Triea v Triea

Citation:           TT 2010 HC 35

Title:                 TRIEA v. TRIEA

Country:           Trinidad and Tobago

Court:               High Court

Suit No.:           FH No. 1265 of 2007

Judge(s):          Ramkerrysingh, J.

Date:                February 1, 2010

Subject:           Family law

Subsubject:      Matrimonial property division – Fairness principle – Petitioner leaving matrimonial property when in an unfinished state – Respondent improving building by 90% of its current value – Whether good reason to depart from equality within sharing principles – MPPA, D.27 – Factors to consider in determining division of assets – Petitioner entitled to ⅓ share and respondent to ⅔ – Order that lump sum to be paid to petitioner or alternative monthly periodic payments.

 

Appearances:

Ms. Annabelle Sooklal for the petitioner.

Ms. Lisa Francis for the respondent.

 

Introduction

Ramkerrysingh, J.: 1. Before delivering this judgment I would like to make a few opening remarks. Firstly, I must say that I am finding it increasingly challenging to determine matters involving parties of relatively modest means, where the only asset is the former matrimonial home, and where there is hardly any surplus left over to divide. Dispensing judicial fairness in these circumstances is akin to the precision of a surgeon’s scalpel during a major operation. The scales are delicately balanced and the task of ensuring a fair outcome can prove to be a daunting one indeed. Nonetheless, I hope that I have applied the fairness principle, justly and evenly to this case, reflective of the facts before me.

2. Secondly, some of my findings were based on credibility and I warn the parties that the best a court can do when faced with conflicting testimonies, is to weigh the facts against the evidence before it, in an attempt to get at the truth and so piece together the parties’ historical background, without having the benefit of being an eye witness to the events.
3. Although this is an uncomplicated matter involving one main asset (the former matrimonial home) and parties of modest means, it raises the interesting issue of distribution of assets in circumstances where the asset or assets has/have been greatly enhanced, largely through the post-separation efforts of one party only and where those improvements occurred several years after the separation. In this case when the Wife left the former matrimonial home, it was just barely habitable, although there was some dispute as to the state of incompletion of the structure at the time of her departure. However, several years after the parties were deemed to have separated, the Husband improved the building by what I estimate to be about 90 per cent of its current value. Accordingly, a major issue that I thought needed to be addressed, was whether this was a “good reason” to depart from equality within the sharing principle.

 

The Application

4. This is an application brought by Mrs. Triea (“the Wife”) for ancillary relief resulting from the breakdown of her six year marriage to Mr. Triea (“the Husband”). Her claim is for monthly periodic maintenance in the amount of $3,000, sale of the former matrimonial home situate 1874 Penal Rock Road, Moruga and equal division of its proceeds of sale. The Wife had initiated the cause by filing her petition for divorce on 11th July 2007 based on the fact of the Husband’s adultery with Cheryl Woods (‘the co-respondent”), by whom he has a child, now six years old. The Husband did not file an Answer and the petition proceeded as undefended on October 19th 2007 when directions were given for filing of the Wife’s Form 8 and supporting narrative affidavit, as well as the Husband’s responses via his Form 9 and affidavit. Directions were also given at a subsequent Directions Hearing for the valuation of the Rock Road, Penal property. There was some delay before the Wife filed her narrative affidavit as the parties and their attorneys were attempting to settle the issues. Several adjournments were allowed to facilitate the parties’ settlement talks.
5. Regrettably, the timely progress of this matter was further plagued by many occasions of non-appearance on the parts of the parties and counsel on both sides. Indeed the Directions Hearing was adjourned a total of seven times due to the non-appearance of one party or the other and on the l7h July 2009, in the absence of the Husband and his attorney, the case was set down for trial on 9th March 2010 and a Status Hearing was scheduled for 17th September 2009.
6. On the said 17th September 2009, Mrs. Boynes informed the court that the Husband’s portion of the valuation costs had still not been paid pursuant to directions given some 15 months before. I was becoming impatient with the slow progress and brought the trial date forward to November 16th 2009. The trial lasted two days, the 16th November and 7th December 2009.

 

