Margaret Gardner v Rivington Gardner

• Jurisdiction: Jamaica
• Judge: Edwards J
• Judgment Date: 07 May 2012
• Neutral Citation: [2012] JMSC Civ 54
• Docket Number: CLAIM NO. 2010 HCV 02594
• Court: Supreme Court (Jamaica)
• Date: 07 May 2012

Between

Margaret Gardner

Claimant

and

Rivington Gardner

Defendant

[2012] JMSC Civ 54

CLAIM NO. 2010 HCV 02594

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

MATRIMONIAL PROPERTY — PARTIES SEPARATED — DIVISION OF MATRIMONIAL PROPERTY — FAMILY HOME — VARIATION OF EQUAL SHARE RULE — SECTION 6, 7, 13, 14 AND 15 OF THE PROPERTY (RIGHTS OF SPOUSES) ACT.

FINANCIAL PROVISION — MAINTENANCE OF WIFE — MAINTENANCE OF CHILD OF THE FAMILY — CUSTODY — SECTIONS 10, 20, 21 AND 23 MATRIMONIAL CAUSES ACT — SECTIONS 8, 5, 9 AND 14 OF THE MAINTENANCE ACT.

Mrs. Michele Champagnie for the Claimant.

Ms. Marjorie Shaw and Ms. Karlene McFarlane Instructed by Dianne Edwards for the Defendant.

Edwards J (In Chambers)

THE CLAIM

1 The claimant, Margaret Gardner, company director of 19 Hill Road, Norbrook Heights in the parish of St. Andrew claimed against the Defendant, Rivington Gardner, Architect of 7 Belmont Road, Kingston 5, who is her estranged husband, several declarations and orders. The first of these was an order sought and received pursuant to section 10 of the Matrimonial Causes Act; that pending the final determination of this matter and/or the sale of any interest she may have in the matrimonial home, whichever is later, her and her children be permitted to continue to reside in the matrimonial home. They continue to do so. The husband resides in rented premises elsewhere.

2 She also sought a declaration that the property known as 19 Hill Road, Norbrook Heights in the parish of St. Andrew and which is registered at Volume 1385 Folio 123 of the Registered Book Of Titles was the ‘family home’ within the meaning of the Property (Rights of Spouses) Act. There was also a prayer for a declaration that she was entitled to a one half interest in the said property pursuant to the Property (Rights of Spouses) Act generally including sections 6 and sections 11 - 16 and/or alternatively pursuant to the Matrimonial Causes Act generally including section 23 and/or alternatively pursuant to the Maintenance Act generally including sections 4-6 and 11-16 or to such other interest as this Honourable Court deems just.

3 Other orders sought by the claimant included but was not limited to:

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An order regarding property rights and/or for division of property and/or alteration of property interests pursuant to the Property (Rights of Spouses) Act, including sections 11,12,13,14,15,17 and 23 including an order that: a. the Defendant purchase the Claimant's shares in Fi Wi Brand'ish Limited or alternatively an order that Fi Wi Brand'ish Limited be sold and the net proceeds divided equally between the Claimant and the Defendant; b. the mortgage taken over the Claimant's mother's house at 4 Jacks Hill Close, Kingston 6 registered at Volume 1112 Folio 650 on behalf of Fi Wi Brand'ish limited be repaid by the Defendant; c. It be determined what interest the Claimant has in all bank accounts, investments, properties and/or assets owned jointly with the Defendant and/or held in their joint names including but not limited to: i. land in St. Thomas part of Marbella Estates; ii. artwork, household furniture, paintings, and other household items; d. this Honourable Court determine what interest the Claimant has in bank accounts, investments, properties and/or assets registered or held in the name of the Defendant and/or in the name of the Defendant and others or alternatively not held in the Defendant's name but held in the name of another for his benefit including but not limited to:- i. Bank accounts and/or investments at First Global Bank; ii. as an alternative claim, if it is not the subject of an order awarding the Claimant a share pursuant to section 6 of the Property (Rights of Spouses) Act, the property known as 19 Hill Road, Norbrook Heights in the parish of St. Andrew registered at Volume 1385 Folio 123;

4 The claimant also sought orders for custody and access for the child of the marriage as well as orders pursuant to the Matrimonial Causes Act generally including section 23 and in accordance with the provisions of the Maintenance Act generally including sections 3,8,9,11,12,14,15,16. In the alternative she also sought an order pursuant to the said sections of the Maintenance Act, for maintenance of the child of the marriage. The maintenance orders sought included but were not limited to orders for the defendant to:

• a) provide suitable accommodation and/or the cost of same for the child to reside with the claimant.

