Susan Mary Hamza v Mohamad Suleiman Hamza

• Jurisdiction: Bermuda
• Judgment Date: 03 October 1995
• Docket Number: Divorce Jurisdiction 1993 No. 255
• Date: 03 October 1995
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Wade, J

Divorce Jurisdiction 1993 No. 255

Susan Mary Hamza

Petitioner

and

Mohamad Suleiman Hamza

Respondent

Mr. Kieron Unwin for the Petitioner

Mr. Darcy Lord for the Respondent

JUDGMENT

Wade, J.

Susan Mary Hamza, the Petitioner and Mohamad Suleiman Hamza, the Respondent were married on the 15th day of June, 1972 when the Petitioner, now 42 years old was 19 years of age, and the Respondent now 52 years old, was 29 years of age. There are four children of the union: Nadia Wydad born on the 6th day of February, 1973, now aged 22; Sarrah Iman, born on the 30th day of January, 1975, now aged 20; Mohamad Suleiman, Jr. born on the 8th June, 1979, now aged 16; and Alia Elizabeth born on the 29th July, 1980, now aged 15. Nadia and Sarrah who are over the age of 18 years are still receiving instructions, full-time at educational establishments in England. It is anticipated that Nadia will complete her education and training within the next two years. Mohamad and Alia are also in full-time education in England.

The breakdown of the marriage occurred in 1993 at which time the Petitioner fled the former matrimonial home and the country. The Petitioner and the Respondent have not lived together since that date.

On the 17th October, 1994, after a heated and contested hearing of a Petition and Cross-Petition for divorce, I granted a Decree Nisi of Dissolution of the marriage of these parties to the Petitioner. In addition, I adjourned the issue of custody in respect of Mohamad and Alia and Ancillary Relief to Chambers.

For convenience I shall refer to the Petitioner and the Respondent as the wife and husband respectively, even though they no longer enjoy that status.

“The wife and husband have agreed not to pursue the issue of custody of Mohamad and Alia, consequently each parent continues to have the legal right to the children's custody which ends on their respective eighteenth birthday. This seems to me to be a common sense decision having regard to the reality that courts of law recognize that as children grow older and they become increasingly intelligent and independent, they are given ‘a voice’ in decisions which affect their future custody, care and control. The older a child is, the more courts are inclined to hesitate to enforce the legal right of a parent to custody against the wishes of a child.

The issues of Ancillary Relief and periodical payments for the benefit of the four' children until they cease full-time education, came before me for consideration on 23rd August, 1995. The hearing lasted 5 days. A total of 5 affidavits together with exhibits were tiled, (3) by the wife, and (2) by the husband. 1 have also considered some 6 affidavits filed in the maintenance pending suit application and the affidavits filed in the proceedings heard in August 1994 relating to the maintenance of Nadia and Sarrah.

The husband has proposed a ‘clean break’ settlement to the wife whereby ‘On the Rocks’—the former matrimonial home, together with its contents would be transferred to her in full and final settlement of all her claims to Ancillary Relief.

The wife testified and was cross-examined on her affidavits. She called one accountant who testified and was cross-examined. The husband's accountant testified and was cross—examined. The husband did not appear at the hearing. At the commencement of the hearing, the husband's Counsel informed the court that ‘his client was not interested in taking any part in the proceedings and he would rely on his affidavit evidence only.’ As the hearing progressed, the husband's Counsel intimated that the husband would appear and testify in order to counter some of the wife's evidence. But on the day the husband was expected to testify, his Counsel informed the court that the husband said he could not make himself available because one Dr. McGuire who is employed by him to work in his practice was away, consequently he could not leave the practice to appear and testify.

The applications I must consider fall under two limbs:

First, the wife seeks the following orders:

• (i) a transfer of property order in respect of the property called ‘Preferred Lie’ which is owned by the husband and wife;

• (ii) a lump sum order sufficient to pay off the mortgage of ‘Preferred Lie’;

• (iii) the equivalent of periodical payments for the wife for a period of ten years (Duxhury calculation); Alternative periodical payments at an appropriate rate until death, remarriage or further orders.

  Second, periodical payments to and for the benefit of the four children until they cease full-time education.

I shall not restate the history of this marriage which is exhaustively covered in my Judgment rendered on the 17th of October, 1994. Therefore, I shall restrict myself to the salient factual matters which I must consider on these applications.