The Factual Matrix

7. The case for the Wife is that she and the Husband had shared a long continuous relationship, from 1968 up to the time of marriage in 1994, by which time the three children of their union had already been born. She says that during their respective childhoods when they were neighbours in Moruga, and she was about fourteen years old, she and the Husband became romantically involved and at eighteen, their first child was born. The Wife being unemployed and with the Husband just having become a member of the Trinidad and Tobago Police Service, the parties could not afford their own accommodation so they continued to live with their respective parents. The relationship was on-going and they had two more children in 1974 and 1976. While the Husband worked as a police officer the Wife engaged herself with the then Drainage and Environmental Works Division (DEWD) programme and together they met the expenses of their growing family. By 1978 she said, they had saved enough money to build a modest wooden structure on lands belonging to the Husband’s family into which they moved, thee months later. This marled the commencement of their pre-marital cohabitation. According to the Wife the family lived in the house and she and the Husband managed their household together. She said that they pooled their salaries to pay the bills, purchase goods for their daily needs, as well as other items for the children and the family generally. She admits that her salary from her occasional employment with DEWD was not substantial enough to allow her to save anything, but whatever she received by way of wages from the programme, went into maintaining the family and running their affairs.
8. The Wife went on to say that in 1995 the Husband had come into some money from the Ministry of National Security, over an issue surrounding his suspension from the police service. No details were given as to the lump sum the Husband received, or the reason for, or even the period of time of the suspension, but it seems that the sum was substantial enough to enable the parties to begin construction of a concrete structure, in front of the original matrimonial home. She could not recall when actual construction began, saying only that it was sometime in 1995 or 1996, but remembers that the process was a protractedly long one, due to the lack of funding. The Wife deposed that the project was funded by two major loans taken by the Husband from (1) Republic Bank Limited, for which she said her uncle offered them $10,000, which was used as security for the said loan and, (2) the Trinidad and Tobago Police Credit Union. Details of the said loans were provided by witnesses, summoned to give evidence in that regard.
9. At the time of the construction, the Wife stated that the Husband was not always available to supervise the workmen because of his work commitments and therefore it was left to her to supervise the men for whom she prepared meals.
10. The main rooms of the house were completed by 1998 she said and they moved into the unfinished structure although there were still several finishing details left undone. I would take some time to itemise the work necessary for completion because the state of incompletion of the house turned out to be one of the turning points of the case. The Wife said that when they began occupying the concrete house in 1998 it consisted of three bedrooms, a toilet and bathroom, kitchen, drawing and dining rooms and a porch. Although they occupied the house, she said the following finishing works still had to be done that is: (1) plastering of the exterior walls, (2) plastering of the kitchen and dining room walls; (3) installation of the ceiling; (4) electrical wiring of the house; (5) plumbing installation; and (6) installation of door and windows, the openings for which were temporarily blocked by removable pieces of wood and galvanize sheeting. When the parties ran out of funds to complete these finishes, the Wife said that she and the Husband agreed that she would travel to the United States to seek employment, by which she hoped to raise some extra cash to help finance the work left to be done on the house.
11. In her supporting affidavit the Wife deposed that during the period April 1998 to 2004 the Wife went to America and worked at several jobs. She said she called the Husband often and send money back to Trinidad to facilitate the completion works. She also sent barrels of clothes and foodstuff for the respondent and the children from the United States. When she returned to Trinidad for the first time in October 1998 the Wife said she brought with her cash in the amount of some $15,000 TT, which was used to wire and plaster the house. She returned to the United States the following April and continued to send money to the Husband through the Western Union service and it was while she was there sometime later that year (1999) she said that she heard that the Husband had brought the co-respondent to live with him in the home. The Wife said that she “repeatedly told the [Husband] and the co-respondent that [she] wanted to come back to Trinidad and to [her] home” and that the Husband and co-respondent refused to give in to her demands. She said she was forced to return to Trinidad in 2004 and move in with her brother because she had nowhere else to go. The savings she was able to accumulate from 1999 to 2004 have now been depleted she says, in meeting her living expenses since her return and in meeting the needs of the children She has also been re-employed with the Unemployment Relief Programme (formerly DEWD) and wishes to have her share and/or interest in the Penal Rock Road property realised.
12. In support of her contention that she sent money to the Husband during her time abroad the Wife exhibited a statement from Grace Kennedy (Trinidad and Tobago) Limited which detailed the money transfer transactions from July 1999 to January 2004. During this four year period the Wife sent the Husband just under $21,400 TT (calculated at $1.00 US to $6.40 TT).
13. The Husband largely admits everything the Wife said about the relationship and its history, save in two important respects. Firstly, he claimed that the Wife omitted to mention a significant incident which, for him, marked a turning point in their relationship. He stated that two years before they married, he caught the Wife “red-handed-engaging in sexual intercourse with another man. He said that the incident left him feeling very untrusting of the Wife, a feeling from which he never recovered, but they none the less reconciled and married in 1994. The second grave omission according to the Husband was that by the second year of the marriage, it had already started to deteriorate and this was the primary reason why the Wife “opted to go to the United States and not because she wanted to improve her earning capacity.
14. It is not surprising that the Wife strongly denies the sexual encounter mentioned by the Husband, but in weighing the evidence I am afraid that I lean more towards the evidence of the Husband in this regard than the Wife, and although the encounter itself does nothing to affect the ultimate distribution, to my mind its significance is relative as to the credibility of the Wife only. I draw my conclusions based on the fact that the Wife in her first affidavit made mention of the various ways in which she contributed to the marriage, the construction of the two homes and the welfare of the family, but leaves out a very significant source of income, in the form of the clothing store that they both managed. This was mentioned for the first time by the Husband in his responding affidavit when he described the Wife’s sexual encounter. There seems to be no dispute that the parties did at one time own and operate such an establishment, but I find it quite odd that the Wife makes no mention of this venture until the Husband spoke about it, especially since, the Wife proclaims the innocence of the encounter in her Affidavit in reply filed on November 3, 2008. According to her, the Husband was of jealous temperament and would frequently, unjustifiably and without cause, accuse her of infidelity. On the day of the incident the Wife said that she was in the clothing store with her sister when Mr. Baptiste came in to make a purchase, The Husband entered the store and saw the three of them talking and immediately abused her and accused her of having a sexual relationship with Mr. Baptiste. As I said above the details of the encounter are of little significance, but, I would have thought that a fact so important to the Wife’s case, that is, her role in such a notable source of income as this clothing store, would surely have been included by the Wife. I can only conclude therefore that her omission was deliberate and that she must have had some reason for so doing. Could it be that making mention of the store would have opened the door for the story of this tryst to make its way into the background history of this marriage? I cannot be entirely certain of the answer to that question, hut this is the only reasonable assumption I can make, to explain her startling omission. More importantly however, the omission makes me wonder about the Wife’s credibility. It is unfortunate though that more detail was not given by either side, particularly the Wife, of the nature and history of this business venture and what eventually became of it.
15. The parties agree in principle that it was the Husband who was the mainstay of the family, being the higher wage earner and in full-time employment, although the tone of paragraph four of the Husband’s affidavit seems to suggest that the Wife was making an issue of that fact when indeed, she was not The parties are also on common ground regarding the construction of the wooden structure that served as their first home and the fact that the Husband was the main financier of the project The Husband declares however that the parties neither pooled their resources, nor managed their finances together. He said instead, that it was he who was responsible for bill payments and meeting the needs of the family as a whole and whatever intermittent wages the Wife earned, were used for her own expenses, and that by the time she received such monies, the family’s needs would have already been met. I take this to mean that he felt that any expenditure by the Wife was not essential whether for her own needs of that of the family. The Husband also agrees with the Wife that it was through his financial efforts that the concrete house was built. He also accepts that the Wife’s uncle helped him to secure one of the two loans he took for this venture, by offering $10,000 which was held by the bank and that he took a further loan from his credit anion; both loans he said amounting to approximately $70,000 were paid off by him alone. Like the Wife he stated that the loan funds were only able to finance a partial completion of the construction of the house, which he estimated to be about one-third complete. The Husband denies that the Wife either supervised or fed the men who worked on the construction. According to him the job of supervising the work was his alone and the men brought their own meals to the job site. The Husband said that it was on a few occasions only that the Wife offered the workers food that she had prepared, but that was not an everyday occurrence.
16. There is also a disparity between the parties regarding the state of completeness of the house in 1998. While the Wife said that the exterior walls were un-plastered, but all the interior walls save the kitchen and dining room were plastered, the Husband states that all the walls, both inside and out were un-plastered save one room, which was plastered in time for Christmas 1997, and it was into this room that the family moved and occupied when they moved in. Shortly after this, that is to say around April 1998, the Husband stated that the Wife “left me and went to the United States of America.” The Husband claims that she did not return to the home and sent for the youngest child, Rossi, to join her in America. The Husband intimates that it was by the Wife’s insistence that he reluctantly sent the child to the United States where he met with bad company, got involved in drugs and became an addict He stated that when the child became too much for the Wife to handle, she sent him back to Trinidad where he, the Husband, nursed him back to health. He said it took a great deal of money to rehabilitate the young man, and get him the psychiatric counselling, medicine and care that was needed for full recovery. He was then instrumental in getting a job for the child with a security company. The period of the child’s convalescence was 2001 to 2003 and the Husband said that any money sent by the Wife during this time was for the purpose of the child’s rehabilitation and not for home improvements. The Husband referred to the Wife’s exhibit “PYT1” as evidence of the small sums sent by the Wife over the six year period she was away, which were, according to him, insufficient to render any financial assistance towards the home construction project.
17. The Husband disagrees with the Wife too, when she said that she initially went to the United States in order to send money back to Trinidad to help with the home. It is the Husband’s case that the Wife told him that “she was going to live in greener pastures” when she left in 1998, because by that time the marriage had broken down. He alleged that while in the United States the Wife began a common-law relationship with a new partner and whatever money she earned during that time was used for her own benefit and her new relationship. The Husband said that the Wife made it clear to him that she had no intention of returning to Trinidad Two years later he began a relationship of his own, with the co-respondent whom he had initially employed as a housekeeper after the Wife’s departure. According to him, it was the end of the Wife’s relationship in 2004 that prompted her return to Trinidad, by which time he had already been living with the co-respondent for four years. The Husband also denied telling the Wife that the co-respondent had indicated that she would give up occupation of the home, provided that he found alternative accommodation for her. In answer to that allegation the Husband said that the co-respondent was, by then, his common-law wife of four years with whom he had a child and in those circumstances he would never have abandoned his new family to reconcile with the Wife.
18. With respect to the Wife’s financial contribution to the home the Husband said that of the $15,000 the Wife claimed that she returned with in 1998, only $4,000 was used to plaster the walls and this was her “only notable monetary contribution towards the construction of the home.” The Husband stated too, that when the Wife left Trinidad in 1998 she left the two younger children with him and he was responsible for all their needs until they became financially independent and up to the time of these proceedings had still been living with him and the co-respondent. By the time the Wife returned to Trinidad in 2004, the Husband stated, that the two boys were already gainfully employed and there was no need for her to use any of the savings she claimed to have returned with, to ” assist [the] children…”. The Husband suggested, that any money she brought back with her, was utilised in purchasing, or contributing to the purchase of the house she now shares with her brother.
19. The Husband disagrees with the Wife that she sent barrels to Trinidad filled with clothes and other items for the family. He stated that this was not a regular occurrence as the Wife tried to insinuate, but that indeed she had done this only once.
20. Finally the Husband stated that the land on which the former matrimonial home stands belongs to his deceased father, whose estate has not yet been administered. He stated further, that when the estate is finally administered it has to be distributed among himself and his seven siblings.

