Mccullough v Mccullough et Al

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Bertrand, J.
• Judgment Date: 19 February 1987
• Neutral Citation: VG 1987 HC 4
• Docket Number: No. 65 of 1986
• Date: 19 February 1987

High Court

Judge (s): Bertrand, J.

No. 65 of 1986

McCullough

and

McCullough et al

Appearances:

Mr. Archibald, Q.C. with Mrs. Creque for Applicant/Respondent

Miss Penn for Respondent/Petitioner

Family law - Application for alimony pending suit — Wife accused of committing adultery — Whether adultery disentitled her from receipt of alimony — No evidence of adultery, wife entitled to alimony — Assessment of financial position of both parties — Alimony of $600 awarded.

Bertrand, J.

1 A petition for Divorce by the husband was filed on May 6, 1986 on the ground of the wife's alleged adultery. The wife filed an answer and cross-petitioned on the 30 ^th June, 1986 on the ground of the husband cruelty.

2 On 11 ^th of November, 1986 the Respondent filed a Notice of Application for an Order that alimony pending suit in the sum of $1,200 per month be paid to her by the husband from October 15, 1986 by certified Banker's Cheque drawn on a bank in the British Virgin Islands.

3 The husband was requested by the Notice to file an affidavit setting out full particulars of his property and income. In his submissions Counsel for the Respondent submitted that the husband failed to make a full disclosure of his property and income, but his admission on affidavit of his income of $30,000 was proof, after deducting his expenses, that his financial position would allow him to grant alimony pending suit to his wife.

4 The wife filed an affidavit in reply.

5 At the hearing the Court was satisfied with certain matters on the affidavit and agreed with counsel for the wife Respondent, that certain matters in both affidavits which were not clear should be clarified on cross-examination of the respective parties.

6 After the cross examinations and re-examinations counsel for the husband, Petitioner submitted that the wife is not entitled to alimony because of her adultery. In Bromley on Family Law 3 ^rd Edition it is said at pg. 218 that a wife who has committed adultery “will not automatically disentitle her from receiving alimony pending suit for the court may exercise the discretion in her favour on the petition, and so long as she is a competent suitor she is entitled to apply.” At pg. 710 of the 14 ^th Edition Rayden on Divorce Vol. 1 it is said that under the old laws there is no authority where automatic cessation of alimony pending suit was found and in modern law, adultery or any other conduct will not be regarded as relevant unless it is both obvious and gross, so much as that to order one party to support another whose conduct falls into this category is repugnant to anyone's sense of justice. Watchel v. Watchel (1973) Fam. at 90.

7 The purpose of alimony pending suit is to ensure that the wife gets a sufficient allowance until the outcome of the proceedings. The husband has alleged adultery in his petition and the wife has denied it. He has also alleged that the wife is living and co-habiting with the co-respondent and she has also denied it.

8 The Court has a discretion whether to grant or not to grant alimony and it depends on all the circumstances of the case. This is a matter pending before the outcome and we cannot say what the outcome will be. The wife denied the allegation of adultery and she has accused the husband of ceasing to have sexual intercourse with her. The matter of divorce has not been finally settled. And even in a case where the wife has admitted adultery which is not the case here, “Important, as it may be, this is not always a bar to an application of this class”‘ (1927) P. 126Welton v. Welton. In Hosein v. Hosein (1964) 7 W.I.R. 466 cited by counsel for wife, respondent, it was said at page 470 quoting Smith v. Smith (1926) P at pg. 205:

“Alimony……..…is a personal allowance to be paid by the husband for the maintenance and support of the wife. It is neither the property of the wife, nor a debt due from the husband. The wife cannot alienate it, nor can she issue execution for it without the leave of the Court. The court never loses control of it, and can alter it or take it away at any time”.

9 I am of the opinion, therefore, that the wife respondent in this case is entitled to alimony pending suit. Counsel for the husband, petitioner, contended that if an award is made for alimony pending suit that it should be calculated on the bases of their joint income. But in the case of Sykes v. Sykes (1897) VD 306 at pg. 312 cited by counsel for the respondent wife, Lord Ludlow LJ had this to say on the point:

“The object of an application for alimony pendent elite (Pending Suit) is to provide the wife with an income suitable to her position until the suit is heard…………it has been the procedure when the income of the husband is large, not to regard the question of proportion so much as to fix a sum which appears to be adequate, having regard...