Boswell (Dorothy Patricia) v Kenneth Delroy Boswell and Teino Boswell

• Jurisdiction: Jamaica
• Judge: N. E. McINTOSH, J.
• Judgment Date: 31 July 2008
• Judgment citation (vLex): [2008] 7 JJC 3101
• Court: Supreme Court (Jamaica)
• Date: 31 July 2008

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2006/HCV02453

BETWEEN

DOROTHY PATRICIA BOSWELL

CLAIMANT

AND

KENNETH DELROY BOSWELL

1 ^st DEFENDANT

AND

TEINO BOSWELL

2 ^nd DEFENDANT

For the Claimant:

Dr. Lloyd Barnett and Mr. Keith Bishop instructed by Bishop & Fullerton;

For the 1 ^st Defendant:

Mr. Gordon Steer, instructed by Chambers Bunny & Steer;

For the 2 ^nd Defendant

Miss Leila Parker

MATRIMONIAL PROPERTY - Division of property - Declaration as to entitlement to assets - Property (Rights of Spouses) Act 2004 - Dissolution of marriage - Powers of court in distributing property

N. E. McINTOSH, J

1 The Claimant and the 1 ^st Defendant solemnized their common law union of some six years or so, in May of 1984. However, 2002/2003 saw each party taking steps to have the marriage dissolved, resulting in a Decree Absolute being granted to the 1 ^st Defendant on June 3, 2005. Then, on July 11, 2006 the Claimant filed an application under The Property (Rights of Spouses) Act, 2004, by way of a Fixed Date Claim Form, seeking a declaration that she is "entitled to a fifty per cent (50%) share" of all the assets they acquired during the course of their common law union and subsequent marriage. It is her contention that she is so entitled because she made both direct and indirect contributions to the acquisition of the assets specified in her supporting affidavit.

2 Her claim underwent some amendment in July of 2007, however, after one of the children of the union, Teino Boswell, sought and obtained leave to intervene in a bid to protect his interests in certain of the assets to which the claim relates. Accordingly, apart from adding Teino Boswell as the 2 ^nd Defendant, the claim became one for a fifty percent share in the assets "or such other percentage as the circumstances warrant."

3 Although at the hearing of Teino Boswell's application, leave was granted to him to file, by November 12, 2007, an affidavit in response to the Claimant's affidavits, no affidavit was filed. His evidential input into this matter consisted of what could be gleaned from the affidavit filed in support of his application to be joined as a party to these proceedings.

4 The Claimant's Entitlement to Apply

5 Section 13 of the Property (Rights of Spouses) Act, 2004 — ("the Act") provides as follows:

• " — (1) A spouse shall be entitled to apply to the Court for a division of property —

• (a) on the grant of a decree of dissolution of a marriage or termination of cohabitation; or

• (b) on the grant of a decree of nullity of marriage; or

• (c) where a husband and wife have separated and there is no reasonable likelihood of reconciliation; or

• (d) where one spouse is endangering the property or seriously diminishing its value by gross mismanagement or by willful or reckless dissipation of property or earnings.

6 and subsection (3) provides that

"For the purposes of subsection (1), (a) and (b) of this section and section 14 the definition of spouse shall include a former spouse."

7 The Claimant is therefore entitled to make this application by virtue of Section 13 subsections (1) (a) and (3).

8 Time for Making the Application

9 Section 13 subsection 2 provides that:

"An application under subsection (1), (a), (b), or (c) shall be made within twelve months of the dissolution of a marriage, termination of cohabitation, annulment of marriage or separation or such longer period as the Court may allow after hearing the applicant." (emphasis added)

10 Both parties had petitioned the court for dissolution of their marriage and there was some initial uncertainty as to the effective date of the decree absolute which was eventually granted but it was confirmed from the court's records to have been the 3 ^rd of June, 2005. Therefore, the Claimant's application, having been filed on July 11, 2006, fell just outside of the twelve month period provided for by subsection 2 and she endeavoured to address that issue with the order sought in paragraph 2 of her Fixed Date Claim Form, namely an order that "'the time prescribed for the Claimant to seek orders under the said Act be extended to the date hereof."

11 There was a less than vigorous objection by the 1 ^st Defendant to the enlargement of time stating that there was no affidavit filed by the Claimant indicating a basis for the grant of an extension. However, from the wording of subsection 2 this court was of the view that oral submissions were permissible and after hearing from Dr. Barnett, the Applicant's Attorney-at-Law, the extension of time was granted. There was no objection from the 2 ^nd Defendant. Accordingly, the Application was held to be properly before the Court.

12 THE ISSUES

13 The first issue concerns the matrimonial home and whether it is subject to the application before the Court. The answer is to be found in the provisions of section 14 subsection (1) (b) and subsections (2) to (4) of the Act .

