S v S
| Jurisdiction | Bermuda |
| Judgment Date | 02 May 2016 |
| Date | 02 May 2016 |
| Docket Number | Divorce Jurisdiction 2015 No 16 |
| Court | Supreme Court (Bermuda) |
[2016] Bda LR 73
In The Supreme Court of Bermuda
Divorce Jurisdiction 2015 No 16
Ms G Marshall for the Petitioner
Respondent in person
The following cases were referred to in the judgment:
Butterfield v Butterfield [2009] Bda LR 51
White v White [2000] UKHL 54
CS v JS 2010 No 16 (unreported)
Ancillary relief — Periodical payments — Lump sum — Inherited property — Pensions — 15 year marriage, 2 children — Shared custody and control of children
JUDGMENT of Wade-Miller J
1. The parties in this matter are the wife (Petitioner) and the husband (Respondent), so called even though they are divorced.
2. The parties lived together in Japan for a year, then married on 21 May 1999 in Halifax, Nova Scotia, Canada.
3. The wife is a Bermudian citizen and, at the time of their wedding, the husband was a Canadian citizen. The husband was granted Bermudian status in August 2010.
4. The parties are both 41 years old. They have two children: child G born in May 2006, and child C born in June 2009. At the time of the current proceedings child G was 9 years old, and child C was 6 years old.
5. The marriage lasted about 15 years. The parties separated in December 2014. The wife filed to dissolve the marriage on the grounds of the husband's unreasonable behaviour. On 27 March 2015, decree nisi was granted; it was made absolute on 11 May 2015.
6. There are two applications before the Court: each party filed an application for ancillary relief.
7. On 3 February 2015, the wife filed her application for ancillary relief seeking:
… an Order that the Respondent be ordered to pay maintenance pending suit for the Petitioner and interim periodical payments and periodical payments for the children … secured provision, lump sum or sums provision as may be just and that the Respondent may be ordered to make such payments or otherwise by way of property adjustment as may be just or such further or other relief as may be just.
8. On 19 March 2015, the parties agreed inter alia on an interim order for the maintenance of the children – without prejudice to their positions at the final hearing – regarding their respective contributions to the reasonable needs of the children.
9. On 20 March 2015, the husband filed his application for ancillary relief seeking:
… an Order that the Petitioner pay to the Respondent such lump sum payment as may be just and/or for such further or other order including an adjustment of property order as the Court may decide.
… [and] that the Petitioner pay the costs of this application.
10. Each party filed an affidavit and gave oral evidence. The wife's mother also filed an affidavit.
11. The former matrimonial home consists of two units (one upper and one lower). The property was assessed by Horsefield Property Services Ltd and valued at $500,000: $275,000 for the upper unit, and $225,000 for the lower unit. The net value of the upper unit is $255,554.
12. The matrimonial assets and their value are:
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i. Net equity in the former matrimonial home ($255,554);
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ii. A family car ($8,000–$10,000); and
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iii. A motorcycle ($2,500).
The husband has kept the car and the motorcycle.
13. The wife's application is supported by her mother's affidavit of 3 July 2015. In that affidavit, the wife's mother states that the former matrimonial home was purchased in November 2000 for $470,000. The wife's mother provided 46% of the purchase price for the property (approximately $200,000). To cover the balance, the wife and her mother arranged a mortgage with Capital G (now Clarien Bank). The husband was the guarantor of that mortgage.
14. Two days before the matrimonial home was purchased, the husband, the wife and her mother entered into a deed of family arrangement (the Deed). The Deed confirms that 46% of the funds to purchase the property came from the wife's mother, and 54% from a mortgage with Capital G. The mortgage was to be repaid by the husband and the wife. The Deed stipulated that the wife's mother would occupy the lower unit at the property, and the husband and wife would occupy the upper unit. The Deed also specified that in the event of a divorce, the wife was to pay the husband the value of his equitable interest in the property within one year of their divorce.
15. The parties enjoyed a preferential rate for the mortgage because the wife worked at HSBC Bank. This preferential rate resulted in a saving of more than $73,000 over the course of the mortgage. The parties contributed equally towards repaying the mortgage balance.
16. In 2005, the parties purchased a property in Canada using funds borrowed against the matrimonial home mortgage. When they sold this jointly held Canada property, they used the proceeds from that sale to reduce the mortgage on the matrimonial home in Bermuda.
17. By 2013, the mortgage for the matrimonial home was paid off: the property is now debt-free.
18. After the divorce, the wife moved out of the matrimonial home but the husband continued to live there.
19. The wife's mother states that she is relying on the Deed: the parties are now divorced so the husband is to receive his share of the property and leave the matrimonial home. Her relationship with her ex son-in-law is not amicable. She insists that as the parties are now divorced the Deed does not allow him to remain in the property. She asserts that she is not prepared to negotiate arrangements that deviate from the terms of the Deed.
20. The wife states that without her mother's financial assistance the parties would not have been able to purchase the matrimonial property.
21. The wife states that the husband refused to leave the former matrimonial home, so in December 2014 she left and rented accommodation for $2,500 monthly.
22. The wife asserts that the husband owes land tax and maintenance for the matrimonial home: as of 4 January 2016, he owed $1,314.
23. The husband argues that when the parties purchased the matrimonial home their situation was different. His lack of Bermudian citizenship meant he could not legally purchase property in Bermuda. Also the parties had no children to consider when he signed the deed of family arrangement.
24. The husband maintains that the main reason he signed the Deed:
… was the fact that he did not have Bermudian status and did not take into fact the consideration of his future children that would need a...
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