M v M (Maintenance pending suit)

• Jurisdiction: Bermuda
• Judgment Date: 27 November 2018
• Date: 27 November 2018
• Docket Number: Divorce Jurisdiction 2010 No 206
• Court: Supreme Court (Bermuda)

[2018] Bda LR 107

In The Supreme Court of Bermuda

Divorce Jurisdiction 2010 No 206

Between:

M

Petitioner

and

M

Respondent

Mr A Richards for the Petitioner

Mr C Luthi for the Respondent

The following case was referred to in the judgment:

F v F [2001] Bda LR 43

BD v FD (Maintenance pending suit) [2016] 1 FLR 390

Maintenance pending suit — 13 year marriage, 1 child — Standard of living before breakdown — Principles to be applied

JUDGMENT of Wheatley R

Introductory

1. The Petitioner and the Respondent were married on 9 April 2005. The divorce petition was originally filed in 2010; however, the parties attempted a reconciliation for an eight year period. Regrettably, this was unsuccessful and the Petitioner was granted leave to file an Amended Petition on 6 November 2018. The divorce proceedings will now follow the usual course. There is one child of the family who is now 12 years old.

2. The Petitioner filed her Notice of Application for Ancillary Relief on 24 September 2018 (“the Application”). The Application sets out the relief being sought by the Petitioner as follows:

“The Petitioner applies for an Order that the Respondent be ordered to pay maintenance pending suit and/or interim periodical payments for herself and the child of the family….to include a provision for her reasonable legal fees and such further or other interim relief as may be appropriate in all the circumstances.”

3. Counsel for the parties appeared before me on 23 October 2018 seeking directions specifically to address the issue of maintenance pending suit. As per the Order dated 23 October 2018, the hearing was set down for 20 November 2018. This the application before me now. Both parties filed Affidavit evidence which they relied on for the purpose of the determination of this application.

The Facts

Petitioner's position

Income

4. The Petitioner's net monthly income is $1,200 per month for her salary at the Company. It is noted the Petitioner owns 60% of the shares in this Company which are held in a trust that was settled during the marriage. The evidence submitted is that this income was previously supplemented by dividend payments which amounted to approximately $20,000 per year. This would bring her monthly income to $3,000 per month. Whilst it was submitted by Mr Richards that a dividend payment has not been made since April 2018 which means the Petitioner's income is only $1,200 per month, at this time I was not able to identify evidence in the Petitioner's Affidavit to support this position. Therefore, I accept the Petitioner's monthly income from the Company as being $3,000 per month. The Petitioner's income position was not disputed by the Respondent.

5. The Petitioner does not receive any other source of income, although she has indicated she has use of a credit card with a limit of $5,000 that she uses to pay household expenses. The Respondent has solely been responsible for the payments of this credit card.

Expenses

6. In summary, the Petitioner is seeking a total of $30,000 per month which is based on the following expense estimations:

• i. $19,600 for maintenance for herself and the child of the family

• ii. $2,300 per month in order for her to fund and obtain a loan of $75,000 for the purchase of household furniture.

• iii. $10,000 per month for legal fees.

7. It should be of note that at the commencement of the hearing, Counsel queried whether I would be considering the Respondent' proposal for the Petitioner to remain in the matrimonial home. Given the recommencement of the divorce proceedings which have been filed on the basis that marriage has broken down irretrievably and the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent, I would not consider any requirement for the Petitioner to remain in the matrimonial home even though the hearing of the Decree Nisi has yet to be heard. In any event, I do not believe I have any jurisdiction to make an order requiring a party to remain in a particular household.

8. The Petitioner's expenses are listed at page 162 of the Exhibit to her affidavit. All of the monthly expenses submitted by the Petitioner are disputed by the Respondent. Consequently, I will address each item in turn.

9. The Petitioner is seeking $10,000 per month for rental accommodation. This property is a 4 bedroom home which can also accommodate the three dogs the Petitioner wishes to take with her. It is also centrally located in close proximity to the school where the child of the family attends.

10. The Respondent has indicated he believes this level of rent is excessive on the basis that it would just be the Petitioner and the child of the family residing at the property. The Respondent wishes to keep the dogs. It was further submitted there was no need for the property to be centrally located as Mr Luthi submitted “I am sure there are people who live in Warwick who have children that attend [school]”. He also submitted the parties have not enjoyed a high standard of accommodation throughout the marriage and has proposed several rental properties at Tab 7 of the Respondent's Skeleton Arguments ranging between $5,500 and $7,000 per month.

11. The Respondent wishes to remain living in the matrimonial home which consists of a main house comprising 4 bedrooms, 5 bathrooms, a gym/store room, a den/TV room, etc. There is also a 1 bedroom, 2 bathroom apartment. The matrimonial home has a value of approximately $3 million which has been newly reconstructed. It is accepted the monthly mortgage payments are $15,000 per month.

12. I find it difficult to accept Mr Luthi's submissions that the parties have not always lived in such a luxury accommodation, however, the reality is this is the lifestyle the parties are now living. It would be completely remiss of me to require the Petitioner to live in accommodation which is far below the standard of the matrimonial home where the Respondent will be residing on the basis the parties did not live in such a luxurious property until the past year. Further, it is not for me to decide who keeps the three dogs as this is clearly disputed. Having said this, the Petitioner should be afforded the opportunity to obtain accommodation where a landlord is willing to allow the dogs to reside there. The rental accommodation which the Petitioner wishes to reside in, is in my view reasonable given the luxurious matrimonial home the Respondent will be residing in.

13. The Petitioner is claiming $2,000 per month for groceries for herself and the child of the family. In addition, she is seeking $600 for restaurants. The Respondent has submitted both amounts are unreasonable given they are in relation to one adult and one child. The reality is that grocery expenses in Bermuda are very high and if one is purchasing higher quality and healthier foods, such as organic produce or the like grocery expenses can skyrocket. Bearing in mind the evidence the Petitioner has provided by way of credit card statements to evidence the monthly grocery expenditure, I will accept that $2,000 is a reasonable sum as it is representative of two-thirds of the usual monthly expense. I accept the Petitioner should have a sum of maintenance apportioned to eating at restaurants as this is a part of the standard of living the parties are accustomed. Having said this, I believe $500 would be a more reasonable figure as this represents approximately two-thirds of the expense of $769.06 which is representative of the expensive for both parties and the child of the family.

14. The Respondent avers the monthly expenditure of $1,250 on clothing as being excessive and has proposed a sum of $250 to be what he considers as being more reasonable. Whilst the Respondent has taken this...