 

Findings of Fact and weighing the evidence

21. In weighing the evidence I am not at all convinced that the Wife was telling the truth when she said that she sent money to help with construction costs of the former matrimonial home. The sums as exhibited by her Western Union Statement avenge about $3,000 to $4,000 per year for the period 1999 to 2003. She admitted that she sent no money on her first visit in 1998 saying under cross-examination “…I didn’t send any money because I only went for six months, but afterwards in 2001 the money I sent was for Rossi [meaning the child who had suffered symptoms of drug abuse] and whatsoever was to do here.”, I took the word “whatsoever” to mean that she wanted the court to accept that those sums were to include expenditure to meet construction costs. When Ms. Francis suggested that the sums of money she sent were too inadequate to be used for this purpose, she disagreed with that suggestion. But taking the evidence that she produced in support of the money she sent to the Husband, it must be appreciated that an average of $4,000 (TT) per year, is hardly likely to be of any meaningful financial assistance, and there is no other evidence that the Wife sent money by any other means. I therefore find that after she left for the United States the Wife’s financial contribution to the house improvements was minimal at most. In any event as the cross examination continued the Wife discredited her earlier statement, when she admitted that from 1999 onwards she refused to contribute to the house, after she discovered that the co-respondent had moved in. This is discussed in more detail below, but her contradictory statements were too great to ignore. That is not to say however that I do not find that there are other areas in which the Wife had contributed while she was in America I have discussed these areas later in the judgment.
22. Another major area of disparity to be addressed is the state of completeness or incompleteness of the house when the Wife left it in 1998. At first the Wife insisted that the house was more than one-third complete before her departure. When questioned on this issue by Ms. Francis she estimated that “[u] p to 1998 I would say it was about three-quarter complete.”, but when pressed she accepted that “[b]efore I went to the Sates the house was one-third complete.” What is also noteworthy is that the Wife agrees that it was only when the Husband received his gratuity payment in 2006 in the amount of $270,000 ($100,000 of which the Husband claims he spent on the house) “…was when I observed the house going up fast and finishing.” She went on to say: “The majority of gratuity he received went to the completion of the house.” and that “[she] didn’t have money to put.” Indeed she clearly admitted that “[she] refused to put money (towards the completion of the house) since 1999 because he had somebody in there.”
23. In analysing the evidence I draw the following conclusions: (1) When the Wife left to go the United States the house was one-third complete as she eventually admitted, and to which the Husband had himself deposed.
24. I have come to this conclusion for three reasons. Firstly, the parties are on common ground that it was the Husband’s gratuity that was used to finish the house. The Wife agrees with that, saying as has been mentioned above, that it was only when the Husband got his gratuity that the house was “going up fast and finishing”. The Husband testified that he spent $170,000, plus a further $100,000 (which he borrowed from Republic Bank Limited) on the completion of the house. I accept these statements.
25. Secondly, the house was completed in 2006 and in 2009 it was valued by Messrs Ramyond & Pierre Ltd. at $450,000. The valuators were asked to value the house and land separately as it is the Husband’s case that the land does not belong to him and accordingly should not be included in the distribution. (I need mention here that the separation of the values of the land and the house was merely for convenience and had no impact on the actual division of the interest in the property as a whole.) The house alone was valued at $315,000. It is reasonable to assume that the house has appreciated in value since it was completed three years ago. Now if it is accepted that the Husband spent $270,000 in 2006 on improvements on a house that measures a modest 1,365 square feet, and we were to take the value of the house at today’s market value, then by simple arithmetic (85.7% = 270,000 x 100/315,000) I estimate that the Husband added approximately 85.7% value to the house, which would mean that, prior to these improvements and the $270,000 injection, it valued 14.2 per cent of its present value (315,000 – 270,000 = 45,000: 45,000 x 100/315,000= 14 2%).
26. Thirdly, the Wife maintained that up to 1998 the house was about 3/a complete. She described the house at that time consisting of: “The three bedrooms [which] were not plastered. … No toilet and bath fixtures installed, dining and living rooms and porch [which] were not plastered before I left.” The Husband on the other hand was not cross-examined on the issue of the completion of the house at the time of the Wife’s departure from Trinidad, but in his narrative affidavit he deposed that “…the home… was 3 completed only when the Applicant left Trinidad … [and] … that I and not the applicant [am] the one who financed at least 90% of the construction of this home which was completed eight years after the applicant and I were separated.”
27. Other findings that I have made are the following: (2) that the Wife contributed no money towards the house construction and improvements in 1998, and had admitted as much under cross-examination; (3) that the sums sent by the Wife after she returned to the United States in April 1999 were not intended by her to be, nor indeed were they utilised on the house expenditure, but rather, were sent specifically to assist with Rossi’s rehabilitation; finally, (4) that the Wife’s deliberate refusal not to help with the completion of the house comes from her own lips, when she admitted that she did not contribute any money to the house after 1999 when she discovered that the Husband had moved the co-respondent into the residence.
28. I therefore accept the Husband’s contention and hold, that the house was only one-third complete when the Wife left in 1998. I hold further, that while the Husband and the Wife contributed to its initial construction, the Husband’s overall contribution at that time far outweighed the Wife’s. More importantly I hold that the Husband added approximately 90 per cent to the value of the property by the improvements he made to it in 2006.
29. What impact does all of the above have on the division of the parties’ respective interests in the former matrimonial home? I think that the answer to this question is greatly affected by three major factors. Firstly, the timeliness of the breakdown of the marriage; secondly the significant, unilateral, post-separation improvement of the property by the Husband; and thirdly the lapse of time between the breakdown of the marriage and the filing of the Wife’s application for relief. I will examine this question and the aforementioned factors, firstly, in light of the wealth of authorities that abound in this area and secondly under the guidelines provided by section 27 of the Act (Matrimonial Proceedings and Property Act). I have held that the house was only about one-third complete when the Wife left in 1998. Is it fair that she should benefit from the improved value of the house, in circumstances where it is clear that those improvements were carried out at a time when the Husband contends the marriage had broken down several years before, and where by extension, the Wife and the marriage played no part in the said enhancements? To answer this question, I think it is important firstly to establish the time of the breakdown of the marriage.

Calculating the time of separation of the parties

30. The Wife maintains that the marriage continued up to 2004, when she returned permanently to Trinidad. According to her during the years she spent abroad, and in particular in 1999 when she first heard rumours that the co-respondent had moved into the house, she “… repeatedly told the respondent and the co-respondent that [she] wanted to come back to Trinidad and to [her] home and the co-respondent had to leave. However she told me that she would not leave unless the respondent provided somewhere else for her to live.” She went on to say that “[a]fter years of promises by the respondent I could not wait any more and I returned to Trinidad in 2004, but despite my demands the respondent refused to end the relationship with the co-respondent and I had no choice but to seek accommodation at my brother’s house…”. These statements fall short of the mark in persuading me that the marriage continued up to the year of the Wife’s return in 2004, for a number of reasons. The Wife said that she first heard the rumours that the co-respondent and the Husband were living together in the house since 1999. I presume that at some point, although she does not say precisely when, she confirmed these rumours when she said that she would telephone the house and the co-respondent would answer and later, that she told the respondent and the co-respondent that she wanted to return to Trinidad. Let us assume that her discovery was made clear to her sometime in 1999, is it reasonable for the court to accept that the marriage still subsisted some five years after that discovery was made? She did not elaborate on the alleged promises made by the Husband to have the co-respondent removed from the former matrimonial home, but I am hard pressed to believe that the Wife would hold out that there was still something to salvage in a marriage, in which she had been continuously absent for five years, (if we are to start counting from 1999) and in circumstances where she knew that there was an existing cohabitational relationship between the Husband and the co-respondent?
31. Moreover, the Wife does not explain why did not return to Trinidad earlier than 2004, or otherwise make a more direct attempt, to save her marriage during that five year period. The extent of her response in that regard under cross-examination, was that she kept telling the respondent to “…get that woman from inside my home”, which perhaps, she thought was sufficient to preserve the marriage, for she added that “[she] didn’t think it necessary to come back.” She must have been aware of the strong bond that existed between the respondent and the co-respondent and the obvious threat it posed to her marriage, for she was vehement in her refusal to send any money for the house as far back as 1999, but in spite of that, did nothing to sustain the marriage. From the evidence there was no impediment preventing the Wife from returning to Trinidad to breathe new life into her marriage, if that was what she wanted. She chose not to come. She allowed precious time to ebb away, five years in fact, before she decided to step in. Five years, during which she knew that the very foundations of whatever she thought was left of the marriage were shaken to the core, yet all she felt inclined to do was telephone the Husband and the co-respondent from time to time to tell them she wanted to return to the house. I am afraid that I find this all too difficult to accept. I can only reasonably conclude that the reason why the Wife did nothing in all that time, was because she knew that the marriage had already met its demise and there was nothing left to resuscitate.

