Gerald Belnavis v Laverne Belnavis

• Jurisdiction: Jamaica
• Judge: Morrison, J
• Judgment Date: 27 March 2013
• Neutral Citation: [2013] JMSC Civ 39
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2010 HCV 06298
• Date: 27 March 2013

[2013] JMSC Civ. 39

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

Coram:

Morrison, J

CLAIM NO. 2010 HCV 06298

Between

Gerald Belnavis

Claimant

and

Laverne Belnavis

Defendant

Ms. Tameka Jordan for Claimant.

Mr. Gordon Steer instructed by Chambers Bunny and Steer for Defendant.

HUSBAND AND WIFE — PROPERTY (RIGHTS OF SPOUSE) ACT — WHETHER HOME FAMILY HOME — WHETHER CLAIMANT ENTITLED TO EQUAL SHARE IN FAMILY HOME — PARTITION ACT — WHETHER APPLICABLE

1 The saying that ‘marriage is grounds for divorce’, the provenance of which is unknown, reflects a type of cynicism that would have made Samuel Johnson 18 ^th Century English lexicographer, writer, critic and conversationalist, blush in admiration of its cynicism. After all, it was Johnson who, when told about a man who, shortly after being divorced and who decided to remarry remarked that it was the triumph of hope over experience. Unfortunately, this negative undertow continues to manifest itself and threaten to upheave one of the very institutional edifices of a stable society.

2 In the case at bar the parties were married on the 24 ^th November 1996. The union produced one child, Leya Belnavis, who was born on the 22 ^nd day of September 1997.

3 However, the hallowed hymeneal bond was severed as on 3 ^rd September 2010, the court granted to the claimant a Decree Absolute.

4 Following closely on the heels of the dissolution of their union, the claimant, by way of a Fixed Date Claim Form, filed on 17 ^th October, 2010, sought the following orders:-

• (a) A declaration that both parties are entitled to equal shares of property at 3 Hall Crescent, Kingston 8, St. Andrew.

• (b) That the said property be appraised, sold and the proceeds of sale divided equally between the parties pursuant to section 3 of the Partitions Act; and

• (c) That he be credited half of the mortgage paid by him from the date of separation until the order is granted.

SUBMISSIONS BY THE CLAIMANT

5 The cast of the submissions in argumentation resolves into asking and answering four questions:-

1

Whether or not 3 Hall Crescent was the family the family as defined by The Property (Rights of Spouses) Act? 2. Whether or not its sale is to be deferred? 3. Whether or not the claimant can unilaterally sever the joint tenancy and request a sale of the said property? 4. Whether or not the claimant is to be credited for his half of his mortgage payments?

6 The Claimant answered all the above issues in the affirmative. A number of case law authorities in support were supplied, viz:-

• a) Narine Lewis v Anthony Lewis, HCV 035544 of 2007

• b) Aubrey Forrest v Dorothy Forrest (1995) 32 JLR 128

• c) Gordon v Gordon 26 JLR 359

• d) Byall v Byall (1942) 3 DLR 594

• e) Hawksley v May and Others (1955) 3 All ER 353

• f) Re Draper's Conveyance; Nihan v Porter and Another (1967) 3 All ER 853

• g) Leake v Bruzzi (1974) 2 All ER 1196

• h) Burgess v Rawnesley (1974) 3 All ER 142

• i) Suttill v Graham (1977) 3 All ER 1117

• j) Dennis v McDonald (1982) 1 All ER 590

• k) Martin v Martin 1 NZLR 97

• l) Brenda Byford v David Butler (2003) EWHC 1267 (Ch)

SUBMISSIONS BY THE DEFENDANT

7 With economy of effort the defendant presents five issues for resolution. They are:-

• i) Whether the property is family home

• ii) Whether the claimant is entitled to 50% interest in the property

• iii) Whether in the circumstances section 3 of the Partition Act entitles the claimant to seek an order for sale by the property

• iv) Whether the claimant is entitled to a refund of one half of the amount he contributed towards the mortgage payments.

8 The defendant has answered all the issues which she has raised in the negative. The supplied list of authorities include:-

• a) Kimber v Kimber [2000] 1 FLR

• (b) MInott v Minott [1991] 2 JLR, 466

• (c) Alva Melford Heron-Muir v. Maureen Veronica Heron-Muir [2004 FD 00144]

• (d) Dorothy Boswell v. Kenneth Boswell and Teino Bosell [2006 HCV02453]

• (e) Millicent Bowes v. Keith Taylor [2006 HCV 05107]

• (f) Paula Ann Sterling v. Wayne Sterling [2007 HCV 00069]

Still, I have only to say I will not submit regard to all the cited cases. However, where appropriate, I will attempt to mine the relevant principles and then apply them to the relevant facts.