• b) pay for the utilities in respect of the home where the child resides with the Claimant and in particular, the light, water and telephone & cable bills in respect of the said home;

• c) pay the educational expenses including extra curricular activities in respect of the child;

• d) pay the medical, dental and optical expenses;

• e) pay the salary of the employees at the home where the child resides.

• f) pay the sum of $120,000.00 per month to be paid on the 1 ^st day of each month.

5 The claimant sought further orders for maintenance for herself including but not limited to a monthly payment of $150,0000.00 the provision of suitable accommodation for herself, payment of utilities and rates, payment of salary for household staff, payment of medical, dental and optical expenses and the payment of grocery bills, fish food and dog food. There was also a claim for a lump sum settlement. An interim consent order for maintenance was effected.

6 The defendant, not to be outdone, also applied for orders in the following terms:

• (1) An Order that the interim consent order for maintenance on Amended Notice of Application for Court Orders granted herein on the 5 ^th day of July 2010 be varied.

• (2) A Declaration that the Claimant has no legal and or beneficial interest property at 19 Hill Road, Norbrook Heights in the parish of Saint Andrew registered at Volume 1385 Folio 123.

• (3) An Order that the Claimant give full disclosure of her assets owned or held by her immediately prior to the marriage and subsequently and namely for the period at the time September 2005 to December 01, 2010 including butnot limited to:

  • a) Real estate holdings to include the civic address and volume and folio number where there is a title;

  • b) The account number, bank and branch or company where bank accounts and investments are held either in her name solely or with others or in the name of someone else holding for her benefit and the balance or value of each one as at the date of disclosure.

  • c) Any business or partnership in which she has an interest and the estimated value of any such interest.

  • d) Any signification collection such as antiques, artwork or jewelry and the estimated value of same.

  • e) Any personal property such as motor vehicles and furniture/furnishings and the estimated value of same.

  • f) Any monies owned to her

  • g) Any life insurance policies and the cash value (if applicable) of each policy.

  • h) Her current income.

MATTERS NOT IN DISPUTE

1. The Claim for Marbella

7 There is no issue taken with the fact that land in St. Thomas part of Marbella Estates was purchased in the name of both parties. The claimant made no financial or other contribution to the purchase of this property. In reality, the actual negotiations for its purchase began before the parties were married. However, there is evidence that at the time of purchase there was an agreement that both would share in the legal and beneficial interest equally. The defendant in his affidavits, during trial and in counsel's submissions admitted to this fact. Indeed after the land was purchased the parties formed the intention that it would be used for the sole purpose of building a family home for the parties to reside together. There is no dispute that both parties are entitled to one half share in the legal and beneficial interest in that property.

2. The Art Work

8 The claimant admittedly owned no art work prior to her marriage to the defendant. The defendant owned several pieces of art work acquired before the marriage. Several other pieces were given to the claimant by the defendant as gifts during the marriage. A few pieces were brought into the home by the claimant that belonged to her mother.

9 During the course of the trial it was conceded by the claimant that her only interest was in those pieces of art work which belonged to her mother and those which were purchased for her or were gifts made to her. There was no dispute on the defendant's side as to the items laid claim to by the claimant in those categories. A list of the said art work was provided to the court and agreed by both sides. The settled list is the subject of a separate agreement between the parties.

3. The Household Furniture

10 The claimant made a claim for a share in the household furniture, specifically those acquired from the furniture store known as Bali, during the period she was manager there but paid for by the defendant. Her claim was that she chose the pieces and the purchases were facilitated by her managerial discounts. During the trial a concession was made by the defendant who agreed that the claimant could have all the furniture in the matrimonial home with exception of a few identified items, a list of which was to be drawn up and agreed by the parties.

THE APPLICABLE STATUTORY PROVISIONS

11 There were 14 affidavits relied on in this matter. The claimant called one witness and all the parties were cross-examined. The issues to be determined and the questions of law to be considered all surround the consideration and application of the relevant provisions in three separate statutes. These were:

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) The Property (Rights of Spouses) Act 2) The Maintenance Act 2005 3) The Matrimonial Causes Act

MATTERS IN DISPUTE

12 The Claimant applied for division of property under the Property (Rights of Spouses) Act, hereinafter referred...