32 What I also find puzzling in relation to the Wife’s contention that the marriage was on-going to 2004, is that upon her return to Trinidad she stated that she brought $80,000 with her, but she did not treat this money as one would a matrimonial asset and as if the marriage still existed. She offered none of it to the Husband and although she claimed not to have remembered how those monies were disbursed, it is not disputed that spent it on her own needs and, as she said in her affidavit, on the children, who by now were all working adults. While I am not being critical of the Wife in this regard, I cannot perceive that she still had faith in the marriage, while at the same time dealing with this fund to the exclusion of the Husband, unless she thought that the marriage was indeed at an end. It seems to me from the evidence, that apart from her obligations to Rossi and the other children of the marriage, the Wife had been conducting her affairs as a femme sole since 1999, with no particular regard for the respondent or the marriage.

33. The Husband made mention of a small but significant fact which remained unchallenged by the Wife, but which makes me believe further that the Wife was fully aware that the Husband had settled into his relationship with the co-respondent. He said that during Rossi’s convalescence, the co-respondent and another child who also lived at Penal Rocj Road, Ron, had a falling out which caused the co-respondent to leave home, and it was the Wife who called the co-respondent and persuaded her to return, so that she could continue to help the Husband take care of Rossi.
34. In my judgment the Wife must have known that the marriage was over, as early as 1999, and even if I am wrong in drawing this conclusion, it is nonetheless painfully clear that the Husband treated the marriage as at an end from 1999. He became intimately involved with the co-respondent at a time when he thought the Wife had already abandoned the marriage and according to him, moved on to “greener pastures”. He therefore moved on with his own life and certainly by 2000 he was settled in his relationship with the co-respondent. In his Affidavit the Husband denied promising to find alternative accommodation for the co-respondent and resuming a life with the Wife. He intimated that the notion would never have entered his mind because he considered the co-respondent to be his wife with whom he had a child and he had no intention of abandoning her. I am of the view that he is telling the truth in this regard and I find that the parties separated in 1999 by which time the marriage was at an end.

 

The Issues and the Law

35. In my judgment, when the Wife returned to Trinidad in 2004, the marriage existed in name only, but the substance of it had crumbled by 1999. One major issue is whether the Wife is entitled to share in the improved value of the house, when, as I have shown above, the improvements took place in 2006, without any input by the Wife, financial or otherwise and at a time when it was firmly established that the Husband had long been settled with his new family and there was no longer any room for the Wife in his life. This raises two very important issues. (1) Should the value of the house be taken as at the date of separation in 1998, or should the value to be considered for distribution include the improved value as reflected on the valuation report at the time of trial? The answer to this question is obvious. We know that it is the value at the time of trial is what is important, but how does this value affect the final division? (2) Whatever value is used, should the parties share in it equally or is this a circumstance where deviation from equality would be the effective way of achieving fairness?
36. Taking a closer look at the second issue my question is whether the very significant improvement of the former matrimonial home by the Husband so many years after the breakdown of the marriage, entitles the parties to an equal distribution of that asset, and if not, what approach should the court take when faced with such a substantial improvement, to which neither the other spouse (in this case the Wife) nor the marriage is attributable? Does this situation warrant a deviation from equality?
37. As a corollary to the above, and more pertinent to the state of incompletion of the house when the Wife left Trinidad in 1998, the other issues that arise are: (1) the degree of incompleteness of the home at the time the Wife left Trinidad in 1998; (2) whether the Husband’s responsibility for its completion warrants an unequal sharing; (3) What were the contributions made to the home and family by the respective parties – (i) before the Wife left to go to the United States, (ii) during her stay abroad and (iii) when she returned to Trinidad – and the effect of those contributions on the final division of the property; (4) whether the marriage came to an end in 1998 and if so, does the Wife’s application come too late after the separation to induce equality; (5) what proportion of the former matrimonial home is the Wife entitled to?
38. In preparing this judgment I came across two cases that proved to be of immense help and guidance on the issue of the division of matrimonial assets which were greatly enhanced by one party only, after separation. Both cases primarily involved the enhancement of company assets, but I am of the view that they are just as relevant to enhancement of real property.
39. The first of these cases is S v. S [2006] E.W.H.C. 2339 (ram); 2006 WL 3206184. In that case, like the one before me, the parties had been living apart for appro2inately 10 years, after their 18½ year marriage. In spite of their lengthy separation, Mrs. S was of the view, that her uncertainty that the marriage was at an end, should be looked upon as a continuation of the marriage, at least up to the time when she was assured some years later, that the marriage had indeed ended. Justice Singer rejected that view and used the time of the physical separation of the parties (some ten years earlier) to mark the end of the marriage. Further, Justice Singer held that this ten year period of separation during which Mr. S developed his business without any form of support or contribution from the Wife, prevents her from benefiting from that enhancement. A distinguishing feature of this case from the one before me however, is that the separation period also saw Mr. And Mrs. S’s continued contributions to the former matrimonial home, which they had both previously agreed would be left with Mrs. S, but the essence of the case was that the expansion of Mr. S’s portfolio of shares, (by his own efforts without the help of the wife) since the separation, were deemed immune from inclusion. So too, was the house he bought after the separation for just under £1M. Mrs. S’s attorneys also tried to persuade the court to accept a rather complicated formula to calculate the value of the husband’s future shares. Singer, J. rejected this formula as an arbitrary proposition which, if put into effect, would have yielded an unfair result. The judge was of the opinion that if the husband were able to steer the company on a successful and lucrative course, then he should retain the whole of the reward which came about as a result of his post-separation endeavours (S v. S (2006) W.L. 3206184 para. 85).
40. While Singer, J. accepted that the court in looking at the disposition of available assets, should take their value, actual or potential, as at the hearing date, he viewed that, as only a starting point. He said at paragraph 88: `But to view the financial circumstances as they are at the hearing date can, in what I regard as the exceptional circumstances of this case, in any event be a starting point What has happened in the intervening years may be very significant, as I find in this case, is the case …” At paragraph 92 in referring to the case of N v. N (Financial Provision: Sale of Company) [2001] 2 F.L.R. 69 Justice Singer continued: “N v. N was also a case where the husband suggested that account should be taken of what was described as a huge increase in the company’s turnover since separation and that the wife’s entitlement should be discounted to reflect it. As to this Coleridge, J. said (at page 78): ‘I am quite sure that even now in most cases that [the date when the hearing takes place] is the correct date when valuation should be applied. But I think the court must have an eye to the valuation at the date of separation where there has been a very significant change accounted for by more than lust inflation or deflation; natural inflation inflationary pressures on particular assets for instance, the value of a house moving or down in the housing market.’ (Emphasis mine) In this case the increase in value is attributable to extra investment of time, effort and money by the husband since separation and I do take into account the exceptionally steep increase in the turnover of figures since the date of the separation. However, having done so it must be put in the context of the wife’s continuing contribution too which similarly did not cease at the date of separation. (Emphasis mine) She continued to play the valuable part that she had done throughout the marriage, in looking after the home and the children”
41. Now it must be remembered that in the case before me, the Husband was responsible for 90% of the enhanced value of the property and like Mrs. S the Wife in this case continued, albeit on a minimal scale, to contribute to the family, but in spite of Mrs. S’s continued contribution she was still excluded from the benefit of any post-separation accruals. It is worth repeating that the parties, as I have held earlier, parted ways in 1999, and while the Wife continued to send monies to the Husband to use as he saw fit, it is undisputed that the very substantial improvement to the former matrimonial home took place seven years after the separation, through the sole efforts of the Husband. It is my view that this is a “circumstance” (Matrimonial Proceedings and Property Act s. 27 (1)) that cannot be ignored by any court. In the words of Mostyn QC in Rossi v. Rossi 12007] 1 F.L.R. 790, (a case to which I shall refer later (Para 50/51 below)) at 794 paragraph 9: “In this case there had been a very substantial passage of time between the separation of the parties and the hearing of H’s claim for ancillary relief Quite apart from the independent question of whether delay per se is a relevant factor in the exercise of the statutory discretion there is the critical question of whether money or property that has been acquired after separation forms part of the matrimonial property.” This excerpt identifies a very real concern about post-separation improvements to property and post-separation acquests, and the suggestion from a reading of these very interesting authorities, is that there are no automatic inclusions of these assets, nor is there any formulaic principle to be applied in their distribution, if they are deemed to be included, but the circumstances of each case that will dictate whether or not they are to be included for division and the proportion of that division.
42. To take the argument further, Mostyn Q.C. posed the following question, which is even more pertinent to the case before me: What, he asked, is the position where a party has taken matrimonial property that existed at separation and traded with it and achieved a significant profit, or in this case where the Husband has turned the modest matrimonial home into a much more valuable asset? Before answering that question Deputy Judge Mostyn Q.C. examined two sets of arguments which can arise from the situation just described. “On the one hand it can legitimately be argued that the party in question has traded with the other party’s undivided share and so should share with that party the profit that has been generated On the other hand it can equally convincingly be said that the second party has not contributed to the industry or endeavour that gave rise to the profit or growth and so it is unfair that the second party should share to the same extent in that profit as the first who made all the effort” Singer, J. in S v. S (Page 17; para. 39) referred to the above extract, before concluding at paragraph 107 that. “These I have taken into account in agreeing that the pattern and (so far as ascertainable) the value of relevant assets are to be considered at the date of the hearing rather than of the separation of the parties, without necessarily being the case that each party is entitled to an equivalent share of the value of each category of asset by reference to values at the hearing date.” (Emphasis mine)
43. The other very instructive case is the 21st January 2010 judgment of Mr. Justice Charles in J v. J [2009] E.W.H.C. 2654 (Pam); 2010 WL 19983 where the learned judge very eloquently outlined the legal propositions mentioned below (Para. 44), as a starting point that can be applied generally to cases involving distribution of matrimonial assets. I think the guidelines provide a succinct but helpful checklist for both judges and family law practitioners. I also find it to be a sound summation of the salient points laid down by the key cases of the post-White era and I take the time to mention these points here, as I think they mark an important milestone in the application of the rules of equality and fairness first applied in the landmark case of White v. White. The White v. White, Miller v. Miller Mc Farlane v. McFarlane cases introduced the principles on equality and non-discriminatory contributions, but there are other equally important principles that have been over-shadowed and sometimes I feel, silenced, by the principles of equality and non-discriminatory contributions and I think it worthwhile to mention them here, inasmuch as they are relevant to, and have a profound impact on cases like this one that involve post-separation singular efforts, which affect the value of matrimonial and non-matrimonial assets. Justice Charles was of the view that the points have not been fully addressed and that the guideline cases fall short of explaining the approach to be taken in law when considering these points.
44. These points are found at paragraph 288 Justice Charles’s judgment: “In my judgment the following propositions can now be stated with some certainty:

