Carolyn Patricia Wilkinson v Norris Victor Wilkinson

• Jurisdiction: Bermuda
• Judgment Date: 27 April 2016
• Neutral Citation: [2016] SC Bda 44 Div
• Docket Number: DIVORCE JURISDICTION 2011 No: 26
• Date: 27 April 2016
• Court: Supreme Court (Bermuda)

[2016] SC (Bda) 44 Div

In The Supreme Court of Bermuda

DIVORCE JURISDICTION 2011 No: 26

Carolyn Patricia Wilkinson

Petitioner

and

Norris Victor Wilkinson

Respondent

Mrs Georgia Marshall, Marshall Diel & Myers Limited, for the Petitioner

Ms Nadia Hamza, Nadia W. Hamza Barrister & Attorney, for the Respondent

RULING

(in Chambers)

Ancillary relief-property adjustment order embodied in Consent Order-application to vary-finality of property adjustment orders-enforcement of maintenance order

Introduction and Summary

1 The present hearing involved the adjudication of the following applications:

• (a) the Petitioner's Judgment Summons dated Petitioner seeking to enforce paragraph 5 of the December 20, 2011 Ancillary Relief Order (‘the Consent Order’) requiring the Respondent to pay the Petitioner $4200 by way of maintenance;

• (b) the Petitioner's September 2, 2015 1 Judgment Summons seeking (primarily) to implement paragraphs 1–2 and 5–6 of the Consent Order requiring the Respondent to grant to the Petitioner a life interest in the former matrimonial home and to amend his Will to secure his maintenance obligations to the Petitioner (‘the Enforcement Summons’);

• (c) the Respondent's Summons dated January 18, 2016 seeking to vary the Consent Order (‘the Variation Summons’) and effectively re-hear the ancillary relief application de novo on the grounds that the agreement reached between two legally represented parties 2 was not commercially viable;

• (d) the Petitioner's Summons filed on February 1, 2016 3 seeking to strike out the Variation Summons (‘the Strike Out Summons’).

2 The Respondent gave oral evidence and was cross-examined, as did his accountant Ms. Megan Nesbitt. By the end of the hearing the most difficult aspect of the applications which I felt warranted further reflection was the precise terms on which the payments sought by the Petitioner should be ordered to be made. The existence of the arrears was not disputed, but the ability of the Respondent to pay was very much in controversy.

The Variation Summons

3 It was ultimately common ground that the Consent Order disposed of the Petitioner's ancillary relief application on what were, from her perspective, far more modest terms than she might have been able to obtain. In essence, the Respondent was land rich and cash poor. To preserve his various properties intact (presumably both for his benefit and the benefit of their children), the Petitioner agreed to accept a life interest in the former matrimonial home and maintenance payments secured by a charge on the Respondent's estate. She also agreed not to seek her costs of the ancillary relief application and only obtain $1500 costs with respect to the Petition.

4 The Respondent has not, 4 ¹/₂ years later, either executed the conveyance or paid the related stamp duty. Nor has he executed (or validly executed) a Will securing his maintenance obligations to the Petitioner, which she has been compelled to take legal action to enforce. From the Petitioner' s perspective, this must have felt like salt being rubbed into wounds. However, the Respondent's position (as set out in his First

Affidavit) was that the Consent Order ‘ is not financially tenable ….and…is open to being revisited in a situation such as this where it would be unjust to bind me to its terms.’ There was no suggestion that the Consent Order has, due to some unforeseeable or cataclysmic events, become commercially unviable. Nor did the Respondent even suggest or credibly assert that a change of circumstances, justifying a reduction in the maintenance sums to be paid by him, had occurred. The clear implication from his evidence was that he had struck an imprudent bargain and ought accordingly be permitted to set it aside.

5 Ms Hamza ultimately relied upon the practical submission that the Consent Order was clearly not working and, if Mrs Marshall was technically right that it could not be varied, the Consent Order should be renegotiated. However Mrs Marshall deployed detailed cross-examination of the Respondent and Ms Nesbitt succeeded in establishing that the Respondent's cash-flow problems, linked to the income generating Court Street properties being managed by Progressive Realty, were somewhat less chronic than he suggested that they were.

6 There can be little doubt that the Court has no jurisdiction to set aside the Consent Order on a non-consensual basis. Section 35 (2) of the Matrimonial Causes Act 1973 proscribes the categories of order as which can be reviewed from time to time and a property adjustment made in a divorce is not one of them:

‘ Variation discharge, etc., of certain orders for financial relief

(1) Where the court has made an order to which this section applies, then, subject to this section, the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.

(2) This section applies to the following orders—

• (a) any order for maintenance pending suit and any interim order for maintenance;

• (b) any periodical payments order;

• (c) any secured periodical payments order;

• (d) any order made by virtue of section 27(3)(c) or 31(7) (b) (provision for payment of a lump sum by instalments);

• (e) any order for a settlement of property under section 28(1) (b) or for a variation of settlement under section 28(1) (c) or (d), being an order made on or after the grant of a decree of judicial separation…’

7 Mrs Marshall relied in this regard upon Carson-v-Carson [1983] 1 All ER 478 where the English Court of Appeal approved the decision of the trial judge who refused the application of an apparently deserving wife, whose circumstances had changed significantly for the worse, to make a fresh property adjustment order. Ormrod LJ, referring to section 31 of the of the Matrimonial Causes Act 1973 (UK) upon which are own section 35 is based, stated (at page 481h):

‘ This is a case where an attempt was being made to obtain a second property adjustment order in relation to the same capital asset and it is not necessary in this judgment to consider what the position might have been if some other capital asset was involved. In...