Bowes v Keith AlexanderTaylor

• Jurisdiction: Jamaica
• Judge: McDONALD-BISHOP, J
• Judgment Date: 19 January 2009
• Judgment citation (vLex): [2009] 1 JJC 1901
• Court: Supreme Court (Jamaica)
• Date: 19 January 2009

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO 2006/HCV05107

BETWEEN

MILLICENT BOWES

CLAIMANT

AND

KElTH ALEXANDER TAYLOR

DEFENDANT

IN CHAMBERS

Mr. Sean Clarke

Mr. Jermaine Spence Ms. Teri-Ann Lawson

Property Dispute - parties unmarried - claim for half-interest on basis of the "equal share rule "-whether a common law relationship existed between the parties - whether claimant a "spouse" for the purposes of the rule - factors to be considered - whether property is the "family home"- The Property (Rights of Spouses) Act, ss 2(1), 6(1) & 13

REAL PROPERTY - Property dispute - Parties unmarried - Claim for half-interest on basis of the "equal share rule" - Whether a common law relationship existed between the parties - Whether claimant a "spouse" for the purposes of the rule - Factors to be considered - Whether property is the "family home" - Property (Rights of Spouses) Act, sections 2(1), 6(1) and 13

McDONALD-BISHOP, J

1 Miss Millicent Bowes, the claimant, contends that she is the common law wife of Mr. Keith Alexander Taylor, the defendant, having cohabited with him at several locations in Manchester from May, 1985 until October, 2006.

2 By Fixed Date Claim Form filed on December 28, 2006, she commenced proceedings under the Property (Rights of Spouses) Act (the Act) for court orders in the following terms:

• "1. A Declaration that the Defendant and the Claimant are equally beneficially entitled to the FAMILY HOME situated at Hopeton in the parish of Manchester.

• 2. That the FAMILY HOME be valued and the Defendant pay to the Claimant a sum equal to 50% of the net value of the said property.

• 3. That the FAMILY HOME be valued and sold on the open market and the net proceeds of sale be divided and apportioned to the parties equally.

• 4. Such further and other Orders as the Court deems fit."

3 The defendant, in his response, has challenged the claim on the grounds that the claimant is not and never was at any time his common law wife and therefore not his spouse within the meaning of the Act so as to entitle her to a half - share interest in the property in question. He contends further that the claimant has made no contribution to the acquisition, maintenance or improvement of the said property and so she is not entitled to any interest in it whatsoever.

CLAIMANT'S CASE

4 The claimant, in seeking to establish her claim for half share interest in what she claims to be the family home, has relied on two affidavits: her affidavit filed on December 28, 2006 in support of the Fixed Date Claim Form and that of Gladys Givans filed on June 25, 2007. Although liberty was given at first hearing to the claimant to file further affidavits in response to the defendant's affidavits, no other affidavit was put before me and it was expressly stated by her counsel at the commencement of the hearing that the claimant would rest her case on only those two affidavits. The claimant and her witness were not cross- examined by the defence. The claimant's case is therefore embodied within the confines of these two affidavits.

5 The evidence as advanced by the claimant in her brief affidavit is summarized as follows. She is a housewife and the common law wife of the defendant having started cohabiting with him in May, 1985. At the time of their cohabitation, the defendant was a farmer and she was a housewife. They lived together at Balvenie Heights and Kendal Road in Mandeville, Manchester prior to moving into the house at Hopeton which is the subject matter of the claim.

6 It was in 1993 that the defendant bought a parcel of land at Hopeton on which they built the family home. They started cohabiting in that house in 1994. In 2003, they built a flat on the said land at Hopeton. They contributed equally to the construction of the family home from income derived from their respective occupations but no account was kept by them as to their respective contributions. The defendant presently resides in the family home and she lives elsewhere as she was forced to leave the family home on October 1, 2006 because of verbal abuse from the defendant.

7 The affidavit evidence of the claimant's witness, Gladys Givans, is just as brief as the claimant's and can also be summarized without much difficulty. It is the evidence of Miss Givans that she knows both the claimant and the defendant. She has a very good relationship with both of them. She contends that "to the best of her knowledge, information and belief," the claimant was the common law wife of the defendant. She used to visit both parties occasionally and would stay overnight in the house at Hopeton in which the parties lived for about 13 years. "To the best of her knowledge, information and belief," the defendant only had one common law wife for the past 21 years who is the claimant.