 

• (i) Fairness is the objective
• (ii) The distribution of assets between the parties should be effected on a principled and not on an arbitrary basis.
• (iii) The starting point is the financial position of the parties and s. 25 MCA 1973. This appears for example at paragraph 67 of the judgment of Sir Mark Potter P in Charman v. Charman [2007] 1 F.L.R. 1246 (Charman (No. 4)) where he says: the starting point of every inquiry in an application of ancillary relied is the financial position of the parties. The inquiry is always in two stages, namely computation and distribution’ and at paragraph 24 of B v. B (Ancillary Relief) [2008] 1627.
• (iv) The House of Lords in White v. White[2001] A.C. 596 and Miller v. Miller and McFarlane v. McFarlane [2006] 2 A.C. 618 has given guidance as to the approach and principles to be applied in the exercise of the statutory discretion conferred by the MCA 1973.
• (v) That guidance makes it clear that the court is to have regard to and apply the relevant statutory provisions.
• (vi) In doing so the three main principles that inform the second stage of the enquiry (i.e. distribution) and thus the reasoning to be applied in determining on a principled basis applying the statute what is a fair result, are need (generously interpreted) compensation and sharing.
• (vii) the source of assets is relevant.”

 

45. Mr. Justice Charles then went on to explain in detail the main principles outlined above and for those practitioners of family law interested in self edification, I highly recommend this case as a source of insightful information touching these still evolving principles of family law, but for now, I propose only to deal with the excerpts as are relevant to the present case. J v. J defines the circumstances in which a departure from equality can occur but generally, it advises that such a departure is a case-by-case exercise, dependant purely on its own set of facts, but which primarily takes place within the sharing principle, which may result in an unequal distribution. According to Charles, J. at paragraph 301 of the judgment “To my mind, the end of paragraph 65 makes it clear that a departure from equality takes place within the sharing principle and is not a departure from it…” (Emphasis mine) and at 306 he says: “So in my judgment, the approach in Charman (No. 4) enables the relevant circumstances of the case to be taken into account at all stages of the reasoning and therefore it promotes the flexibility referred to by the House of Lords in the performance of the statutory task in a principled way.”
46. Next, Justice Charles analysed departure from equality within the sharing principle, which, he suggested, can occur depending on the nature and source of an asset, which in tuna, can provide a good reason for such departure. He then followed with a long dissertation on unilateral, pre-marital assets (which I also found to be very helpful reading), before dealing directly with the impact the date and value of the asset has on its distribution. In considering the date at which assets that are to be taken into account should be assessed and valued, he said at paragraph 323: “In other words what is to be identified as the property that is the subject of distribution applying s. 25 MCA. This identifies the extent and value of the assets to be considered, and this the starting point for a departure for good reason (e.g. the existence of pre-acquired or gifted assets) from equality within the application of the sharing principle on a non discriminatory basis…. (para. 324) In my judgment, the relevant date is the date of the trial and not an earlier cut off point by reference to separation, or some other event. Those events, and what happened before and after them may be relevant in identifying what award should be made but that is part of the second stage of the exercise” (Emphasis mine)
47. In the case of post-separation assets or “the fruits of post cohabitation endeavour” (See H v. H [2009] E.W.H.C. 494 (Fan) per Singer, J.) Mr. Justice Charles drew distinctions, or as he termed them “conceptual differences”, at paragraph 363 (J v. J [2009] W.L. 79983) between “(a) future earnings (and earning capacity acquired and developed during the marriage) and (b) capital assets such as the shares in a private company. In respect of changes in the value of capital assets there are also conceptual differences between changes in value that are, and are not, based on effort, work or skill of a party to the marriage even when the asset has been created by such work etc.” Charles, J. went on to discuss in some detail the relevance of post-separation growth, before agreeing with Singer, J.’s conclusion in S v. S [2006] E.W.H.C. 2339 (Fam); 2006 WL 3206184, which he quoted at paragraph 376 thus: “In S v. S at paragraph 109 Singer] said: “– but I also entirely agree with Mr. Mostyn in his judicial capacity when he concluded (at the end of para. 23 in Rossi (Page 23; pares 50)) “that Lord Mance [in Miller] was approbating emphatically the principle that independent endeavour after separation which is productive of money or property should be reflected in the division of assets” (Emphasis mine) Again I agree, and add that in my view he was also making it clear that pre-acquired and gifted assets could also be so reflected.”. The learned judge is clearly advocating that allowances must be given for increases in value particularly after separation. He also exemplified it in this way at paragraph 377: “…just as the impact on the current value of a pre-acquired asset will probably diminish as a marriage continues the impact of the asset built up during the marriage on its value at trial will probably decrease with the length of time that passes between separation and trial.”
48. It is important to note that Charles, J. warned against arbitrarily applying the formula used in earlier cases in an attempt to maintain consistency. In other words the court must be careful how it follows precedent cases. He said at paragraph 390: “I accept that a cross check to earlier decisions is appropriate but, in my judgment, a general approach of effectively arriving a percentage simply by reference to the results of other cases and the range of percentages that gives is wrong…. To my mind a principled approach does not lead to the court taking a formulaic or mathematical approach, or a one approach fits all cases approach or an approach that requires it to closely identify and quantify (by valuation or otherwise) assets that fall to be treated as matrimonial assets and those which represent pre-acquired or gifted assets and post separation assets. Rather in my judgment it means that the court has to make an assessment in each case having regard to the factors or ingredients I have mentioned relating to the impact of pre-acquired business assets, and events and work since separation to gauge their impact on the creation and value of the relevant assets and how that should affect the award to be made.”
49. Charles, J. then proceeded at paragraph 407 to lay down two very helpful guidelines involving post-separation property and enhancement:

 

(i)   in determining the impact of post separation enhancement in the value of assets the court is exercising a broad discretion and must do so in a principled way by reference to the facts of the particular case and;

(ii)   the nature of aspects of the exercise is such that having established from the evidence the relevant building blocks and key points it is not practical or sensible to search for a mathematical formulaic solution.”

