T v T

• Jurisdiction: Bermuda
• Judgment Date: 19 January 2007
• Date: 19 January 2007
• Docket Number: Divorce Jurisdiction 2006 No. 183
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Ground, CJ

Divorce Jurisdiction 2006 No. 183

BETWEEN:

T

Petitioner

and

T

Respondent

Ms K Lomas for the Petitioner

Ms A Cartwright for the Respondent

The following case was referred to in the judgment:

F v F (19893) 4 FLR 382

Rules of the Supreme Court, Order 58

Appeal on interim periodical payments — Whether capital sums should be taken into account in interim orders — Principles to be applied

RULING of Ground, CJ

1. This matter comes before me on appeal from an order of the Registrar awarding interim periodical payments to the wife and for the benefit of the two children of the marriage in the global sum of $1,500 per month. That order was made on 5^th December 2006. It has not been drawn up, but the Registrar's note reads:

‘Wife had spent $37K + $6,400 of joint savings from $50K. Left only $6,000 for hus. $1500 a month at the end of each month.—H. undertakes to pay ¹/₂ medical and dental payments to begin at end of Jan 07. Costs to applicant.’

2. Ms. Lomas for the wife argues that it was wrong in law for the learned Registrar to take into account capital sums taken by the wife, as they should only be brought into account when making the final order for ancillary relief. She also contends that the order is manifestly inadequate.

3. Although there was no dispute about the principles to be applied on such an appeal, there was some uncertainty as to what the governing provisions are. In my judgment such an appeal from the Registrar is governed by Order 58 of the Rules of the Supreme Court 1985, which apply by virtue of Rule 3 of the Matrimonial Causes Rules 19741. The practice on such an appeal is set out in the Note at 58/1/3 of the Supreme Court Practice 1999 ed., and is that the appeal is by way of rehearing.

4. As to the principles to be applied on an application for an interim order, both parties agree with the principles adumbrated in F v FFLR(1983) 4 FLR 382, which are stated in the headnote as follows:

‘On an application for maintenance pending suit in an ordinary case, a broad view should be taken of the means and income of the parties; the court should take into account the income and earning capacity of the parties and such other matters as might be appropriate to the individual case;’

5. While I do not entirely accept the submissions of counsel for the Petitioner that the learned Registrar should not have taken into account her substantial withdrawals from joint savings, I do...