Ileen Oliphant Williams v Bernard Williams
| Jurisdiction | Jamaica |
| Judge | V. Harris J |
| Judgment Date | 25 May 2018 |
| Neutral Citation | [2018] JMSC Civ 77 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2009HCV04025 |
| Date | 25 May 2018 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. 2009HCV04025
Mr. Mikhail H. R. Williams instructed by Taylor, Deacon & James for the Claimant
Ms Tamiko Smith instructed by Frater, Ennis & Gordon for the Defendant
Matrimonial property — Family home acquired before the marriage by one party — Family home registered in the name of one party — Division of family home — Variation of the equal share rule — The Property (Rights of Spouses) Act sections 6, 7 and 14
Maintenance — Spousal maintenance — Whether threshold finding can be made — The Matrimonial Causes Act section 23 — The Maintenance Act sections 3(2), 4 and 14(4)
COR: V. Harris J
By way of her Fixed Date Claim Form (‘FDCF’) filed on the 31 st of July 2009, the claimant, Mrs. Ileen Oliphant Williams, is seeking the following relief:
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1. That Ileen Oliphant Williams be added as joint tenant of all that property known as Lot 13, 2 Retreat Avenue in the parish of St. Andrew registered at Volume 1018 Folio 110 (‘the Retreat Property’);
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2. That should Bernard Williams the Defendant fail or refuse to sign the Transfer, the Registrar of the Supreme Court be authorised to sign the relevant transfer of the property to the Claimant;
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3. That the Defendant pay maintenance of One Hundred and Twenty Thousand Dollars ($120,000.00) monthly to the Claimant; and
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4. Such other relief as may be just.
The parties to this claim are former spouses. They were married on the 9 th of August 1998 and divorced on the 21 st of April 2011. According to the petition 1 that was filed by the defendant Mr. Bernard Williams, the parties separated on the 15 th of November 2008. As would be observed from the relief being sought, Mrs. Oliphant Williams' claim is two-fold. Firstly, she is claiming an interest in the Retreat Property and secondly, she is seeking maintenance. For clarity, each will be addressed in turn.
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(1) The Retreat Property
Approximately four years prior to their marriage, Mr. Williams acquired the Retreat Property. His name was registered on the title on the 21 st of July 1994.
In essence, Mrs. Oliphant Williams alleges that when she married Mr. Williams there was a verbal agreement that she would have a legal interest in the Retreat Property. She further contends that during their marriage, he assured her that he would take steps to register her name on the title as a joint tenant. This was never done.
In reliance on this agreement, Mrs. Oliphant Williams claims that she expended approximately One Million Dollars ($1,000,000.00) to upgrade and maintain the said property. In support of this, she has provided some receipts totalling $154,633.70. As to the other receipts, Mrs. Oliphant Williams states that some were destroyed and she is unable to locate others.
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(2) Maintenance
Mrs. Oliphant Williams contends that it was Mr. Williams' usual practice to provide her with maintenance. She claims that he is obligated to pay a total of $120,000.00 monthly and has itemised her expenses.
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(1) The Retreat Property
In relation to the Retreat Property, Mr. Williams denies that there was ever an agreement between himself and his former wife, that she should have an interest. He contends that she has no legal or equitable interest in the Retreat Property and it was always made clear to her that it was and remains his intention to devise the said property to his children from a previous marriage. Further, he denies that he made any assurances to her that he intended to have her name registered on the title.
Mr. Williams also denies that Mrs. Oliphant Williams contributed $1,000,000.00 or any sum of money towards upgrading and maintaining the said property. He further contends that when she left the Retreat Property, which he refers to as the ‘matrimonial home’, on the 12 th of February 2009, she removed furniture valued at $1,500,000.00 as well as $90,000.00 in cash.
It is Mr. Williams' evidence that in 1992 he gave Mrs. Oliphant Williams $60,000.00 to make a down payment on a house in Portmore, St. Catherine. He states that she never purchased the house but retained the money.
Further he states that in 2004, after they agreed that the Retreat Property was to be left for his children, he provided her with $250,000.00 to be put towards the purchase of property in Coopers Hill, St. Andrew (‘the Coopers Hill Property’). Mr. Williams indicated that Mrs. Oliphant Williams wanted to build a house for herself and her son, Frederick Hibbert. Both their names (that of the claimant and her son) were registered on the title on the 14 th of October 2004.