At the time of the marriage the husband was a newly qualified ophthalmologist. They lived in England from 1972 to 1977. They moved to Libya in 1977. The wife first moved to Bermuda in 1982 and was joined by the husband later that year.

The evidence shows that the husband is not work shy. From the inception of the marriage the husband has worked very hard. When he moved to Bermuda and commenced his ophthalmologist practice, his earnings grew to a substantial level and by the end of the marriage, the parties had a comfortable standard of living.

The parties' standard of living was not always comfortable: When they lived in England they either lived in rented accommodation or accommodation provided by the hospital where the husband worked. When they moved to Libya they lived at the husband's family home and thereafter in rented accommodation. The husband has controlled the purse strings from the inception of the marriage. Shortly after the marriage the wife was forced to work (cleaning for an old lady and as a dental nurse) for a short period because the husband did not provide her with funds for her own needs. After the wife ceased working she did not work again until 1982 when she returned to Bermuda from Libya. It is of note that prior to the marriage the wife had been accepted at Bristol University into a degree course. She commenced her course work but after 6 weeks she discontinued her studies at the husband's request.

In 1982 when the wife and the 4 children of the family moved to Bermuda, they stayed in an apartment adjoining her mother's home. Indeed when the husband joined them in 1982 they continued to reside in this apartment until 1984 when their first home ‘On the Rocks’ was bought. In April 1982 the wife secured a job as a dental assistant to meet household bills. The husband arrived in Bermuda in December 1982 and in 1983 the wife gave up this job.

In 1984 the former matrimonial home (‘On the Rocks’ now valued at $745,000) was purchased for $423,000. The husband paid a deposit of $42,300 being 10% of the purchase price from monies which he had saved from his earnings. At first, the property was conveyed into the wife's name but was conveyed into the parties joint names within a year or two of the purchase. The balance of the purchase price (some $380,000) was borrowed by the husband who paid off this debt within 3 years from the earnings from his practice.

The husband continues to reside in ‘On the Rocks’ which has four bedrooms, a large living room with fireplace open to the front lawn overlooking the water, dining room open to a covered porch kitchen and laundry, hall and two bathrooms, and a separate guest cottage with a bathroom. The home is built on 1/3 of an acre ‘choice waterfront’ property.

In 1990 the husband purchased the Point Finger Road property—which houses his medical practice—for $500,000. Again, this property was purchased in the wife's name, but in 1993 it was conveyed into the husband's name. The husband borrowed the $500,000 for the purchase price plus another $420,000 for it's renovation costs. These sums (approximately I million dollars) were paid off from the earnings from the practice within a two year period. There is an apartment adjoining this property which attracts a rent of $1,000 per month, but it has not been rented since 1994. The property is currently valued at 1 million dollars.

The wife places a value of $200,000 on the interior soft furnishings in the practice, whilst- the husband depones that the wife's figure is a ‘wild exaggeration’. He estimates the interior soft furnishings retail value to be more in the region of $20,000, ‘as they are after all second hand, and they cost in the region of $30,000 new’.

In May 1991, the husband purchased the property called ‘Preferred Lie’ in the joint names of the parties. The entire purchase price of 1.3 million was borrowed. ‘Preferred Lie’ now valued at $1,150,000, has 5 bedrooms with bathroom-suites, study, dining room, living room, entrance hall, den, kitchen, butler's pantry, breakfast room, basement and utility area. It has a pool and a pool house and stands on .75 acres. The property is rented and the husband presently receives rental income of $5,900 per month from this property. The rental income will cease when the lease expires in October, 1995.

In May 1993 the husband paid $247,437.99 off the loan. According to the wife's evidence, when the husband paid off the $247,437.99 in May 1993 he told her that the loan would be fully paid off by the summer of 1995. She estimates the contents of ‘Preferred Lie’ to be $100,000 which includes a piano worth $40,000.

The husband depones that the contents of ‘Preferred Lie’ are not worth $100,000 but rather some $20,000. He said they paid $30,000 for the contents when they bought it. As regards the piano, he said that it was purchased for £25,707.52 including freight. The husband wishes to keep the piano for the youngest child of the family Alia who according to him is a ‘keen pianist’.

There is a substantial issue as to the actual...