Gregory Oneil Gordon v Pauline Victoria Gordon

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 02 November 2012
• Neutral Citation: JM 2012 CA 97
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 125/2011
• Date: 02 November 2012

[2012] JMCA Civ 51

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT CIVIL APPEAL NO 125/2011

Between

Gregory Oneil Gordon

Appellant

and

Pauline Victoria Gordon

Respondent

Written submissions filed by Brown and Shaw for the appellant

Written submissions filed by Verleta V. Green for the respondent

MATRIMONIAL CAUSES - Dissolution of marriage - Petition - Custody and maintenance - Maintenance Act 2005 - Determination of interest in property - Property (Rights of Spouses) Act - Whether claim for maintenance, custody and division of property can be made in petition for divorce - CPR 2002, Rule 76 - Interpretation of CPR 2002, Rule 76.4 and 76.5

PROCEDURAL APPEAL

(Considered on paper pursuant to rule 2.4 of the Court of Appeal Rules 2002)

IN CHAMBERS

Brooks JA

1 On 16 July 2010, the appellant Mr Gregory Oneil Gordon filed a petition for the dissolution of his marriage. His estranged wife, the respondent Mrs Pauline Victoria Gordon, does not contest the petition. She is, however, desirous of having certain other issues settled as well, namely, the custody and maintenance of their daughter and the determination of their respective interests in specific real property and a business enterprise. On 14 February 2011, she filed a notice of application for court orders in respect of those issues.

2 When her application came on for hearing before Rattray J on 11 November 2011, counsel for Mr Gordon argued as a preliminary point, that it was improper, in proceedings for dissolution of marriage, to apply for an order for division of property. The learned judge ruled against the preliminary point but gave permission to appeal. Mr Gordon's appeal has come by way of a procedural appeal, pursuant to rule 2.4 of the Court of Appeal Rules 2002.

3 The essence of Mr Gordon's complaint is that issues relating to the division of property may be considered in the context of a petition for dissolution of marriage, only if it is one of the forms of relief included in the petition. He contends that if it is not included in the petition, it must be initiated by way of one of the other forms of originating process namely, a fixed date claim or an ordinary claim.

4 In support of this stance, learned counsel for Mr Gordon, Mrs Shaw, in her written submissions, cited rules 76.4(5) and 76.6(1) of the Civil Procedure Rules 2002 (the CPR). The former states:

‘ A petition for a decree of dissolution of marriage , for a decree of nullity of marriage or for a decree of presumption of death and dissolution of the marriage may include a claim for maintenance, custody, education of or access to children, division of property and any other relief relating to matters concerning the marriage, the union between the parties or any relevant children.’ (Emphasis supplied)

The latter rule states:

‘Where in any petition or fixed date claim form a part of the relief claimed is custody, maintenance, education of or access to children or division of property , such relief may be granted upon an application for court orders.’ (Emphasis supplied)

The interpretation learned counsel places on the latter provision is that it is only where the petition or fixed date claim form includes the relevant form of relief that that relief may be granted upon an application for court orders.

5 If these submissions are correct, and are taken to their logical conclusion, it would mean that only a petitioner who had included the relevant ‘other relief’ in his petition for dissolution of marriage, could seek orders in respect of that ‘other relief’. A respondent, who sought such relief, would instead, have been obliged to file separate originating process. The result would be cumbersome and could well cause delay in both the conclusion of the petition as well as the application for the other relief.

6 It is well established, however, that respondents frequently, by way of ordinary application for court orders, claim relief such as custody and maintenance of the relevant children of the marriage, when these have not been included in the petition. Admittedly that practice commenced under, the now repealed, section 25 of the Matrimonial Causes Act. The practice has not abated despite the repeal of section 25 by the Maintenance Act of 2005. Section 3 of the Maintenance Act allows maintenance issues to be considered alongside property issues. Section 3(2) states:

‘In any case where an application is made for the division of property under the Property (Rights of Spouses) Act, the Court hearing the proceedings under the Property (Rights of Spouses) Act may make a maintenance order in accordance with the provisions of this Act.’

Is there a difference in the approach when the issue is that of property division?

7 According to Mrs Shaw's submission, as I understand it, section 27 of the Matrimonial Causes Act makes the difference. That section prohibits the grant of a decree absolute unless the court considers the arrangements for the...