Additionally, Mr. Williams states that in 2001 he spent more than $1,500,000.00 to build a house in Top Lister, St. Mary for Mrs. Oliphant Williams' mother.
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(2) Maintenance
Mr. Williams contends that he has no obligation to maintain Mrs. Oliphant Williams. He further asserts that the parties had an arrangement whereby she was permitted to operate her business at premises which he owned, and that she was not required to pay rent or any of the utility bills. The result, according to him, is that she kept 100% of the returns of the business and that on most occasions she earned more than he did.
Mr. Williams also states that he turned over a company (Major Distributors Limited) to Mrs. Oliphant Williams for her sole ownership and benefit. He states that she replaced this company with another company (T-Nahpilo Distribution Limited), which she operated at three locations.
After Mrs. Oliphant Williams left the matrimonial home in 2009, Mr. Williams states that she has had control of the various businesses and has not shared any of the returns with him. He also states that she has not accounted to him for the profits made.
By way of his affidavit filed the 18 th of January 2010, Mr. Williams has indicated that he is seeking the following relief:
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1. A Declaration that the Claimant is not entitled to have her name endorsed on Certificate of Title registered at Volume 1018 Folio 110 as an owner.
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2. A Declaration that the Claimant has no legal or equitable interest on the Certificate of Title [sic] registered at Volume 1018 Folio 110
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3. An Order that the Claimant render a true account of all Profit and Income made from the business entities listed herein for the period 2004 to 2009.
The first two orders sought by Mr. Williams are in essence that the court ought to refuse the relief sought by Mrs. Oliphant Williams in relation to the Retreat Property. The third is somewhat different. An order for an account ought to have complied with Part 41 of the Civil Procedure Rules (‘CPR’). In particular CPR 41.2(1) which states “where a … counterclaim is made for an account or requires the taking of an account, an application for directions relating to the taking of the account must be made at the case management conference or the first hearing.” There does not appear to be compliance with this rule.
In any event, Mrs. Oliphant Williams has disclosed the financial statements of T- Nahpilo Distributors Limited from 2004 to 2006 and Mr. Williams does not seem to be seriously pursuing this as no submissions were made in respect of the account, nor were any consequential orders sought.
I am grateful for counsel's assistance to the court and it should be known that all the submissions and authorities in this matter were considered whether they have been referred to or not.
Mrs. Oliphant Williams' FDCF does not state that it is being made under any enactment, as required by CPR 8.8(c). However, by virtue of the submissions the court understands that the claim in relation to the Retreat Property is being brought pursuant to the provisions of The Property Rights of Spouses Act (‘the PROSA’) and the maintenance claim is being made in accordance with The Maintenance Act. In fairness to learned counsel for Mrs. Oliphant Williams, it should be noted that he did not originally appear on her behalf and there have been a number of changes in representation.
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(1) The Retreat Property
Although there was no reference to the PROSA in Mrs. Oliphant Williams' FDCF, this court has taken the view that the claim can be properly treated as a division of property application pursuant to the PROSA. I accept the submission that has been made on behalf of Mrs. Oliphant Williams that there would be no need for an extension of time 2 since the claim was made within the 12 months of the parties' separation 3.
Mr. Williams conceded that during the course of their marriage, they lived at the Retreat Property as man and wife and he has referred to it as the “matrimonial
“family home” means the dwelling-house that is wholly owned by either or both of the spouses and used habitually or from time to time by the spouses as the only or principal family residence together with any land, buildings or improvements appurtenant to such dwelling-house and used wholly or mainly for the purposes of the household, but shall not include such a dwelling-house which is a gift to one spouse by a donor who intended that spouse alone to benefit; 5
Having determined that the Retreat Property is the family home, the relevant sections of the PROSA are sections 6 and 7. Section 6(1) is the equal share rule which states that spouses (which includes former spouses) are presumed to be entitled to one-half share of the family home (also referred to as the 50/50 presumption). As is common to most rules, there are exceptions. These exceptions are contained...
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