Smith (Astley) v Carmen Bailey-Smith
| Jurisdiction | Jamaica |
| Judge | SYKES J |
| Judgment Date | 10 February 2006 |
| Judgment citation (vLex) | [2006] 2 JJC 1402 |
| Court | Supreme Court (Jamaica) |
| Date | 10 February 2006 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
MATRIMONIAL PROPERTY - Division
1. Mr. Astley Smith was a Corporal in the Jamaica Constabulary Force. He was married to Mrs. Carmen Bailey-Smith. In 1983, the couple bought land located at lot 897 part of the Albion Estate in the parish of St. Thomas and registered at Volume 1055 Folio 803 of the Register Book of Titles, Both names were registered on the title as joint tenants. The land was purchased by Mr. Smith alone, using insurance moneys he received and a loan from National Commercial Bank. Mrs. Bailey-Smith did not contribute to the acquisition of the land, They separated in September 1998 and finally divorced. Mr. Smith left the house voluntarily. Since the separation, Mrs. Bailey-Smith has been the sole occupier of the house.
The mortgages
2. It is agreed that three sums of money were borrowed, from the National Housing Trust (NHT), using the land as security. The first was $264,000. The second was $260,405.14 and the third was $150,000. All three mortgages were used to build a house.
3. Based on the evidence before me the first two sums were borrowed solely by Mr. Smith. His wife was not a co-mortgagor and there is no evidence that she agreed to contribute to the repayment of the mortgage.
4. The third sum was borrowed either by Mrs. Bailey-Smith alone or together with her husband. Mrs. Bailey-Smith alleges that she alone borrowed this sum and had repaid most of it when her husband said he would pay the balance. Mr. Smith on the other hand says he alone borrowed this sum and was solely responsible for repaying the loan.
5. It is important to say how this third sum was borrowed. It is common ground that Mrs. Bailey-Smith was unemployed at all material times. This meant that she was not eligible to borrow any money from the NHT. Mr. Smith agreed to pay her "contributions" to the NHT so that she could borrow either solely or along with him the $150,000. He paid her "contributions" and she was registered with the NHT as a self employed person. This was how the couple were able to borrow this additional sum.
6. I should note as well that Mrs. Bailey-Smith's name was placed on the title from 1983. The first mortgage was borrowed ten years later in 1993 and the second and third in 1997. Mrs. Smith for her depart denies knowledge of the additional loan of $260,405.14.
The issues
7. Mr. Smith is claiming a fifty percent share in the house. His wife is also claiming fifty percent. The parties have sensible agreed on a valuation of the property. That value is $2,743,500, This means that each party is entitled to $1,371,750.
8. The point at issue is whether the mortgage payments made by Mr. Smith from the inception of the mortgages to date should be deducted from Mrs. Bailey-Smith's half share or should he be credited with the sums he paid since the parties separated in September 1998.
Findings of fact
9. There was no cross-examination on the affidavits but I am still able to make certain findings of fact based upon the undisputed evidence. The first is that Mrs. Bailey-Smith was unemployed for all material times. The necessary conclusion from this is that at no time was she able to contribute to the acquisition of the land and neither was she able to contribute to the repayment of the loans. There is no evidence before me that at the...
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