Cornes v Cornes

• Jurisdiction: Bermuda
• Judgment Date: 10 March 1989
• Docket Number: Civil Appeal No. 10 of 1988
• Date: 10 March 1989
• Court: Court of Appeal (Bermuda)

In the Court of Appeal for Bermuda

In the Court of Appeal

In the Court of Appeal for Bermuda

Blair-Kerr, P

da Costa, JA

Roberts, JA

Blair-Kerr, P

da Costa, JA

Roberts, JA

Civil Appeal No. 10 of 1988

Civil Appeal No. 10 of 1988

Civil Appeal No. 10 of 1988

James Herbert Cornes

Appellant

and

Pamela Christine Cornes

Respondent (Petitioner)

BETWEEN

James Herbert Cornes

Appellant

and

Pamela Christine Cornes

Respondent

James Herbert Cornes

Appellant

and

Pamela Christine Cornes

Respondent

Mr. J. Barritt (Appleby, Spurling & Kempe) for Appellant

Mrs. G. Marshall (Ann Frith Cartwright) for Respondent

Mr. J. Barritt (Appleby, Spurling & Kempe) for Appellant

Mrs. G. Marshall (Ann Frith Cartwright) for Respondent

Williams v Williams 1982 Civil Appeal No. 8

Smith v Smith 1985 Civil Appeal No. 3

Bermuda Immigration and Protection Act s. 8, 80(1)

Matrimonial Causes Act 1974 s. 27, 28, 29(1)

Ancillary relief — Property adjustment order — Appeal by husband — Wife non-Bermudian and therefore could not acquire property — Matrimonial home purchased entirely by wife, but initially in husband's sole name — Governor granted licence for wife to acquire property jointly with husband — Wife inherited large amount after her father's death — Judge found no presumption of advancement in respect of wife's purchase of property — Whether Immigration Act took precedence over Matrimonial Causes Act — Husband's conduct despicable

JUDGMENT

I shall refer to the parties as ‘the husband’ and ‘the wife’. The wife is an American citizen. The husband is a Bermudian. They were married in Bermuda on 8th September 1979. She was then 34 years of age, and he was 47. This was the wife's second marriage, and the husband's third. She had three children by her first marriage. He had two children by one or other of his former marriages. There is one child of this marriage—Christine, born on 17th November 1980.

The wife sought dissolution of this marriage by petition dated 12th November 1985, on the ground that it had broken down irretrievably, the ‘fact’ relied on being that the husband had behaved in such a way that she could not reasonably be expected to live with him. [paragraph (b) of section 5(2) of the Matrimonial Causes Act 1974 (‘the 1974 Act’)].

The suit was undefended. The decree nisi was pronounced on 31st January 1986, and it was made absolute on 10th April 1986.

Cross applications for ancillary relief in most of its forms came before Mr. Justice Martyn Ward on 25th April 1988. The learned judge had before him ten affidavits (five from each party). The parties gave evidence. The hearing lasted four days, nearly three of which were taken up with the oral evidence. On the question of credibility, in his judgment, the learned judge says:

‘I should state at once that I have come to the firm conclusion that where the parties' testimony conflicts, I prefer the Petitioner's evidence to that of the respondent.’

Judgment was given on 13th May 1988. This in the husband's appeal (by the leave of this court) from the learned judge's decision.

The history of the marriage is so well set out by Mr. Justice Martyn Ward that one is tempted to say: it is all there; but the judgment of any court should include at least the basic facts on which the decision is given. In recording them, I may do so in the language of the learned judge.

The husband is Deputy Chief Environmental Health Officer. He is well qualified by long experience and having spent three years at Columbia University acquiring a Master's Degree in Public Health and Environmental Management. At the beginning of the marriage, the wife worked first as a school teacher and then as a secretary. The husband knew, when he married her, that she would, sooner or later, inherit a very considerable sum of money.

In the words of the learned judge, the marriage began like this:

‘From the settlement of her financial affairs with her former husband, (the wife) had about $145,000 invested in the United States through the agency of the United States Trust Company of New York and she also had $45,000 invested with Fair Haven Investors Inc., her investment advisers in the United States, as a form of educational trust for her three children. She also received $771 per month from her former husband for their children's maintenance, although he has withheld payment since the beginning of 1986. For his part, (the husband) brought about $15,000 in savings into the marriage and a net salary of $2100 per month.

