple and was clearly intended for the purchase of the matrimonial home for equal benefit to the parties to the marriage. Of course, findings of facts are a matter for the trial judge and not the Registrar. I only state the facts so to identify the main issues in dispute.

13 On the face of the affidavit evidence, the parties are in dispute as to the following:

• (i) The true market value of the former matrimonial home;

• (ii) The rightful owner of the sums spent by the Petitioner's parents for purchase of the vehicles used by both parties ($23,700.00 for a motor car used by the Petitioner and approximately $20,000.00 for a truck which was registered to the Respondent);

• (iii) The rightful owner of the furniture in the former matrimonial house (The Respondent stated in his first affidavit that the household contents were gifts received by the parties when they were newlyweds. The Respondent also specified that during the parties' pre-marital cohabitation in his bachelor style apartment, the Petitioner's father, of his own accord, disposed of his household contents and replaced his belongings with more valuable furnishings. The Petitioner in her second affidavit stated that her father purchased a new sofa, television set, curtains and carpet for the apartment without objection from the Respondent. The Petitioner says that this was a decision taken jointly between the parties);

• (iv) Petitioner's evidence on her monthly expenditures for groceries;

• (v) The circumstances behind the purchase of the Petitioner's wedding ring (The Respondent alleged in his first affidavit that the Petitioner demanded that he sell his car to enable him to purchase a wedding ring for the Petitioner. This is entirely refuted by the Petitioner); and

• (vi) The level of the Petitioner's transparency on her income during the marriage (The Respondent claimed in his first affidavit that the Petitioner was not forthcoming about her earnings during the marriage and that he first became aware of her income sums after having instructed an attorney in these proceedings).

14 Some of these disputed issues listed may not prove relevant at trial. However, that will be a matter for the judge and not the Registrar.

The Respondent's Second Affidavit filed without leave of the Court

15 The Respondent filed a 3 page affidavit on 23 October 2017. The Petitioner's Counsel has objected to the admission of this evidence on the basis that it was filed without leave of the Court. Mrs. Marshall further argues that the admission of the Respondent's second affidavit will invariably and unnecessarily increase the costs of this litigation as the Petitioner would in turn seek leave to file further affidavit evidence in reply.

16 The Respondent's second affidavit briefly outlines his version of the father's involvement in replacing his former bachelor apartment with new furnishings. The Respondent, in his affidavit, colorfully described the Petitioner's father as a man who made lavish purchases for his daughter's happiness and his own convenience.

17 The Respondent also referred to his former father in law's payment of a second hand $7000 Mitsubishi Lancer car for the Petitioner which he says was later upgraded to a BMW which was then sold to enable the Respondent to purchase the Petitioner's wedding ring.

18 In this second affidavit, the Respondent claimed that the Petitioner's father gifted him with the truck which was not intended to be a loan. The Respondent explained that his attempt to make some repayment to his father in law was only as a measure of good faith.

19 At paragraph 14 of his affidavit, the Respondent stated that the Petitioner's father gifted him and his other family and colleagues with expensive items in return for repair type services for him. The Respondent illustrated this point by reference to an $11,000 boat which he stated to have been gifted by the Petitioner's father to the Respondent's brother. This is all presented as evidence on the background leading up to 2008 when the parties married one another.

20 The affidavit then goes on to speak on about the Petitioner's father's payment of the $100,000 wedding ceremony and surprise Mediterranean cruise honeymoon. Paragraphs 19 and 20 of the Respondent's second affidavit provide the Respondent's version of how the Petitioner's father came to gift the parties with the down-payment for the former matrimonial home. Paragraphs 21–24 outline the Respondent's position on the cheque which was paid by the Petitioner's father for the down payment. The Respondent further exhibited a copy of the joint escrow account with the parties' previous conveyance attorney as evidence to support his contention that the gift was made to the parties jointly. The Respondent stated that his agreement to purchase the matrimonial home and his commitment to make payments over the course of seven years was done on the assumption that he owned the property with his wife as joint equal tenants.

THE LAW

Procedural Rules for filing of Evidence in Ancillary Relief Applications

21 Ancillary Relief is defined in the Matrimonial Causes Rules 1974 (the Rules) in the Interpretation section as follows:

“ancillary relief” means—

(a) an avoidance of disposition order,

(b) a financial provision order,

(c) an order for maintenance pending suit,

(d) a property adjustment order, or

(e) a variation order

22 Section 30 of the Matrimonial Causes Act 1974 applies to the commencement of proceedings for ancillary relief:

“ 30(1) Where a petition for divorce, nullity of marriage or judicial separation has been presented, then, subject to subsection (2), proceedings for maintenance pending suit under section 26, for a financial provision order under section 27, or for a property adjustment order may be begun, subject to and in accordance with rules of court, at any time after the presentation of the petition. (2) Rules of court may provide, in such cases as may be prescribed by the rules—

(a) that applicants for any such relief as is mentioned in subsection (1) shall be made in the petition or answer; and

(b) that applications for any such relief which are not so made, or are not made until after...