Duncan v Duncan

• Jurisdiction: Bermuda
• Judgment Date: 07 November 2005
• Date: 07 November 2005
• Docket Number: Divorce Jurisdiction 2003 No. 35
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Bell, J

Divorce Jurisdiction 2003 No. 35

BETWEEN:

Juliet Lundula Duncan

Petitioner

and

Delroy Benell Duncan

Respondent

Mrs G Marshall for the Petitioner

Mr N Hargun for the Respondent

The following cases were referred to in the judgment:

White v WhiteELR [2001] AC 596

Ellison v Ellison 1985 Civil Appeal No. 1

P v PUNK [1978] 3 All ER 70

Potter v PotterUNK [1982] 3 All ER 321

N v NFLR [2001] 2 FLR 69

Lambert v LambertFLR [2003] 1 FLR 139

Norris v NorrisFLR [2003] 1 FLR 1142

Ancillary relief — 17 year marriage, 2 children — Division of property — Bermuda property the result of wife's inheritance — Credibility of wife's evidence — Exceptional contribution — discounted assets

JUDGMENT of Bell, J

Background

1. This judgment arises from an application for ancillary relief made by the Petitioner in October 2003, in which she sought an order that the Respondent make periodical payments for her, secured provision, and such lump sum or sums provision as may be just. I will refer to the parties in the usual way as Husband and Wife. The Husband also filed a notice of intention to proceed with an application for ancillary relief which he had made in his answer, but this was not seriously pursued, and in his closing submissions the Husband confirmed that he did not pursue his application, although with the caveat that this was on the basis that the Court did not make an order in relation to lump sum or periodical payments in favour of the Wife.

The Parties

2. The parties were married on 29 July 1985, when the Husband was 25 and the Wife 24 years of age. The parties were then living in England. The Wife is Bermudian, and the parties relocated from England to Bermuda in late 1988. In their affidavit evidence the parties give conflicting accounts of this decision and the reasons for it, but that difference of view has no relevance for the purpose of these proceedings.

3. The marriage had broken down by August 2002, when the Husband left the matrimonial home with the two children of the family, a son, A, who was born in January 1987, and a daughter, S, born in April 1988. Hence at the time of the separation, they were aged respectively 15 and 14. Divorce proceedings were issued by the Wife on 7 February 2003, decree nisi was pronounced on 24 October 2003, and that decree was made absolute on 22 December 2003.

4. The Husband is an attorney and one of the two senior partners of a successful law firm. The Wife is a nurse by qualification, and although she described herself as working on a part time basis, it is effectively full time since she works four nights per week at the Palmetto Palms Senior Home, and one day a week at the Westmeath Rest Home. I will address the respective earnings of the parties in due course as part of the overall financial position.

The Children

5. There is no question but that since the separation, the Husband has shouldered virtually all of the living and education expenses for the children. I use the word ‘virtually’ only because of the arrangements which the Husband had made with his father, who contributes substantially to the care and upbringing of the son when he is at school in England. This involves not only the direct expenditure of funds on the son's behalf, but also an arrangement pursuant to which the Husband has agreed to pay his father a monthly fee for looking after the son, the rationale being that but for this burden, the father, who is retired, could have taken a part time job in his retirement. The fee is not regularly paid, although a partial payment of £5,000 was made by the Husband on the conclusion of a recent real estate transaction. It was in respect of this obligation that the Husband initially sought a contribution from the Wife, this being the application which is no longer seriously pursued by the Husband.

6. The Wife acknowledges that the Husband pays all the school fees for the children, plus travel expenses, overseas living expenses, and their living expenses when in Bermuda. She agrees that she does not contribute towards those expenses, although she says that she sends the children money on occasion. In practical terms, the Husband is solely responsible for all of the children's living and educational expenses, and it has to be recognised that he also now bears the lion's share of the emotional burden of their upbringing.

General

7. As I indicated to counsel at the outset, a considerable volume of material has been filed by the parties in these proceedings in respect of matters which are now relatively ancient history, going back as far as the apartment which the parties occupied when they were first married in London, and the financial arrangements which followed from the wife's inheritance following the deaths of her parents by 1988, and subsequently on her grandmother's death in 1992.

