Archer (Donna Marie) v Archer (Henrick Valentine)

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: HARRISON J
• Judgment Date: 19 September 2000
• Judgment citation (vLex): [2000] 9 JJC 1901
• Date: 19 September 2000

IN THE MATTER of premises situate at Greenwich Park in the Parish of St. Ann registered at Volume 1201 Folio 316 of the Register Book of Titles.

AND

IN THE MATTER of the Married Women's Property Act

BETWEEN

DONNA ANN-MARIE ARCHER

APPLICANT

AND

HENRICK VALENTINE ARCHER

RESPONDENT

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN EQUITY

MATRIMONIAL PROPERTY - Division - Division during divorce proceedings - Married Women's Property Act, s. 16

HARRISON J

1 Introduction

2 The matter before me concerns the division of matrimonial property brought by originating summons under section 16 of the Married Women's Property Act. The parties, Donna Ann-Marie Archer (hereinafter referred to as the applicant) and Henrick Valentine Archer (hereinafter referred to as the respondent) are husband and wife and were married on the 23 ^rd day of November 1985 at St. Ann's Bay, in the Parish of St. Ann. The marriage has broken down and they have been separated since March 1997.

3 In or around 1992, a house was purchased in their joint names for the sum of $420,000.00 at Greenwich Park, St. Ann. The deposit of $200,000.00 was paid on the 22 ^nd September 1992 and the balance of the purchase price secured on a mortgage from the Bank of Nova Scotia, Ocho Rios, St. Ann. The property which is registered at Volume 1201 Folio 316 of the Register Book of Titles was transferred on the 25 ^th day of September, 1996 to both applicant and respondent as joint tenants. An endorsement on the Certificate of Title shows that the mortgage was discharged on the 21 ^st October 1997.

4 The applicant now seeks a determination of their respective interests in the said property. She contends that the purchase of the property was a joint venture as they had pooled their funds in order to acquire it. She claims that the money for its acquisition and payment of the monthly mortgage were obtained from their joint bank accounts. She is therefore claiming to be beneficially entitled to 50% interest in the said property.

5 The respondent contends on the other hand, that the purchase of the property was never a joint venture and except for the applicant's contribution of $15,000.00, he was solely responsible for the deposit and payment of the monthly mortgage. He also contends that at the time he considered purchasing the property the applicant was not aware of his intention to do so until after he had paid the deposit. He further contends that he was purchasing the property for himself and that the applicant's name was only included in the Agreement for Sale and Transfer for convenience in order to transact business on his behalf He said he worked on a ship and it was difficult at times for him to be contacted. He has asserted therefore that the applicant is only entitled to a 15% share based upon her contribution referred to above.

6 The Law

7 The major issues for determination are whether or not the purchase of the property was a joint effort or was it one carried out solely by the respondent for his own benefit? The evidence will therefore have to be examined and the relevant case law considered.

8 In my view, the dicta of Lord Upjohn in Pettit v Pettit [1969] 2 All E.R 385 is a proper starting point. He has stated that:

"...in the absence of all evidence if a husband puts property in his wife's name he intends it to be a gift to her, but if he puts it into joint names then( in the absence of all other evidence ) the presumption is the same as a joint beneficial tenancy."[Emphasis supplied]

9 It is also necessary to consider the situation where parties have pooled their joint efforts in the acquisition of matrimonial property. In Nixon v Nixon [1969] 3 All E.R 1133 Lord Denning, Master of the Rolls, having examined the rights of respective spouses to share in the beneficial interest in property which is in the name of one of the spouses, went on to say that the principle in such cases is:

"...when husband and wife, by their joint efforts, acquire property which is intended to be a continuing provision for them both for their future, such as the matrimonial home or the furniture in it, the proper inference is that it belongs to them jointly, no matter that it stands in the name of one only. It is sometimes a question of what is the extent of their respective interests, but if there is no other appropriate division, the proper inference is that they hold in equal shares."

10 In the earlier case of Rimmer v Rimmer [1952] 2 All E.R 863 Romer L.J expressed the view that:

"...cases between husband and wife ought not to be governed by the same strict considerations, both at law and in equity, as are commonly applied to the ascertainment of the respective rights of strangers when each of them contributes to the purchase of property, and, secondly that the old-established doctrine that equity leans towards equality is peculiarly applicable to disputes of the character of that before us, where the facts, as a whole, permit of its application."

11 Each case therefore, has to be determined and examined on its own facts. Carey J. A stated in Josephs v Josephs RMCA 13/84 (unreported) delivered October 13, 1985:

"...In the absence of express agreement on the part of the spouse the court will presume or impute that having jointly contributed they intended to share equally. That proportion will be altered only where either share can be precisely ascertained or the contribution is trifling."

12 Analysis of the evidence and findings

13 It is without question in the instant case, that both the applicant and the respondent were signatories to the agreement for sale and mortgage deed in respect of the property and they are joint tenants on the certificate of title. The question therefore arises: What was the intention of the parties at the time of its acquisition?

14 Harrison J. A stated in Pinnock v Pinnock SCCA 52/96 (un-reported) delivered on the 26 ^th March 2000:

"The extent of the appellant's beneficial interest will be, prima facie, that which the parties intended ( Gissing v Gissing, supra ). Having inferred the common intention, the court would have to look at the contributions in order to determine the percentage of the appellant's interest. In Grant v. Edwards, (supra), the placing of the balance of the insurance monies in the parties joint account was found to be conclusive evidence of equal interests. However, joint ownership does not necessarily mean equal rights in the beneficial interest...."

15 I have carefully considered the evidence...