S v S
| Jurisdiction | Bermuda |
| Judgment Date | 15 March 2010 |
| Date | 15 March 2010 |
| Docket Number | Divorce Jurisdiction 2008 No. 237 |
| Court | Supreme Court (Bermuda) |
In The Supreme Court of Bermuda
Divorce Jurisdiction 2008 No. 237
Mrs G Marshall for the Petitioner
Mr A Hodgson for the Respondent
White v WhiteFLR [2000] 2 FLR 981
McFarlane v McFarlaneFLR [2006] 1 FLR 1186
Charman v CharmanFLR [2007] 1 FLR 1246
Butterfield v ButterfieldBDLR [2009] Bda LR 51
Ancillary relief - Long marriage (26 years), no children - Multiple houses - Clean break
1. The Petitioner and Respondent were married in 1983. They obtained their Decree Nisi and Absolute in 2009. It was therefore a twenty-six (26) year marriage. At the time of the divorce they had attained the ages of seventy-three (73) and seventy-six (76) respectively. There are no children born to the union but from their previous marriages, the Petitioner has one adult son and the Respondent has three adult children.
2. The Petitioner made application for ancillary relief. Her claim is for one half of the entire estate. The Respondent has resisted her claim and advocates that she should be awarded nothing.
No. 2. Harvey Road
3. In 1980, some three years or thereabouts prior to the marriage, the Respondent purchased a property at Harvey Road. He financed the purchase in part from his own savings, contributions from his father and by way of a fifteen (15) year Mortgage. Immediately following the marriage the couple lived together in that house up to and since their divorce. At all times they treated it as their matrimonial home. The house is now free of encumbrances since 1998 and is valued at $1,225,000.
East Gate Lane
4. In 1981, the husband inherited a piece of property from his fathers' estate at East Gate Lane. After some dispute pertaining to the estate he also acquired, in 1986, one of his brothers shares for the sum of $15,000. That property is now free of encumbrances and is valued at $650,000.
The Trust
5. In 1998, the Respondent established the [S] Trust. He was appointed as trustee. The Petitioner, the adult children and the Respondent were named as beneficiaries.
No. 5 Palmetto Road
6. In 1998, the Respondent, in his capacity as trustee of the [S] Trust, purchased a property at 5 Palmetto Road for the sum of $200,000. He financed the purchase by way of a Mortgage for $70,000 and by way of proceeds obtained from his sale of a
property at Ord Road. In addition he paid the mortgage from his personal income and from his rental income. The value of the Palmetto property is $740,000.
Fenton Drive
7. In 2001, the Respondent in his capacity as trustee of the [S] Trust, purchased a property at Fenton Drive for $245,000. It was financed by way of a Mortgage for $145,000 and from savings. The mortgage is being paid from his income and from the properties rental income. His daughter with her family resides in that property or part thereof. It is valued between $850,000 and $875,000.
Respondent's other Assets
8. The Respondent's other assets consists of, savings and other financial investments valued at about $270,000. It is accepted that except for the Harvey Road property which was acquired three years prior to the marriage with part payment arising from the Respondents own means up to the time of the marriage and the inherited part of the East Gate Lane property, the other real property assets were acquired at different times during the marriage and were paid for during the marriage - inclusive of the mortgage payments for Harvey Road until its satisfaction.
Income
9. The Respondent enjoys an income from social insurance, pension, rent, and as a parish coordinator, totalling $8,837 per month.
The Petitioner's Assets
The United States of America house.
10. She bought a house in the United States of America about 2003 for $35,000. It is assessed at a tax value of $61,000.
The United States of America Condominium
11. She together with two other siblings bought a condominium in the USA about fifteen or twenty (15/20) years ago. Her contribution to the purchase price was $7,000. She has a one third interest in the present value.
Income
12. The Petitioner enjoys an income of $2,550 per month from social insurance, pension, teachers retirement fund, and US social security. In addition she earns approximately $1,779 per month as a substitute teacher and $450 per month from the US house rental.
Other Assets Unknown
13. The parties own a ten year old motor car valued at $10,000. The furniture at Harvey Road is valued at $17,000.
Harvey Road
14. The Respondent asserts that after the mortgage was satisfied in 1998, he acted upon advice and established the [S] Trust. That by way of re-conveyance dated 1998, the Bank upon his instructions conveyed the Harvey Road property to the trust.
15. He pointed to the recitals and the habendum in support of that. The Petitioner asserts that the conveyance to the trust is of suspect legality and effectiveness, since the stamp duty thereon does not demonstrate a sufficiency in quantum to support a conveyance from the original beneficiary Mr. S, to the several beneficiaries named in the trust. Thus the ownership of the Harvey Road property remains in dispute. The Respondent further asserts that the Harvey Road property was in effect entirely financed from his income throughout the marriage since he established a joint account into which he placed his income and from which the Petitioner drew to take care of the
household, while the Petitioner kept her income to do with as she pleased. The Petitioner asserts that she played the role of homemaker, inclusive of washing and cooking; she assisted in the renovation of the kitchen and repair of windows; she paid for the overseas vacations of the couple and...
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