Raishauna Wheatley Petitioner v Lawrence Wheatley Respondent
| Jurisdiction | British Virgin Islands |
| Judge | JOSEPH-OLIVETTI, J |
| Judgment Date | 17 November 2006 |
| Neutral Citation | VG 2006 HC 14 |
| Judgment citation (vLex) | [2006] ECSC J1117-1 |
| Court | High Court (British Virgin Islands) |
| Docket Number | BVIHMT 2006/0014 |
| Date | 17 November 2006 |
IN THE HIGH COURT OF JUSTICE
(DIVORCE)
BVIHMT 2006/0014
Ms. Susan Demers of Price-Findlay & Co. for the Petitioner/Applicant
Mrs. Tana'ania Small-Davis of Farara Kerins for the Respondent
(Family law - divorce - ancillary application by wife seeking discovery of credit card statements from husband who is an additional cardholder on his mother's account and discovery of documents relating to husband's inheritance -whether husband entitled to refuse discovery because a third party is involved - whether discovery is relevant to determining the application for ancillary relief - Matrimonial Proceedings and Property Act, 1995 - Matrimonial Proceedings Rules 1997)
This is an application for discovery and directions in aid of a claim
for ancillary relief in divorce proceedings. I gave an oral decision on the 8 th November, but as some interesting issues arose I thought full written reasons might prove useful.
The wife sought the following relief in her application 1 filed on 16 th October 2006:-
-
(i) an order that Mr. Wheatley furnish all statements of all credit card accounts held anywhere in the world in the name of Lawrence Wheatley, whether singly or jointly held; Anegada Ventures Ltd and the Anegada Reef Hotel, from 2002 to present.
-
(ii) an order that Mr. Wheatley furnish all documents and materials relating to Lawrence Wheatley's share of the estate of Lowell Wheatley.
-
(iii) an order that Mr. Wheatley furnish all documents and materials relating to the income, financial resources, and assets of Lawrence Wheatley and the family assets of Lawrence and Raishauna Wheatley.
-
(iv) an order that the proceedings be stayed until such time as Mr. Wheatley complies with the request for further information.
-
(v) an order that Mr. Wheatley pay the costs of this application.
Mr. Wheatley made some financial disclosure by exchange of letters between Counsel prior to the hearing of this application. Counsel for the Petitioner appeared satisfied with most of the information provided and so the only dispute before the court related to claims (i) and (iii).
Mr. Wheatley, with respect to claim (i) says that he had no credit cards but was an additional cardholder on his mother's account, that she received statements and that she had refused to allow him access to them or their discovery. With respect to claim (iii) he says that his share in the estate of Lowell Wheatley, deceased, is to be paid, pursuant to a family arrangement, by way of a mortgage with Banco Popular and that he and his sister are the borrowers and therefore he cannot make discovery without his sister's consent.
Counsel for the Petitioner in a nutshell submitted that the information sought in both claims was relevant and necessary to assist the court in determining the application for ancillary relief having regard to section 26 of Matrimonial Proceedings and Property Act 1995 ("the MPPA"). Counsel submitted in particular that the credit card statements are relevant to show the standard of living the parties' enjoyed prior to the breakdown of their marriage, a matter the court is specifically mandated to take into account and so to with the inheritance which is a benefit Mrs. Wheatley will lose the chance of acquiring or sharing which falls squarely within section 26(h) of the MPPA. Counsel referred the court to several authorities including Robinson v Robinson 2, Livesey v Jenkins 3, Hughes v Hughes 4, Vanterpool v Vanterpool 5
In reply, Counsel for the Respondent submitted in brief, that Mr. Wheatley did not have a duty to make disclosure as requested as the information sought was irrelevant. Counsel relied on White v White 6 which held that on applications for ancillary relief a distinction must be made between family assets i.e. assets acquired by the parties' efforts during the course of the marriage and assets acquired by one party by gift or by inheritance and that assets acquired by inheritance would only be taken into account in certain circumstances. Counsel urged that the inheritance ought not to be taken into account in these circumstances as the marriage was of short duration (3 years) and that Mr. Wheatley came into his inheritance after the decree nisi was granted. Therefore, Mrs. Wheatley did not have any right to share in the inheritance and accordingly, disclosure concerning the
With respect to the credit card statements Counsel submitted that Mrs. Vivian Wheatley (the husband's mother) had refused to consent to the disclosure of the statements and that Mr. Wheatley could do nothing about that. Counsel also submitted that this information was irrelevant.