 

50. There is the other interesting case of Rossi v. Rossi [2007] 1 F.L.R. 803 that is also very helpful. Practitioners of family law I am sure are familiar with this authority as a guide to the identification of matrimonial and non-matrimonial assets. I used it in this case however, in relation to the effects of delay on applications for ancillary relief. In Rossi’s case Mr. Moystyn QC quoted from Jackson’s Matrimonial Finance and Taxation (Butterworths, 7th edn. 2002) para 5.7 and I think the quotation is worth repeating here:

 

“Whatever the length of the marriage, a claim may fail if it is left dormant for too long, in which case one factor may be that the husband’s assets have been built up with another woman. It has been said that after a long lapse of time a party to a marriage should be entitled to take the view that there would be no revival or initiation off financial claims against him; the longer the lapse of time the more secure he should feel in the rearrangement of his financial affairs and the less should any claim be encouraged or entertained.”

 

Mr. Moystyn QC also examined the “vice of delay” (Rossi v. Rossi [2007] 1 F.L.R. 790 at 803 pan [29]) as he termed it in the case of D v. W (Application for Financial Provision: Effect of Delay) [1984] Faro. Law 152 where the wife brought an application for ancillary relief to recover the value of her half share of the former matrimonial home, six years after the breakdown of the marriage, where Booth, J. expressed his view on long delayed matters this way. “There are certain detrimental consequences of delay. The first is that delay engenders bitterness and hostility between the parties which is detrimental to the whole fairly, …… The delay inevitably increases costs. It leads to a multiplicity of affidavits which are filed in order to deal with the ever-changing position of each of the parties. It inevitably it leads to an exchange of correspondence over a protracted period between solicitors and no doubt also leads to attendance of the parties upon the solicitors and all those matters add up in costs.’

The husband in D v. W was aggrieved that he now had to face litigious matters about the home in which he had been living for the past 10 years and the wife felt deprived of her right to live there or otherwise enjoy her interest. Mr. Moystyn agreed with Booth’ in D v. W when she awarded the wife a mere £2,500 saying at page 803: in the result, Booth] felt that all she could do was to award the wife a mere £2,500. I would emphasise the risk of injustice that is caused by delay. The longer the time that passes the more likely it is that documents will disappear and memories cloud, with the result that there is a greatly enhanced risk of the court rendering imperfect justice.”

51. The division of the asset is a two-stage process. The first stage in making the award as we are all familiar, is to calculate the value of the asset as at the time of the trial, but the steps subsequent to this calculation have become blurred over the years following White and White, but what we see now emerging from J v. J and S v. S are more clearly defined steps consequent upon determining the present value of the asset The second stage involves those subsequent steps, which include, but are not limited to, an examination of the events leading to the acquisition or enhancement of the assets and a determination as to whether those events pre-date the marriage, or occurred during the marriage, or after the breakdown of the marriage, in order to determine how that asset should be divided between the parties, if at all Undoubtedly, delay plays a crucial role in such a determination. The longer a party has been allowed to settle into a zone where he or she feels that the passage of time has dulled the senses and the acrimony and contention between the parties have faded into oblivion, the more difficult it is to be suddenly plunged into litigious matters that were thought to have been settled by implication or at least been accepted by the other side. The abrupt awakening of past demons long thought dead by applications brought after protracted periods of dormancy only serve to rekindle animosity and re-open old wounds and should be discouraged By that time parties have changed, the issues themselves become blurred and it becomes more difficult for the court to exercise its discretion.
52. I have no doubt that in the circumstances of the case before me, in order to reach a fair result, the division must reflect the singular effort of the Husband towards the improvement of the matrimonial home, coming seven years after the separation, in circumstances where the marriage was at an end and the Wife was not a full contributor, nor indeed a contributor at all, to the very significant increased value of the enhanced property, and at a time when the children were now adults and independent I am satisfied that these are events that fall within the category of cases in. which the ratio behind an unequal distribution, so eloquently and clearly expounded in the cases above, can be applied. In my judgment, I recognise that the former matrimonial home was born out of the joint efforts of the parties, but it was still only in its embryonic stage when the marriage ended in 1999. The Wife played no part and indeed refused to participate in the property’s full development some seven years after the parties’ separation and the breakdown of the marriage.
53. I am also satisfied that the needs principle in this case plays a crucial role in the outcome and bears a direct impact on the distribution. I have dealt with this in paragraph 54.31 below
54. I turn now to the section 27 factors for further guidance in determining the division of the asset.

 

(i) Resources

54.1.1 At the time she filed her Form 8 in October 2007 the Wife said that she was unemployed, but since then she has been able to obtain intermittent employment as a labourer with the Unemployment Relief Programme. The records provided by the National Insurance Board’s representative Mr. Surendra Jokhan, show that before the Wife left to work in the United States of America, she worked steadily as a labourer during the period 1983 to 1998. Currently, the Wife is not permanently employed and according to the Administrative Assistant to the Executive Manager of Insurance Operations at the National Insurance Board, Ms Sandra Antoine, who also gave evidence at the trial, the Wife would not qualify for a retirement pension at age 60, because she has not amassed the required 750 contributions that would entitle her to such a payment. According to Ms. Antoine, if she were to retire at age 65 the Wife would receive a monthly pension of $2,000 calculated using the current figures, and if she does not work to that age would be entitled to a retirement grant of $12566.88 in lieu of pension.

54.1.2 The Husband alleges that the Wife has a major resource that she did not disclose, and that is her interest in the house at 37 Guanapo Estate Rio Claro, which she shares with her brother. The Husband claims that the Wife is the joint owner of this property together with her brother. The Wife on the other hand, contends her brother is the sole owner of the property and that she loaned him $6,000 to assist in its purchase, but that the sum has since been repaid. Neither party produced any documentary proof or led any evidence touching this Rio Claro property. I make no findings as to ownership or other interest touching this property.

54.1.3 Apart from her occasional employment the Wife has no other form of income available to her. With respect to her earning capacity, when she was away in America, the Wife held a number of jobs, including working in a restaurant, (although I have not been told in what capacity), administering geriatric care, and working as a housekeeper. She has experience in these areas and in her Form 8 in answer to the question “What type of work could you do?” she identified work as a janitor or caring for the elderly. These options are open to her. She has not disclosed what efforts, if any, she has made in her search for employment in these areas, but there is no reason why she cannot now explore those avenues. There are ample opportunities available especially in the area of geriatric care. There has been a recent upsurge of homes for the elderly in Trinidad, where there is a need for both janitorial and geriatric services as well as an increasing demand for those services in private homes.

53.1.4 With respect to the Wife’s bank accounts, Mr. Hayden Joseph who responded to the witness summons submitted three statements for three separate accounts bearing the Wife’s name, two of which are held jointly with the child Rossi. The first of these accounts seems to have been opened in 2004 with a deposit of $3,000. From that time to about April 2006 deposits were made to the account on an average of about $200 to $300 per month The source of the money has not come to light but I would not be surprised ff it were the Wife. In any event there is an abrupt end to these deposits from around 27th April 2006, when it seems that the child began to work and receive a salary. From that time to September 2009 no further deposits are recorded other than salary deposits. In September 2007 the reference to “salary deposit” on the statements was changed to ACH Credit from RBTT” then to ACH Salary from Innovative” both of which I am satisfied refer to salary deposits by Rossi’s, employers I am satisfied too, that this account now bears little connection to the Wife.

