V v v (Ancillary Relief)

• Jurisdiction: Bermuda
• Judgment Date: 14 April 2023
• Court: Supreme Court (Bermuda)
• Docket Number: Divorce Jurisdiction 2017 No 155

Between:

V

Wife

and

V

Husband

[2023] Bda LR 36

Divorce Jurisdiction 2017 No 155

In The Supreme Court of Bermuda

Ancillary relief — 6 year marriage, 1 child — Lump sum and property adjustment order — Inherited assets — Dissipation of assets

The following cases were referred to in the judgment:

Miller v Miller, McFarland v McFarland[2006] 2 AC 618

Hart v Hart [2017] EWCA Civ 1306

Scatliffe v Scatliffe [2017] 2 WLR 106

Martin v Martin [1976] Fam 335

Mrs S Smith-Bean for the Wife

Mrs A Dismont for the Husband

JUDGMENT of Stoneham J

Preface

1. Let me apologize for the delay in producing this decision. I take full responsibility for the delay and accept that a delay of two (2) years is a gross oversight and failure of my judicial responsibilities.

Introduction

2. Following the presentation of a divorce petition, parties to a marriage may apply to the Court for the purpose of determining the division of assets (ancillary relief). There are two such applications before the Court:-

• (a) The Wife's Notice of Application for Ancillary Relief dated 13 March 2018 seeking, inter alia, that:-

  • ii. The Husband shall transfer his interest in the ¹/₂ acre lot of land to the Wife and the cost of the transfer will be paid by the Wife;

  • iii. The Husband shall transfer his interest in the ¹/₄ acre lot of land to the Wife and the costs of the transfer will be paid by the Wife

  • iv. The Husband shall retain the gold coin collection

  • v. The Wife shall retain the silver coin collection

  • vi. Each party shall retain their individual pension

  • vii. The Husband shall return the sum of $100,000 to the Wife

  • viii. The Husband shall retain:

    • • All property he inherited from his mother

    • • Monies in his accounts overseas

    • • His jeep motor vehicle overseas

    • • His Kia Rio motor vehicle

    • • His motorbike

  • ix. The Wife shall retain:

    • • Monies in any account in her sole name in Bermuda and any other jurisdiction worldwide; and

    • • The Kia Soul motor vehicle

  • x. There shall be no order as to costs

• (a) The Husband's application made by way of Notice of Application for Ancillary Relief dated 4 July 2018 seeking, inter alia,:-

  • i. Lump sum provision;

  • ii. Property adjustment order in relation to the ¹/₂ acre lot of land located outside of Bermuda (“the ¹/₂ acre lot of land”) and the ¹/₄ acre lot of land (“the ¹/₄ acre lot of land”); and

  • iii. An order that the Wife shall be responsible for the costs of the ancillary relief application.

Chronology of proceedings

3. The chronology may be summarized as follows:-

• • On 8 March 2018 the Wife filed an application for Ancillary Relief seeking an Order for both parties to be 50% responsible for the expenses of the minor child.

• • By way of consent order dated 19 April 2018 directions for the hearing of the ancillary application was agreed.

• • On 4 July 2018 the Husband applied to the court for determination the assets of the marriage seeking a property adjustment order and further order relative to the maintenance of the child of the Marriage.

• • By way of consent order dated 1 August 2018 the parties agreed to consolidate their ancillary applications.

• • By order dated 4 September 2018, the Wife and Husband were ordered to respond to the outstanding rule 77(4) requests on or before 7 September 2018.

• • On 6 November 2018, the Registrar ordered the Wife to provide all outstanding rule 77(4) request on or before 20th November 2018.

• • On 7 February 2019 the Wife filed an application in person seeking an order that the Husband be ordered to pay 50% of all school and care expenses for the minor child. Additionally, the Husband filed an application seeking an order pursuant to paragraph 1 of the Order dated 6 November 2018 regarding disclosure.

• • On 9 April 2019 the Registrar ordered that the party's respective summons to be heard on 25 April 2019. The matter was not heard until 1 October 2019, when the Court ordered the Wife to provide the requested disclosure within 21 days of the date of the Order.

4. Upon the listing of this matter, the world was in the midst of the global pandemic and travel in and out of Bermuda was restricted. Mrs. Smith-Bean, Counsel on her behalf of the Wife was positioned in America. She and the Wife appeared via remote means. The Husband, who had since returned to his home country, appeared via remotes means. His home country was in a state of emergency lock-down. Mrs Dismount, Counsel on his behalf appeared physically before the Court. The Court is most grateful to the Court's IT team for ensuring, so far as possible, the continuity of this hybrid hearing format. For various unforeseen reasons, the hearing lasted far longer than originally estimated.

5. The Wife filed affidavit evidence:-

• i. First Affidavit sworn 15 May 2018

• ii. Second Affidavit sworn 25 July 2018

• iii. Third Affidavit sworn 2 February (filed without leave of the Court days prior to the scheduled hearing). The Court permitted reliance on its contents and the Wife was permitted to update her position at the hearing.

6. The Husband filed one affidavit sworn 4 July 2018 and updated his position during examination in chief during the hearing. Mrs. Smith Bean and Mrs. Dismount each had opportunity to cross-examine the Wife and Husband including various other witnesses.

7. The Court has considered all of this evidence.

Essential facts

8. At the time of the hearing the Wife was 38 years old and the Husband was 43 years old. In or about 2002 the Wife and Husband met in their home country, where she lived with her parents and the Husband shared accommodations with his mother. The Wife described their relationship as a ‘long-term relationship’ whilst the Husband described it as ‘on and off’ for a number of years.

9. In 2007 the Wife pursued further education overseas which included qualifying as professional accountant in the United Kingdom. In 2008 the Wife secured employment within Bermuda's international financial services industry earning approximately $8,000.00 per month. The following year, in 2009, the Husband relocated to Bermuda to join the Wife.

10. He soon obtained employment as an audio technician, and remained with this employer throughout the marriage earning on average an income of $4,467.72 per month with a discretionary annual bonus in the sum of $3,000.00. The Husband's salary was deposited into the parties' joint savings account and used by the parties to cover the lion share of their household expenses including the rent payable for matrimonial accommodations at the rate of $2,800 per month, utilities and other related expenses. The Wife's salary was used to pay any shortfalls and the balance deposited into the parties' joint US dollar savings account.

11. In 2011 the parties travelled to the United States of America to marry. At about this time, the Wife's monthly salary was $10,675.00 per month. The following summer, 2012, the parties jointly purchase two lots of land in their country of origin (i) ¹/₂ acre and (ii) ¹/₄ acre. The ¹/₂ acre lot was purchase for EC $440,000.00 (BD $162,809.20). The Husband contributed EC $100,000.00 into an investment account which he then grew to EC $200,000.00 and the Wife contributed $212,000.00 to the balance and covered all closing costs for the purchase. The ¹/₄ acre lot was purchased for EC $132,975.00 (BD$49,203.53) by way of Mortgage agreement in the joint names of the Wife and Husband.

12. In the fall of 2012 the Husband's mother passed away leaving him an inheritance. The parties agreed that the Husband would use a portion of his cash inheritance to satisfy the outstanding mortgage on the ¹/₄ acre lot. Throughout the marriage the Wife regularly transferred large sums of money overseas to her parents to assist in paying off their debts. In 2013 the Wife's parents sold their home and gave the proceeds of the sale to the Wife and Husband to place in a high interest yielding savings account. This account was held in the joint names of the Wife and Husband.

13. In 2014 the parties celebrated the birth of the one child of the family. In early 2017 difficulties beset the marriage. At this point, the Wife and...