9 As I see them the issues for the Courts determination are:-

1

When were the parties separated? 2. Whether the Claimant made any contribution towards the acquisition of No. 3 Hall Crescent; 3. Whether No. 3 Hall Crescent is in law to be regarded as the family home; 4. If so regarded, what are the parties respective shares in it; and 5. Whether the Partitions Act is of any applicability to the circumstances of this case.

10 As will be gleaned from the posed questions the factual basis of the claim and its rebuttal are pivotal to its determination.

The Evidence

11 In support of his claim, Mr. Belnavis relied on two affidavits the first of which was filed on October 10, 2012 and the other was filed on September 14, 2011.

12 The defendant did not sit by ‘like patience on a monument smiling at grief.’ She activated her response by way of the filing of an Affidavit dated June 10, 2011 and later another filed on December 2, 2011. Interestingly, the defendant invited this Court to say ‘should the Claimant b e given an interest in the house, that the sale be postponed until Leya attains the age of twenty-three years or she sooner starts to work and that a sum of $8,000,000.00 be deducted from the proceeds of sale of the house towards her credit.’

Gerald Belnavis

13 This Claimant who now resides in the United States of America depones that it was the defendant who had identified the subject property of 3 Hall Crescent, Kingston 8, St. Andrew and that on being taken to see it, ‘We decided to purchase the family home.’ Accordingly, they both provided the funds for the down-payment. He secured a loan from Jamaica National Building Society (JNBS) for $3,200,000.000 and together they secured $1,000,000.000 each from the National Housing Trust (NHT). Both sums of money, he avers, were used to pay the balance of the purchase price.

14 There was apparent conjugal congress, he contends, until November 2004 when the parties separated. However, the Claimant recanted this date of separation. This came on his being cross-examined. He asserts that they had in fact separated in the year 2008. The difference in the dates of separation came about, he explained, and which the court accepts, as a result of a misconception on his part of the technical meaning of the forensic word, “separation”. During the period of their separation the parties experienced communication problems so much so that conjugal felicity ceased. Thereafter, the modus vivendi of separate households was established.

15 In the period prior to their separation this deponent maintains that he alone paid the monthly mortgage on the family home, that is to say, $50,000.00 to JNBS and $24,000.00 to the NHT. In the course of those happier days he paid all the school fees of Leya, contributed towards food, utilities and other household expenses and undertook several renovative efforts to the family home at his expense.

16 Included in these achievements were the painting and tiling of the house on the occasion of their moving in; repairs to the roof and remodelling of the bedroom. The total expenditure borne by him amounted to $680,000.00.

17 Indeed, says he, after their separation, he continued to pay $62,000.00 towards the mortgage for over (6) years ‘until recently’ when his business operations folded. This was in 2009. Since that time he has been languishing in the jobless market place. Even so, as he continued to pay the mortgage installments for the family home, the defendant as between them, continued to enjoy the singular pleasure of their joint four bedroom acquisition.

Laverne Belnavis

18 Having read the affidavit of her erstwhile husband the defendant sought to establish some distance between the Claimant's contentions and her own declarations. She rather defiantly asserts that, ‘I saw the property and insisted that I wanted to purchase somewhere of my own.’ Formerly, they had been living in rented premises at Manor Park and were asked to quit that arrangement. She had owned property at Oakland Court St. Andrew.

19 She had owned property at Oakland Court St. Andrew which she sold in June 2003 and from which she obtained the sum of $2,612,216.00 She attached documentary proof in support. An amount representing $1,442,250.00 which was deducted from the proceeds of sale of the Oakland Court apartment was used to pay down as the deposit on 3 Hall Crescent. She categorically refuted the Claimant's assertion that it was through their joint efforts that the down payment was realized.

20 ‘It is therefore not true to say that he contributed any money towards the deposit,’ she protests. Rather, she says, the deposit sum was the result of her sole enterprise and industry. However, she admitted that they both borrowed the mortgage sums, adverted to from JNBS and the NHT and that in so doing and taking the deposit into consideration, there emerged a shortfall of $2,754,050.00, according to a Statement of Account dated September 15, 2003. Again, she attached documentary proof in support.

21 To address that shortfall she recruited and got the assistance of a loan from her uncle in tandem with the balance of the proceeds of sale of the Oakland apartment. She was able to meet the outstanding sum. No proof for that avuncular transaction was forthcoming. Having thus fulfilled their obligations pursuant to the purchase of 3 Hall Crescent, they were both put in possession in December 2003 but had separated, ‘one year prior to possession’ with the Claimant occupying one bedroom and she another.

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