54.1.5 The second joint account the Wife holds with Rossi is equally insignificant for consideration as a “resource” to the Wife. The statement produced by Mr. Joseph shows a short-lived account which never had a substantial balance, only averaging around $1,500 in credit, for any given period over its two-year history. From 1st November 2007 there was a steady decline in the account until April 2008, when the last transaction was conducted leaving a balance of only $18.12.

54.1.6 The final account which is in the Wife’s sole name tells a different story. Opened in 1998 with a $16,686 deposit, no significant transactions were conducted, until 16th September 2004, when the statement shows a deposit of $80,000. This corroborates the Wife’s claim that she returned to Trinidad in 2004 with $80,000. There is another healthy deposit of $20,000, six months later in March 2005. The Wife had omitted to mention this sum in her evidence, but from the aggregate sum large withdrawals were made, including:

 

(a)  $10,000 on 21st December 2004

(b)  $5,000 on 1st March 2005

(c)  $40,030 on 7th March 2005

(d)  $3,000 on 18th March 2005

(e)  $7,500 on 4th April 2005

(f)   $30,000 on 5th April 2005

 

for a grand total of $95,530. When asked by Ms. Francis to account for the disbursement of these sums the Wife responded that she could not remember what the withdrawals were for.

54.1.7 On the Husband’s side, he is currently unemployed, having retired about three years ago from the police service. He has used a large portion of his gratuity in cash and loan security, in the amount of $270,576.56 in the completion of the former matrimonial home. This has not been disputed. All that he has remaining of the gratuity fund is $69,500 which is being held as security for the improvement loan taken for the home in 2007. His experience as a Police Officer should make him very marketable in the security industry. Indeed he stated at trial that he has already been instrumental in setting up a fledgling security firm. He alleges that he has not been paid for his services, but intends to find himself work within his area of expertise, if not with the firm he helped to establish, then, with any other institution that would offer him a position He indicated both in his Form 9 and at trial that he is looking for work. I have no doubt that he would soon be employed, given his level of experience and the country’s unfavourable crime situation.

541.8 In addition to his gratuity, the Husband receives a monthly net pension of a little over $5,600. The Husband in answering questions on the Form 9 pertaining to his assets and in particular to monies invested in any bank or other financial institution, said that he had none. This tuned out only to be partially true because in documents produced by Mr. Joseph, it was revealed prior to and at the trial, that as at October 2009 the Husband held the $69,500 mentioned above in Republic Bank Limited (RBL) Money Market Fund on which there is a lien against the two loans amounting to $102,000 taken by him in January and December of 2007. As to his other bank accounts, the Husband has a savings account with the same bank which apparently was opened in 2006 with part of his gratuity proceeds ($100,000) and into which his pension is deposited. There has been a steady depletion of those funds over the years and in October 2009 the account stood at $2.24 in debit. Finally, the RBL representative presented another account bearing the Husbands name being a joint account held with a Mr. David Lemo. No useful information was provided regarding this account but nothing turns on it. The statement revealed that the account was opened in 1999 with a modest deposit of $800. No extraordinary deposits or withdrawals were made, the last active transaction on the account took place in April 2005 and it has been dormant since April 2007.

 

(ii) Needs

54.2.1 This factor is of the utmost significance to this case, because the distribution is directly effected by these needs. The Husband has a roof over his head, but his obligations have expanded to include a common law wife and child. He is in occupation of the former matrimonial home so his housing needs are met. Apart from his domestic outgoings towards his new household the Husband is indebted to RBL in the amount of $59,821 being the outstanding balance of his loan, which is due to mature on 31st January 2012, and against which there is a lien on his RBL Money Market Fund. The Husband’s monthly payment on this loan is $2,418. At the time of filing of his Form 9 the Husband indicated that he owed the Hindu Credit Union $50,000, but no information was produced relative to the current status of the Husband’s account at that institution, no doubt due to the unfortunate turn of events that led to the Credit Union’s demise.

54.2.2 The Wife’s need for housing is not immediate. Although it is recognised that it is preferable that she has a place to call her own, her need for housing is not pressing at this time. It has already been established that she now lives with her brother and there is nothing that indicates that she cannot be accommodated there indefinitely. Further, there is no indication that she is required to contribute to the utilities and other outgoings, and if this is so then she is fortunate to enjoy the kindness of her brother. The most pressing need for the Wife would be steady employment that would afford her secure earnings. The children are grown and while it is expected that parents would want to render financial assistance to their adult children where necessary, obviously this would not be of concern to the court, in the absence of physical or psychological barriers or other reasonable impediments. Accordingly, the Wife’s needs do not extend beyond her own personal requirements. Her Form 8 reveals that her personal monthly expenses amount to $800.

 

(iii) Standard of Living

54.3.1 Standard of living does not play a significant role in this case. The parties began their relationship under very modest conditions and with very little means, which improved slightly over the years. The Wife’s efforts which eventually took her to America did little to improve the parties’ economic circumstances and the house remained largely incomplete for many years. No doubt the monies the parties earned would have been insufficient to afford them a very high standard of living. They were, at most only able to enjoy a moderate lifestyle.

54.3.2 In comparison to their post-separation lives, I am of the opinion that each party has moved beyond the marital status income bracket, but, because their period of separation has been so lengthy, I am also of the view that whatever improvements they might have experienced since the breakdown, were, on each side, of their own making. It is clear from the evidence that at least from 1999 each party was responsible for his or her own affairs, with the Wife sending whatever money she could to assist primarily with Rossi. I only make mention of this because I do not think that after so long a period of separation, that there still remains a responsibility by either party, to maintain the other, in the manner to which they have become accustomed over the last seven or eight years. It is my opinion that too much time has passed for this to be of consequence in this matter.

 

(iv) Age and length o f marriage

54.4.1 At 59, the Husband is only four year older than the Wife. Being a former member of the Police Force he retired at the compulsory age of 55. Since then he has been living on his pension. He will attain the compulsory retirement age applicable to the rest of the working population, as early as next year. This does not preclude him from obtaining employment in the private sector. As stated earlier in this judgment and as indicated by the Husband, he is seeking employment and his prospects are at least hopeful. It is doubtful however, if he will be able to qualify for any further loans, not only because of his age but because he is currently indebted to two financial institutions in the amount of approximately $130,000 for which he is committed for the next two years, at least in the case of RBL There is no evidence as to how Hindu Credit Union’s creditors, of which the Husband is one, are to be treated by its liquidators, but his allegation that he is indebted to this institution remained unchallenged and I accept that he remains so indebted.

54.4.2 The Wife too has reached a point in her life where it may prove challenging to access funding and to my mind she may soon find herself in the same position as the Husband, and by that I mean, looking for employment to supplemental her pension or gratuity. If the Wife successfully obtains employment in a private home as a geriatric care giver, or with responsibility for domestic duties she may be able to work well into her sixties. I hope that I am not being too speculative in making this assumption. I think that there is every likelihood that the Wife could find employment in this sphere before long.

54.4.3 Mr. Jokhan, the representative from the National Insurance Board, explained that the Wife would on be entitled to a monthly pension of $2,000, but to qualify for that she must work to age 65. The Wife has not indicated whether she was willing to continue working to that age, and moreover, she may not be physically capable of so doing, at least not as a labourer.

54.4.4 As far as duration of the marriage is concerned I believe that I have sufficiently dealt with this aspect above (Paras. 30 et al). Anything more will be merely repetitive.

 

(v) Health

54.5.1 The Wife alleges that she suffers from the effects of high blood pressure. She did not elaborate on her symptoms nor did she provide any information or proof regarding treatment, prognosis and the like, but she indicated on her Form 8 that the only extent to which her health affects her, is when she is forced to stay away from work during periods of illness. The frequency with which this occurs was also not mentioned. That apart, she seems to enjoy good health.