Rule 61 of the Matrimonial Proceedings Rules 1997 states that:-' any party to an application for ancillary relief may by letter require any other party to give further information concerning any matter contained in any affidavit filed by or on behalf of that other party or any other relevant matter, or to furnish a list of relevant documents or to allow inspection of any such document, and may, in default of compliance by such other party apply to the judge for directions'.
Further Rule 60 (4) provides:-' at the hearing of an application for ancillary relief the judge shall, subject to rule 62, investigate the allegations made in support of and in answer to the application, and may take evidence orally and may at any stage of the proceedings, whether before or during the hearing, order the attendance of any person for the purpose of being examined or cross-examined and order the discovery and production of any document or require further affidavits'.
And Rule 62 (1) states:- 'the judge shall, after completing his investigation under rule 60, make such order as he thinks just'.
It is apparent from the foregoing that the court has wide powers to order a party to make disclosure for the purposes of ancillary relief and to even compel the attendance of any person for examination.
The court in deciding whether to exercise its power to order disclosure under Rule 61 must first determine whether the information sought is relevant. In this regard section 26 of the MPPA is instructive. It provides that the court must consider the following:-
-
a. the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future,
-
b. the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future,
-
c. the standard of living enjoyed by the family before the breakdown of the marriage,
-
d. the age of each party to the marriage and the duration of the marriage,
-
e. the physical or mental disability of either of the parties to the marriage,
-
f. contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home,
-
g. any order made under section 49
-
h. the value to either of the parties to the marriage, of any benefit (for example, a pension) which, by reason of the dissolution of the marriage, that party will lose the chance of acquiring.
Further, the court is required to have regard to all the circumstances of the case to exercise its powers so as to place the parties, so far as is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each party had properly discharged his or her financial obligations and responsibilities towards the other. (See section 26 MPPA)
It is clear from these provisions that the court in exercising its powers to make ancillary relief orders must have regard to all the circumstances of the case and in this case sections 26 (a), (c) and (h) are particularly relevant to the substantial relief and therefore to this application.
It is well established that both parties are under a duty to make full and frank disclosure of all material facts to the court and that such disclosure is a crucial part of the investigative process in applications for ancillary relief. Unless the court is provided with correct complete and up to date information on matters which it is to have regard to it cannot properly exercise its powers as stipulated by section 26. See Livesey v Jenkins [1985] 1 All ER 105. If disclosure is not complied with the court is entitled to draw adverse inferences, though such inferences must bear a genuine relationship to the available assets. See Hughes v Hughes [1995] 45 WIR 149.
However, before the court can make an order for discovery certain requirements must be satisfied. First, the person against whom the discovery is sought must be a party to the proceedings. Here, disclosure is properly sought against Mr. Wheatley.
The next question is whether or not the documents are in Mr. Wheatley's possession, custody or power. Dunn J in the case of B v B [1979] 1 All ER at para. H states that ' possession means the right to possess a document, custody means the actual, physical or corporeal holding of a document regardless of the right to its possession e.g. a holding of a document by a party as servant or agent of the true owner, power means an enforceable right to inspect the document or to obtain possession or control of the document from the person who ordinarily has it in fact. The requirements of the rules are disjunctive in their operation, so far as possession, custody and power are concerned'.
...To continue reading
Request your trial
-
Petra Cooper (nee' Klvacova) Petitioner v Peter Cooper Respondent
...now and in the foreseeable future. The effect of not doing so is well established as can be seen from In the case of Raishauna Wheatley v Lawrence Wheatley 2006/0014- " it is well established that both parties are under a duty to make full and frank disclosure of all material facts to the c......