8. The Wife's inheritance from her parents comprised four properties, and was shared with her brother. One of these, ‘Eagle Heights’ at 12 Grotto View Hill in Smith's Parish became the matrimonial home, and remains in the Wife's ownership and occupation. There were three other properties, one in Southampton, one at Palmetto Road, otherwise known as Border Lane, and one at Ord Road. Of these, the Eagle Heights property was apparently the most desirable, and the Wife's wish was to buy out her brother's half interest in that property. This was ultimately achieved by a transfer to him of the Wife's interest in the Border Lane property. The Husband's affidavit evidence refers to the Wife having transferred her one half interest in the Ord Road property as well as the Border Lane property, and a subsequent document exhibited by the Wife suggested that the Ord Road property be given to her brother. In any event, whether one or both of these properties were transferred at that time, the combined value of those properties did not equate to the value of the Eagle Heights property, so that the parties agreed in addition to transfer to the Wife's brother the London apartment which had been rented by the parties at the time of their marriage, and which had by then been purchased on favourable terms, so that at the time of purchase there was an equity interest for which the parties had made no payment.

9. In fact, the Husband's affidavit evidence suggested that the ownership of the London apartment was effectively his. However, the documents exhibited by the Wife make it clear that the London apartment had been sold to the parties jointly on a discounted basis pursuant to the provisions of the Housing Act 1985. The Husband says that he caused the Wife's name to be added to the lease, and that the Wife had given him nothing for her interest in the London property. The reality is that by the time that the landlord's offer was made in 1988, it was an offer which was made to both Husband and Wife, and both profited from it, insofar as the value of the apartment appreciated. It clearly continued to rankle the Husband; he regarded the Wife's brother as having driven a hard bargain, and whereas the Husband had owned half of the London flat, because the Wife was Bermudian and the Husband did not acquire his Bermudian status until later, the Eagle Heights property was transferred into the Wife's sole name. To compensate the Husband for this perceived disadvantage, the Wife agreed that he should receive the bulk of the monies otherwise due to her upon the sale of the final part of the inheritance, the property at Horseshoe Bay Southampton. The Husband's version was that the Wife would pay him $100,000 in return for his giving up his interest in the London apartment, when the Southampton property came to be sold. The Wife's version of events was that the Husband harboured a resentment over the London apartment transaction, which she said festered over time in view of the rising real estate market in London. She says that the Husband was so obsessed that he made her believe that she owed him money as a result of this transaction, the extent of this being $90,000 (see paragraph 21 of her affidavit sworn 11 May 2004). Later in that affidavit (paragraph 57) the Wife confirms that she agreed to these demands.

10. In the context of a relatively long marriage, where both parties have made a substantial contribution to the acquisition of the joint matrimonial assets, I do not regard it as productive to go through the minutiae of real estate transactions which are now more than a decade old, with a view to determining which of the parties contributed precisely how much to which of the joint matrimonial assets. Indeed, it is clear that the documentation is in a number of instances incomplete, making it virtually impossible to decide definitively what the true position was.

11. This was a marriage in which, as is not unusual, the parties started out with very little, and, some twenty years later, had accumulated real estate and business interests of considerable value. However, in terms of contribution, both Husband and Wife clearly participated jointly. The Husband undoubtedly worked long and hard to build a successful legal career, but the Wife worked as well during the marriage and contributed in regard to the raising of the children, and in terms of the inheritance which she brought into the pool of family assets. I bear in mind that Mrs. Marshall contends that the Wife's contribution was exceptional, insofar as it is claimed that part of her inheritance was invested in the Husband's business. I will deal with this submission in due course, but as a general proposition, leaving that one contention aside for the present, this is a marriage where both parties contributed in their respective roles in such a way that fairness requires that, the exceptional contribution argument apart, there is no room for discrimination between the contributions made by either Husband or Wife.

12. Given that, I have real doubts as to whether it is...