Simmons v Simmons
Jurisdiction | Bermuda |
Judgment Date | 09 May 2011 |
Date | 09 May 2011 |
Docket Number | Civil Appeal 2010 No. 2 |
Court | Court of Appeal (Bermuda) |
In The Court of Appeal for Bermuda
Before: Zacca, P; Evans, JA; Baker, JA
Civil Appeal 2010 No. 2
Mr A Richards and Mrs G Marshall for the Appellant
Mr G Bannister for the Respondent
The following case was referred to in the judgment:
Miller v MillerUNK [2006] UKHL 24
Ancillary relief - Long marriage - 26 years, no children - Division of assets - Properties in trust - Children of previous marriage - Lump sum
JUDGMENT of Baker, JA
1. This is a wife's appeal against an order of Justice Carlisle Greaves on the 15th March 2010 on her application for ancillary relief.
Facts
2. The brief salient facts are that the parties were married in 1983. The marriage was dissolved in 2009. The wife is now in her mid seventies and the husband in his late seventies. There are no children but the wife has an adult son by a former union and the husband has three adult children of whom two survive. The matrimonial home is 2 Harvey Road. Both parties still live there. It is free of encumbrances valued at $1,135,553. It is not disputed on the appeal that the wife should be treated as having a half share which is what the judge awarded her.
3. There are two trust properties, 5 Palmetto Road and Fenton Drive. These were purchased by the husband for, he said, the children. The husband, the wife and the husband's three children, two of whom survive, are beneficiaries of the Ottiwell Simmons Trust. But the husband controls the trust. The money came from the husband and the judge found that the wife never considered these properties as matrimonial assets.
4. 5 Palmetto Road, I speak of the equities, is worth $620,971 and Fenton Road $644,489. The original contentions were in respect of these two properties - by the husband that they were nothing to do with the wife and they should not be brought into the reckoning and by the wife that they were matrimonial assets in which she was entitled to a half share. However, this appeal was earlier adjourned before a different constitution of this Court when the wife said that she did not want to do the children out of their interests. Her lawyers had not previously made that clear.
5. Both 5 Palmetto Road and Fenton Drive have mortgages that are paid for out of the rental income. That income comes from these properties and from another property that the husband owns, East Gate, Lane which he inherited from his late father and that is outside the...
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