Philomena La Qua Petitioner v Justin La Qua Respondent [ECSC]
| Jurisdiction | Grenada |
| Judge | Mohammed, J |
| Judgment Date | 17 October 2013 |
| Judgment citation (vLex) | [2013] ECSC J1017-3 |
| Date | 17 October 2013 |
| Court | High Court (Grenada) |
| Docket Number | CLAIM NO. GDAHMT 2010/0006 |
IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
HIGH COURT OF JUSTICE (DIVORCE)
CLAIM NO. GDAHMT 2010/0006
Mohammed, J.: "Divorce creates many problems. One question always arises. It concerns how the property of the husband and wife should be divided and whether one of them should continue to support the other. Stated in the most general terms, the answer is obvious. Everyone would accept that the outcome on these matters, whether by agreement or court order should be fair. More realistically, the outcome ought to be as fair as is possible in all the circumstances. But everyone's life is different. Features which are important when assessing fairness differs in each case, and, sometimes, different minds can reach different conclusions on what fairness requires. Then fairness, like beauty, lies in the eyes of the beholder"1.
La Qua is a household name in Grenada because of the La Qua Bros Crematorium (Grenada) Limited ("the Crematorium") and the La Qua Burial Society (lithe Burial Society"). Generally, there are two features which are common in funerals, the lauding of the deceased's noteworthy accomplishments and the preparation of the deceased's spirit for the afterlife. In some ways the instant application before the Court bears some striking resemblances to the events at a funeral. Each party has lauded his/her own contributions during the marriage and it is left to the Court to divide the matrimonial assets as each prepare for life after the marriage.
The Wife is seeking one-half share and interest of all the real property which she listed in the instant application, a lump sum payment, an interest in the Crematorium, the transfer of three of the Husband's nine motor vehicles, her costs and any other relief.
The Husband is of the view that the Wife is not entitled to one-half interest of the matrimonial assets since she was never a partner in the marriage. In his view, she was an absentee wife. He does not share the view that the assets of the Crematorium form part of the matrimonial assets and he vehemently denies that he has failed to disclosed all his assets and instead insists that the accounts which he did not voluntarily disclose were joint accounts with third parties who did not give him permission to disclose.
Before the instant application was ventilated, the parties had arrived at a mediation agreement whereby the Husband agreed to and did pay to the Wife the sum of $260,000.00 and transferred certain properties valued at $1,212,300.00. The total value was $1,472,300.00. Although the mediation agreement was set aside for
reasons irrelevant to the instant application, both parties acknowledged that the aforesaid sum must be taken into account in any award which the Court makes.At the trial, apart from the Wife and the Husband the only other person who gave evidence was Trish Bethany, who was called by the Wife. An affidavit for the Wife's mother Rosanna Neckles was filed on behalf of the Wife. She appeared but was not called to be cross-examined. In the case of the Husband, although he filed affidavits for Rochelle Simone Theresa Johnson, a daughter of the Husband, Sarah Mandley-Charles, an employee of the Crematorium and the Husband's brother, Thomas La Qua, none of them were called to be cross-examined, with the Husband not relying on their affidavits.
At the end of the trial both parties called upon the Court, for various reasons, to draw negative conclusions by each other's actions for failing to rely on the said affidavits and by extension not to call the deponents to be subjected to crossexamination. The tragedy of matrimonial proceedings is invariably the persons who are best placed to be witnesses are either close family members or friends of the parties. By giving evidence in matrimonial proceedings they are placed in a very unpleasant situation since they are forced to choose sides. In this matter it was no different. I am therefore not minded to draw any negative conclusion by the failure of Rosanna Neckles, Rochelle Simone Theresa Johnson, Sarah Mandley-Charles and Thomas La Qua to be called for cross-examination since these persons were either family members or a close family friend and I do not wish to impose the burden of my findings on the issues before me between the Husband and Wife on any on them. The affidavits filed on their behalf were not considered as part of the evidence in the instant application.
The issues arising from the instant application for determination are:
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(a) What are the matrimonial assets arising from the marriage?
