Cleveland Fritz Herbert Dilworth v Gillian Merjean Dilworth

• Jurisdiction: Jamaica
• Judge: C. Barnaby J
• Judgment Date: 18 December 2020
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2016 M 01948
• Date: 18 December 2020

[2020] JMSC Civ 247

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2016 M 01948

Between

Cleveland Fritz Herbert Dilworth

Petitioner/Respondent

and

Gillian Merjean Dilworth

Respondent/Applicant

Miss Nesta-Claire Hunter instructed by Ernest A. Smith and Co., Attorneys-at-Law for the Respondent/Applicant.

Miss Rachael S. Dibbs, Attorney-at-Law for the Petitioner/Respondent.

Matrimonial Property — Property Rights of Spouses Act (PROSA) — In limine objection — Petition for the Dissolution of Marriage proceeded in default to a grant of Decree Absolute — Notice of Application for Court Orders for division of matrimonial property filed while divorce claim subsisted but not determined before the grant of Decrees Nisi and Absolute — Whether res judicata applies — Whether claim for division of matrimonial property must be made by Fixed Date Claim Form.

IN CHAMBERS

C. Barnaby J, (AG)

1 On the 10 ^th December 2020 I heard arguments on a in limine objection raised by the Petitioner/Respondent. It concerned the propriety of the Respondent/Applicant making a claim for the division of matrimonial property under the Property Rights of Spouses Act (PROSA) by way of notice of application for court orders.

2 By Acknowledgement of Service in Matrimonial Proceedings form filed on the 14 ^th February 2017, the Applicant indicated her receipt on the 18 ^th January 2017, of the Amended Husband's Petition for Dissolution of Marriage filed on 11 ^th August 2016 (the Petition). She did nothing thereafter, and having failed to file a defence or answer to the Petition within the time limited by the Civil Procedure Rules 2002, the claim proceeded in default. The claim is numbered 2016 M 01948.

3 On 16 ^th October 2018, almost two (2) years after being served with the Petition, the Applicant filed a Notice of Application for Court Orders for Division of Matrimonial Property (the “NOACO”) together with an Affidavit of Gillian Merjean Dilworth sworn on 21 ^st April 2018. It was fixed for hearing on the 9 ^th March 2020.

4 Five (5) days after the filing of the NOACO, but before the date for its hearing, the Petitioner/Respondent obtained a Decree Nisi on the 14 ^th March 2018. A Decree Absolute was granted on 6 ^th February 2019.

5 It was Ms. Dibbs' submission, with which I do not agree, that the claim for division of matrimonial property ought to have commenced by way of a Fixed Date Claim Form. Among other things, she seeks to ground her contention on the doctrine of res judicata; and that the PROSA requires that a claim thereunder be so commenced. Without any intention to disregard Counsel's industry in the presentation of her various arguments, I am of the view that the objection can be resolved by reference to the two grounds which I have specifically mentioned and accordingly, I proceed in that manner.

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