Kathleen Yolanda Vivian Smith v Rupert Earlston Smith 1993 Divorce Jur. No. 281
| Jurisdiction | Bermuda |
| Judgment Date | 31 July 1995 |
| Date | 31 July 1995 |
| Docket Number | Divorce Jurisdiction 1993 No. 281 |
| Court | Supreme Court (Bermuda) |
In the Supreme Court of Bermuda
Meerabux, J
Divorce Jurisdiction 1993 No. 281
and
Ms. C. Benskin for the Petitioner
Mr. D. Lord for the Respondent
Meerabux J.
This is an application by the Petitioner on 10 March 1994 for all forms of ancillary relief, periodical payments, lump sum provision and property adjustment order and an application by the Respondent on 8 March 1994 ‘for such settlement or transfer of property Order as may be just, such further or other relief as may be just’.
The parties were married on 14 November 1981 when the Petitioner was aged 21 years and the Respondent was aged 24 years, There were two children of the marriage, Yolanda, who was born 20 June 1982 and Richardo, who was born on 14 July 1983. Yolanda is 13 years and Richardo is 12 years. Yolanda has a learning disability and attends a special needs school while Richardo goes to primary school.
The Petitioner was granted a decree nisi of divorce on 25 February 1994 made absolute on 25 April 1994 and since the decree nisi both parties continue to live in the matrimonial home. The marriage lasted 12 years. On the granting of the decree nisi the Petitioner and the Respondent were granted joint custody of the children of the family while the Petitioner was granted care and control of them.
When they were married in 1981 they lived either at the home of the Petitioner's mother or the home of the Petitioner's grandmother. In 1989 the matrimonial home was purchased and the conveyance thereof was in their joint names as well as the mortgage of the property. A loan of $40,000 from the Petitioner's mother assisted in the purchase of the matrimonial home which loan was subsequently repaid by the Respondent. Also sums from the sale of the Respondent's property which was a gift to the Respondent from his grandfather was used towards the purchase of the matrimonial home. The Respondent pays the mortgage while the Petitioner keeps the accounts of the household, looks after and nurtures the children and performs all the household chores. Since the Petitioner went to work in 1985 she buys the groceries and she presently pays the telephone bills.
At the time of the marriage the Petitioner was a secretary and the Respondent a truck despatcher. During the first part of the marriage and for three years during the marriage the Petitioner stayed home and looked after the children, thereafter she worked full time. Presently the Petitioner is employed. The Petitioner has a back problem which was caused by the carrying of the first child and in carrying the second child it became worse. She sought medical treatment and opinion and there is nothing the doctors can do except to perform an operation but there is no guarantee that such operation will be successful. She experiences ongoing pain.
The Respondent is employed at Esso Ltd. as a multicraft mechanic and has been employed there for the past 18 years. If he continues in his employment he may be promoted to foreman.
In considering this matter, I think that the proper approach is first for the Court to consider the matters set out in section 29 of the Matrimonial Causes Act 1974 (hereafter referred to as ‘the Act’) in the light of all the circumstances of the case. It is the Court's duty so to exercise those powers as to place the parties, so far as is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other. All the enumerated circumstances in section 29 of the Act must be taken into account by the Court.
Counsel for the Petitioner submitted that the wife be allowed to remain in the matrimonial home until the youngest child of the family reaches age of 18 or finishes full-time education, whichever is later. At that time the matrimonial home be sold and proceeds divided equally between the parties; that the wife be paid a lump sum of $17,000.00 to enable her to purchase a car suitable for herself and children of the family; that the wife be allowed to retain the furniture in the matrimonial property as her property absolutely; that the husband be ordered to continue to make full mortgage payments on the matrimonial home of $2,300.00 and maintain the exterior of the matrimonial home and if the Court so orders the wife is prepared to forfeit the right to periodic payments to which she is entitled. Alternatively Counsel for the Petitioner submitted that the wife is prepared to pay half the mortgage and seek periodic payments for herself from the husband of $1,479.00 (1/3 of joint income—less her earnings) to which she is entitled; that the wife will maintain interior of matrimonial home and pay the insurance for the matrimonial home and the land tax for the property and the wife will rent the one bedroom apartment and retain the rent of $700.00; that the wife obtains maintenance for the two children of the family namely $100.00 per week per child and in addition the husband be ordered to:
(a) pay the cost of extra curricular activities of the children, i.e. ballet lessons, counselling, tutoring, pay for the costs;
(b) pay the costs of one...
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