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(b) Does the Husband's share in the Crematolium form part of the matrimonial assets?
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(c) What factors must the court consider in assessing the evidence?
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(d) Has the Wife proven that she is entitled to one-half share of the matrimonial assets?
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(e) Should the Husband be ordered to pay the balance of the Wife's credit card debt?
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(f) Should the Husband be ordered to pay the Wife's costs of the instant application?
InWhite v White2 Lord Nicholls described the approach the Court should adopt when dealing with different types of assets acquired before or during the marriage as:
"….property owned by one spouse before the marriage, and inherited property whenever acquired, stand on a different footing from what may be loosely called matrimonial property. According to this view, on a breakdown of the marriage these two classes of property should not necessarily be treated the same way. Property acquired before marriage and inherited property acquired during the marriage come from a source wholly external to the marriage. In fairness, where this property still exist, the spouse to whom it was given should be allowed to keep it. Conversely, the other spouse has a weaker claim to such property than he or she may have regarding the matrimonial property.
43. Plainly, when present, this factor is one of the circumstances of the case. It represents a contribution made to the welfare of the family by one of the parties to the marriage. The judge should take it into account. He should decide how important it is in the particular case. The nature and value of the property, and the time when and circumstances in which the property was
acquired, are among the relevant matters to be considered. However, in the ordinary course, this factor can be expected to carry little weight, if any, in a case where the claimant's financial needs cannot be met without recourse to this property."
The approach adopted by the Court to assets acquired pre-marriage will depend upon such factors as the length of the marriage, and all the circumstances of the case. InJ v J (Financial orders; wife's long-term needs) [2011] EWHC 1010 (Fam)3 where there was a medium length marriage and the assets were worth approximately £8 million, the fact that they were acquired by the husband before the marriage counted for little where the Court determined the distribution of the assets by reference to the wife's needs. In Mc Cartney v Mills-Mc Cartney [2008] EWHC 401 (Fam)4 where there was a short marriage, the wife's needs were a factor of 'magnetic importance' where all of the assets were acquired before the marriage.
The authorities have demonstrated that there is no clear rule that only property acquired during the marriage or property which is the financial product of the parties' endeavour are considered by the Courts to be the matrimonial assets. The relevance of whether property is matrimonial or non-matrimonial has to be looked at in the context of the needs of the applicant, in this case, the Wife. The fact that assets are inherited or pre-acquired may account for little where the needs of the applicant cannot be met without recourse to such assets5.
The matrimonial home is situate on 54,925 square feet of land at Mome Rouge, St George, Grenada ("the matrimonial home") which both parties agreed the Husband acquired on 5th February 19916, before the marriage, and on which the
house was constructed. Under cross-examination, the Wife admitted that there is no claim for an interest in the matrimonial home in the instant application.
There was no dispute that the Husband bore the entire financial responsibility of the construction and maintenance of the matrimonial home during the marriage. The Husband built the first and second stages of the matrimonial home in 1992, three years before the marriage7 and while he was married to another person. The matrimonial home was built in four stages and by the time the parties got married, the first and second phases were completed by the Husband who financed the first two stages with loans in the sum of $250,000.00 and which were paid off by the Husband within two years. The other stages were constructed during the marriage. At the time of the hearing of the instant application there was an outstanding mortgage in the sum of $569,000.008.
The Wife's financial and non-financial contribution to the matrimonial home were minimal. Indeed, she admitted under cross-examination that she made no financial contribution to any phase of the matrimonial home. Her non-financial contribution was limited to contributing to the design of the guest house and the design and refurbishment works after the damage done to it by hurricane Ivan.
The Courts have generally treated the matrimonial home differently compared to other matrimonial assets. Lord Nicholls inMiller v Miller and McFarlane v McFarlane [2006] UKHL 249 summed it up as:
"The parties' matrimonial home, even if this was brought into the marriage at the outset by one of the parties, usually has a central place in any marriage. So it should normally be treated as matrimonial...
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