14 Subsection (1) (a) referring to sections 6 and 7, is of no relevance. By virtue of section 6, the Claimant would have been entitled to a one half share of the family home on the grant of a decree of dissolution of the marriage.

15 This Act came into effect on April 1, 2006 and the marriage was dissolved on June 3, 2005. Since there is no retroactive provision, the Claimant's claim for a share of property under the Act can therefore relate only to property other than the family home. (See section 14 (1) (b)).

16 Section 7 is equally inapplicable as it relates to the power of the Court to vary the equal share rule for division of the family home.

17 Assets Claimed for Division (other than the Family Home)

18 The assets identified by the Claimant as being subject to her claim are set out in paragraphs 13 to 16 of her supporting affidavit and are as follows:

• (a) Real Estate

• i) 11 James Avenue, Ocho Rios, in the parish of St. Ann — land purchased in 1996; building constructed in 1997 from which Boswell's Steel and Hardware is operated;

• ii) Content Gardens, Ocho Rios, St. Ann — house and land purchased in 1983/1984;

• iii) land at Marvins Park, White River, Ocho Rios, St. Ann, the purchase of which commenced in 1980 but to date has not been completed;

• iv) 4 Evelyn Street, Ocho Rios, St. Ann — land purchased in 2000 and house built thereon in 2003;

• v) 8 (corrected to 6) Evelyn Street, Ocho Rios, St. Ann — land and building purchased in 2003;

• vi) two lots of land with buildings thereon, situated at 23 and 25 Park Avenue, St. Ann's Bay, in the parish of St. Ann, purchased in 2005;

• vii) 84 Vista-Del-Mar, Drax Hall in the parish of St. Ann — house and land purchased in 1995;

• viii) land at 11 Harbour Street, St. Ann's Bay, in the parish of St. Ann, (date of alleged purchase not provided); [Lot 9 was also said to have been purchased but she makes no claim to a share in that lot].

• ix) First house constructed at 5 Bonham Park, Ocho Rios, St. Ann, on land purchased in 1978 — This house is no longer considered as the family home and at one tome was rented:

• x) fourteen acres of land at Rio Nuevo in the parish of St. Mary, purchased in 2006;

19 There is disagreement as to the ownership of properties situated at 9 and 11 Harbour Street and 84 Vista-Del-Mar. It seems that the Claimant is unable to provide any proof of ownership but she exhibits a letter dated July 10, 2001, addressed to the 1 ^st Defendant, which refers to certain construction on the property at Vista-Del-Mar, in support of her contention that he is the owner. However, no questions were asked of him in cross-examination by way of explanation of the letter which at the very least raised an inference of some proprietary interest so that at the end of the day, the court is left in a state of uncertainty as to what, if any, interest he has in that property and if he had an interest, when it was acquired.

• (b) Motor vehicles:

• 1. 1998 Isuzu Elf;

• 2. 1995 Toyota Rav 4;

• 3. 2001 Toyota Townace;

• 4. 2005 Mercedes Benz;

• 5. 1997 Toyota Corolla;

• 6. 1997 Leyland Truck;

• 7. 1991 Nissan Atlas;

• 8. One Isuzu NPR;

• 9. 2002 Mitsubishi Pajero;

• 10. 2000 Toyota Avalon;

• 11. 2001 Honda Civic;

• 12. 1990 Mitsubishi Canter;

• 13. 2006 Prado.

• (c) Rental Income

20 From Residential Property at:

• i) Content Gardens,

• ii) 23 Park Avenue,

• iii) 25 Park Avenue

21 From Commercial Property at:

• i) 4 Evelyn Street

• ii) 6 (8) Evelyn Street

• iii) 9 Harbour Street.

22 The Claimant then ended her supporting affidavit at paragraph 29 with a prayer that the Court will grant her

" one half of all assets consisting of lands owned, income from businesses owned, rental income from properties owned, moneys in accounts held in various financial institutions, all motor vehicles, moneys invested in several financial organizations houses owned"

23 APPLYING THE PROVISIONS OF THE ACT TO THE CLAIM

24 Section 12 (2) states that

"a spouse's share in property, shall, subject to section 9, be determined as at the date on which the spouses ceased to live together as man and wife or to cohabit, or if they have not so ceased, at the date of the application to the court."

25 Spouse in this section would be as defined in section 2 (1) which reads as follows:

• (a) a single woman who has cohabited with a single man as if she were in law his wife for a period of not less than five years

• (b) a single man who has cohabited with a single woman as if in law-he were her husband for a period of not less than five years immediately preceding the institution of proceedings under this Act or the termination of cohabitation, as the case may be."

26 Therefore, in the case of a husband and wife section 12(2)...