THE DEFENDANT'S CASE

8 In refuting the Claimant's case, the defendant relies on his two affidavits: one filed February 8, 2007 and the other filed July 31, 2007. He also relies on the affidavit of Carol Wilson filed on July 31, 2007 and that of Kleon Taylor filed on November 9, 2007. The defendant's evidence as embodied in these affidavits proves to be more comprehensive than that of the claimant and her witness. For the sake of brevity, I do not propose to give every minute detail of that which is asserted by him but every effort will be made to highlight those aspects that are considered most germane. His response to the claimant's case will now be examined.

9 The defendant is a farmer and business man and a divorcee. The claimant was never a housewife to him and he denies the entire evidence contained in her affidavit. All her assertions concerning them living together as man and wife at the places she mentioned are denied.

10 He and his former wife employed the claimant as a live-in household helper in or about May, 1985. At that time, the claimant would go home on weekends before his ex-wife left the matrimonial home at the end of 1985. In 1985, the claimant received a salary of $50.00 per week in her capacity as a household helper. This sum was increased over the years so that up to September, 2006, she was paid $3000.00 weekly with bonuses from time to time.

11 When he first employed the claimant, he was living at Balvenie Heights and then he relocated to Kendal Road in or around 1986. In 1993, he purchased the parcel of land at Hopeton and built a house on it for himself and his children (this is the house that the claimant is claiming to be the family home). He moved to that house in 1994 and the claimant was given a room in that house as a household helper. In 2004, he built a flat on the said property. He built these premises solely from his own resources and with assistance from the bank. He did so without any help from the claimant. The claimant has made no contribution to this house and she did not assist in furnishing it. At no point in time did he intend for the claimant to have an interest in his property. He has exhibited 117 receipts evidencing his expenditure on the construction of the house and to prove that all the expenditure was done by him.

12 In 1987, following his wife's departure from the matrimonial home in 1985, he 'succumbed to temptation' and started a sexual relationship with the claimant that lasted until 2004. During all this time, she was in his employment as a paid household helper and her status never changed.

13 Since 1987, he has had a serious ongoing relationship with Miss Wilson (his witness) that produced a child born in 1994. While the claimant lived in his household, Miss Wilson did everything for him as a wife except living in his house. She would however visit with his child who would spend weekends and holidays with him. He would eat and sleep by Miss Wilson's house from time to time. He was treated as a son-in-law by her mother. They would also go to public functions together and go out generally in public as man and wife. They also had bank accounts in their joint names. This relationship with Miss Wilson was opened and public during the time the claimant contends that they cohabited together. He now lives with Miss Wilson since 2006. It is Miss Wilson whom he intends to marry and he had indicated that to the claimant on more than one occasion.

14 The claimant advised him in 1994 that she had a boyfriend (George) in the United States of America (USA) from around 1980 and she asked him for his help to obtain a visa to go visit him. He assisted her in getting the visa and he would pay her plane fare from time to time for her to go to the USA to see George. In 2005, he told the claimant he would stop paying her plane fare for her to visit her boyfriend oversees. He is aware that up to September, 2006, that boyfriend had wired money to the claimant.

15 The claimant contributed nothing to household expenses and on the rare occasions that she might have expended money on groceries or other household items when the money he gave her to do so might have been insufficient, he had to refund her immediately.

16 They never shared financial resources. However, after the divorce, he placed the claimant's name on two accounts- a savings account and an investment account. He did this in an effort to safeguard the accounts, in the event of his death, for the benefit of his children who were very young at the time. This was done on the advice of his bank manager and was strictly as a matter of convenience. The claimant had no authority to sign in relation to the accounts as his signature alone was necessary and neither did she have the authority to operate any of his accounts. She made no deposits to his account because she was not authorized to do so. She would go to the bank occasionally on his behalf as bearer to collect money and to pay bills. He would always give her a withdrawal slip signed by him with a cover letter...