54.5.2 The Husband has no health issues.

 

(vi) Contributions

54.6.1 Again I hope that I have dealt with this factor sufficiently enough throughout the judgment.

 

Summary and Conclusions

55. I have read and weighed the evidence as presented to me and I make the following findings of fact: (1) I find that the marriage ended in 1999 when the Wife left for the second time, to go the United States. I would not say that it was as early as her departure in April of that year, but certainly at some time during the course of that year. I find that although the parties were still legally married, there was no substance to the marriage for the period 1999 to 2004 when the Wife permanently returned to Trinidad and therefore in my judgment the marriage came to an end in 1999. (2) I find further, that the former matrimonial home was only one-third complete when the Wife left in 1999. I accept that she financially assisted in the plastering of the walls on that visit, but I agree with and accept the Husband’s evidence as to the stage of the completion of the house at that time over and above the Wife’s. (3) I also find that overwhelmingly, the vast majority of the completion works on the house took place in 2006 when the Husband received his gratuity some seven years after the parties separated. The Wife under cross-examination agreed that it was only when the Husband received his gratuity that there was a rapid and substantial progress towards the finishing. I have taken the value of the house as provided by the valuators and set that figure against the quantum of money spent by the Husband out of his gratuity to calculate that the Husband was responsible for approximately 90% of the cost for the improvement exercise.
56. Although there is a great difference between the value of the house at the time of separation (1999) and the time of trial, all the authorities suggest that it is the valuation at the time of trial that is to be taken into account and that is what I have done. The difference between the post-separation value and the value at the time of trial however, will be reflected in the division. This reflects the departure from equality within the sharing principle mentioned by Charles, J. in J v. J (See above Paras. 43, 45). It is also important to note that while I find that neither the Wife nor the marriage played any part in the later improvement of the asset, that up to the time she left Trinidad in 1999, she was a dutiful wife and mother and that her contribution to the family continued until Rossi returned to Trinidad.
57. In the early years during her absence the Wife sent money through Western Union to the Husband, ostensibly to be paid towards the house, but it is evident from the statement she exhibited in support of this claim that those sums were wholly insufficient for this purpose. I do accept however that those monies were sent for Rossi’s care. As far as her contribution to Rossi is concerned, although I find that she did contribute money to assist in his care, I hold that it was the Husband who was largely responsible for his rehabilitation and recuperation. Furthermore, the Wife admitted that when she found out that the co-respondent was living at the former matrimonial home that she refused to send any money towards the improvement project.
58. This last issue together with (1) the fact that the improvements to the matrimonial home came some seven years after separation of the parties (2) the Wife’s application for ancillary relief coming 11 years after the separation and (3) the Husband’s sole, post-separation 90 per cent improvement to the property are, to my mind, good reason to deviate from an equal distribution of the asset. Further it is accepted that the Husband’s entitlement to the land upon which the house stands without which there would be no asset to divide in the first place, must be given some recognition, although this did not play a significant part in my determination.
59. Lastly, I find that neither the Husband nor the Wife has any means now left to them that would enable, in the case of the Husband, to readily avail himself to facilities that would allow him to raise a lump sum to pay the Wife, because of his age and the fact that a substantial amount of his gratuity has already been injected into the house. The home improvement loan is secured by the balance of the gratuity in the amount of $100,000 which is all that he has remaining of that sum. He is now retired and has the responsibility of a young child and common-law wife. I am acutely aware that while this new family cannot take precedence over the Wife, I cannot ignore these obligations, but I also have to balance that, with the fact that I do not have to concern myself with children of the original union. The Husband has stated that he was instrumental in setting up a security firm, no details of his role or the current status of the organisation were given, but there is a possibility that he may be able to find employment with this firm or with another company or organisation in the security industry. He says he is looking for employment.
60. In the case of the Wife, she still has at least five more years of working life ahead, but I also have to bear in mind that she will not be entitled to any pension benefits unless she continues working to the age of 65. I have not been told whether she intends to exercise the option to retire at that age but, given the fact that she is employed as a labourer, the likelihood of that is questionable.. Barring health, (of which the Wife complains of suffering only high blood pressure) there is no reason why she cannot work until that time privately in another capacity, perhaps doing domestic duties or caring for the elderly.
61. Unlike the Matrimonial Ca-uses Act (UK) “clean break” solutions are not enshrined in our legislation but as practitioners we try to achieve a clean break whenever practicable. However, this may not always be achievable especially in cases where there is little money and the only asset is the former matrimonial home Ms. Sooklal, perhaps in recognition of this limitation suggested that the property be physically divided into two apartments, but I find this may not to be a practical solution for two reasons. First, I have not been supplied with the floor plan nor any expert advice on whether this is a feasible task and with a footprint of only 1,365 square feet the house seems too small to facilitate such a living arrangement. Secondly, and again this relates to the size of the home, I think that living in such close proximity to the Husband and his new family, given the Wife’s alleged unhappiness with the Husband’s relationship with the co-respondent, would, I think, be the cause for a lifetime of discord between the two potential households.
62. Ms. Francis on the other hand has submitted that the Wife should only be entitled to ¼ of the value of the home, but in so doing, all the effort that she would have put into the marriage, including their pre-marital union which blended seamlessly into the marriage, the and even after she went the America, and the fact that their combined pre-marital and marital union was a relatively long one that produced children, would all go by unnoticed ha my view such a very disproportional division would not be at all fair to the Wife and to her contribution during the time that the marriage subsisted. Having said that, that Husband’s equally disproportionate contribution throughout the relationship and particularly in relation to the completion of the house must also be given due recognition.
63. It is my duty to try as far as practicable to find a way to house each party. Fortunately the circumstances here are not critical for either of them. The Husband presently occupies the former matrimonial home with the co-respondent and their daughter and he has been enjoying exclusive possession of the property since 1999. Although this child is not a subject of these proceedings, and bearing in mind that the children of the first marriage are adults, whatever solution is arrived at, I must be careful to preserve a home for this young child if possible. That apart, the market value of the house stands at a modest $450,000 upon which there is an outstanding mortgage in the amount of $85,000. Sale is therefore not a viable option.
64. The Wife lives in a property she shares with her brother, of which the Husband claims she is co-owner. He has produced no evidence to substantiate this claim, and although it is arguable that the $80,000 the Wife brought with her when she returned to Trinidad in 2004 was used to assist in the purchase of this property, especially since she could give no account for the large slims out of this $80,000 disbursed by her, the allegation is nonetheless speculative and any reliance on it is risky. However, I will bear in mind that the Wife is also adequately housed and there is no evidence to indicate that she is at threat of being removed from her present accommodation.
65. I hold that the matrimonial home be divided in the proportions of 3 to the Wife 3 to the Husband and that a lump sum of $150,000 to reflect the Wife’s interest be paid to her. I have also taken into consideration the Husband’s share in the inheritance of his father’s estate, comprising in part, the 20 acre parcel of land in Moruga and his offer of one lot of land from the said parcel of land to the Wife. Bearing in mind the Wife’s uncertain future retirement benefits and in an attempt to achieve fairness and justice for both parties I therefore order as follows:

 

ORDER

(1)  That the Husband do pay the Wife the sum of $150,000 within six months from today.

(2)  Alternatively, the Husband to pay the Wife the sum of $800 per month during their joint lives until she shall remarry commencing the 1st day of July 2010 and continuing on the 1st day of each successive month.

(3)  The Husband to indicate in writing to the Wife by the 1st day of May 2010 which option he intends to exercise.

(4)  It is also ordered that the Husband must do all that is necessary to assist in the estate of his deceased father John Triea being administered and that within one month from the grant of administration or probate of the said estate the Husband shall convey to the Wife out of his share in the said estate, one lot of land more particularly described in CT Vol. 1817 Fo. 443. The cost of the said conveyance and registration to be met by the Wife.

(5)  That the Registrar be directed and empowered to execute the Memorandum of Transfer to give effect to this order in the event that the respondent fails so to do.

(6)  That in the event that the estate of John Triea, the Husband’s father is not administered within one year from the date of this order, the periodical maintenance provided at (b) above shall be increased to $1,750 per month

(7)  For the avoidance of doubt the said increased sum of $1,750 shall be so paid until the said estate has been administered and the conveyance as provided herein has been made to the Wife, thereafter the periodical payments to revert to revert to $800.00 per month.

(8)  That there be liberty to apply.

(9)  That each party bear his own cost.

 

Allyson Ramkerrysinch

High Court Judge