The parties lived first at (the husband's) rented accommodation known as “Greenfields” but this was only a two-bedroom house and manifestly too small for the parties and (the wife's) three children. Only by liquidating (the wife's) investments in the United States could a larger home be acquired, but the decision to do this was, nevertheless, taken and a house was found. This was “Coralston Manor”, Cobbs Hill Road, Warwick, and it was bought for about $165,000. The purchase was financed entirely by (the wife) liquidating part of her assets, (the husband) contributing nothing from his savings. She made payments totalling $69,000 as down payments and for costs and took out a mortgage of $100,000. As (the wife) was not a Bermudian, the conveyance had to be in (the husband's) sole name. The purchase was completed in September 1980 ……….. non-Bermudians could acquire property in Bermuda, but only by leave of the Governor-in-Council. The time taken for such an application to be heard would have meant too long a delay to secure Coralston Manor. Hence the conveyance into the Respondent's name.’

What the learned judge was referring to was, of course, s.80(1) of the Bermuda Immigration and Protection Act 1956. (the 1956 Act). The sub-section reads:

• ‘80(1) Subject to the provisions of this section, but without prejudice to anything in the next following section—

  • (a) it shall be unlawful for a restricted person to acquire any land in these Islands except under the authority of a licence granted to such restricted person by the Governor; and any conveyance purporting to convey any land to an unauthorised restricted person shall be void; and

  • (b) it shall be unlawful to convey any land to any person as a trustee for, or a grantee to the uses of, a restricted person or otherwise to assure any land for the benefit of a restricted person except under the authority of a licence granted to such trustee or grantee by the Governor and any conveyance or assurance purporting to convey or assure any land to such trustee or grantee, except in accordance with the terms of such licence, shall be void.’

The expression ‘restricted person’ is defined in the Act as meaning a person who does not possess and enjoy Bermudian status or who is an alien.

Once the parties had settled into their new home, an application to the Governor for a licence was made. The application was granted on 28th May 1981. The operative part of the licence reads:

‘The Minister of Home Affairs, acting as the delegate of His Excellency the Governor, hereby grants to Pamela Christine Cornes of Coralston Manor, Cobb's Hill Road, Warwick Parish, Bermuda, Licence to acquire by voluntary conveyance the land described in the schedule hereto in joint tenancy with her husband, Herbert James Cornes, a Bermudian and present owner of the property.’

On 13th August 1981 the property was transferred into the parties' joint names.

In addition to financing the purchase of Coralston Manor, the wife used some $30,000 of her settlement monies in purchasing furniture and shipping, from the United States, furniture which she already had. The learned judge found that the husband's contribution to furnishing the new home was ‘negligible’ The following passage from the judgment of the learned judge contains an important finding of fact. The passage reads:

‘At that stage, had the parties been asked who owned the home, I have little doubt that both would have said that the Petitioner did. The speculation is not an idle one. Despite the fact that the parties had been married such a short time, and that they had a child, I believe the Petitioner when she said that from the outset she had serious reservations about the wisdom of her having married the Respondent. Nevertheless, she continued with the marriage.’

From the date of the purchase of Coralston Manor (September 1980) until December 1982, the husband paid the mortgage instalments of $936 per month.

The wife's father died in October 1982 and she inherited a large sum of money invested in the United States and Switzerland, together with furniture from his home in France. The value of the wife's inheritance was then of the order of $2 million producing an annual income in excess of $100,000 before tax. The effect of all this is described by the learned judge in these words:

‘Of course, it transformed her life. Immediately, she was able to contemplate expenditures which would never have been possible before. Principally, she put in hand rebuilding and renovation work to Coralston Manor. There seems no doubt that the combined effect of their dissatisfaction with, and consequent change of, architects and builders, accounts for a considerable increase in the sum intended to be spent by her. The fact is that $458,578 was spent. It was all the Petitioner's money.’

That, together with the $69,492 which she had spent in connection with the acquisition of Coralston Manor, gives a total of approximately $528,000—plus, of course, the $30,000 which she spent in connection with the furnishing of the house.

Moreover, as from January 1983 she took over payment of the mortgage instalments; and it was not till about March 1985 that the husband began (for the first time since December 1982) to contribute to household expenses. From that time, he paid $1000 per month. In the meantime, she continued to fund the family. She paid for expensive holidays...