Roseane Vanterpool v Denley Vanterpool
| Jurisdiction | British Virgin Islands |
| Judge | MATTHEW J. Ag,MATTHEW J. Ag. |
| Judgment Date | 21 February 2002 |
| Neutral Citation | VG 2002 HC 8,VG 2001 HC 14 |
| Court | High Court (British Virgin Islands) |
| Docket Number | CIVIL SUIT NO. 29 OF 1999 |
| Date | 21 February 2002 |
IN THE HIGH COURT OF JUSTICE
CIVIL SUIT NO. 29 OF 1999
Mr. O. Ramjeet for the Petitioner
Miss D. Boreland for the Respondent
The Petitioner is 35 years old and the Respondent is 31. They were married on December 6, 1995 but lived together for approximately two years before the marriage. They are the parents of Denlecia Rochelle born on March 12, 1996.
The Respondent obtained a decree nisi for dissolution of marriage on February 2, 2001 which was made absolute on May 15, 2001.
Before the grant of the decree nisi, Benjamin J. on April 5 2000, in his judgment made an order for maintenance pending suit at the rate of $250.00 a month as from January 1, 2000. The other aspects of that order are not germane to these proceedings.
On July 30, 2001, The Respondent applied for leave to apply for ancillary relief not claimed in the answer to the Petition. The relief sought were a lump sum order and a transfer of property order. The application was supported by two affidavits of the Respondent one filed on July 25, 2001 and another filed on October 17, 2001.
The Petitioner opposes the application and in support he also filed two affidavits, one on 13 September 2001 and the other on October 19, 2001. Martha Solomion also filed an affidavit in support of the Petitioner.
The affidavits on both sides to a large extent deal with material which would be relevant for a hearing on the merits.
In her second affidavit, the Respondent, among other things, stated that in answer to the Petition she included in the prayer, a request for an order for periodical payments and any other relief as the Court might deem just. That cannot be disputed.
She stated also that she believes an order for periodic payments takes effect after the grant of a decree absolute and that view was supported by Benjamin J at paragraph 26 of his said judgment dated April 5, 2000.
She further alleged that because the divorce proceedings had been too emotionally draining for her to have all the outstanding issues dealt with at one time, she elected to deal with the issues one at a time and was not aware that it was necessary for her to present all her applications for ancillary relief at the same time.
She did not believe that any injustice would be done to the Petitioner by bringing the application at this time.
In reply to that affidavit of the Respondent the Petitioner stated that he Respondent in her answer to the divorce petition never sought lump sum payment for property adjustment or entered any claim for property settlement.
He stated that since the marriage is dissolved he is no longer required to pay the $250.00 maintenance pending suit which was mentioned above.
He stated that the reasons advanced by the Respondent for failing to include her claim for lump sum are not reasonable to warrant leave and that the fact that she was not aware she had to present all her applications at the same time is no excuse as she had legal representation at all material times.
The affidavit of Martha Solomon is again not germane to these proceedings but to a hearing on the merits.
In her submissions, learned Counsel for the Respondent, referred to Rule 51 of the Matrimonial Proceedings Rules 1997 and to sections 23 and 25 of the Matrimonial Proceedings and Property Act 1995. Counsel also referred to the Fourth Edition of Halsbury's Laws of England Volume 13, parargraph 1081 and submitted that there was no unjustifiable delay in the application and no prejudice to the Petitioner.
Counsel also referred to the case of HASTING V HASTING 1947 2 ALL.E.R. 744 at pages 745 to 746.
Learned Counsel for the Petitioner in his submissions presented to the Court a well documented skelton argument. Counsel to a large extent relied on the judgment of Benjamin J referred to earlier and its implications.
Counsel submitted that the Respondent had never claimed any matrimonial property before this application and in her claim for maintenance the Court took great pains to look at the assets of the Petitioner including certain properties to determine his earnings.
Counsel submitted that the Court no doubt took into consideration that the Respondent did not intend to seek a claim in respect of property and as a result an order was made for her to receive a sum of money per month as housing accommodation.
Let me observe straight away that the order for the housing accommodation was made for the benefit of the child. The order reads:
‘As from April 1, 2000 periodic payments for the housing accommodation for the benefit of the said child of the family until the said child shall attain the age of 16 years or further order at the rate of $500.00 per month’.
It is not disputed that upon a summons for variation of that part of the order by the Petitioner the amount was reduced to $250.00 by Benjamin J on January 24, 2001.
Counsel for the Petitioner further submitted that the Court had a broad look at the issue and never expected a claim for property would have been brought. When this application filed came up for hearing on September 19, 2001, Benjamin J stated:
‘We argued this property and there was no indication that there was any claim in respect of it.’
In paragraph 26 of his judgment the learned Judge stated:
‘The Court is mindful that any order made pending suit will expire upon the decree being made absolute. It is also to be observed that the Applicant in her answer and cross-petition seeks an order for periodic payments which if made, can only take effect from the date of the decree absolute being granted; further, the Court would be empowered to make a lump sum order in lieu of an order for periodic payments if it finds that the circumstances so require.’
I have read very carefully the judgment of the learned Judge and I do not discern anything which indicated that the Judge considered the Respondent's right to property. The judgment was in the context of maintenance for the Respondent and the child.
In the passage cited above it is recognized that in her answer the Respondent sought an Order for periodic payments, which could be transferred into a lump sum if the circumstances so require. These periodic payments or lump sum to take effect from the date of the decree absolute being granted have never been considered.
I cannot help observing in the judgment that the learned judge was in effect saying especially in paragraph 21 that the Petitioner was not frank with the Court:
‘and has done little to take the Court into his confidence…. there is no doubt in my mind that the Petitioner has grossly under-stated his income while grudgingly admitting to his proprietorship of certain assets.’
The Respondent has in her answer claimed a financial provision order within Rule 51(1) of the Matrimonial Proceedings Rules which has not been fully determined and even if she may be considered as not having done so she may obtain the leave of the Court to so to do.
It cannot be disputed that the Matrimonial Property and Proceedings Act section gives the Court the power to hear an application for financial provision on transfer of property even after the pronouncement of the decree absolute.
In Halsbury's Laws of England, Fourth edition, Volume 13 and paragraph 1081 it is stated:
‘In considering an application for periodical payments, the Court may properly take into account as one of the circumstances of the case any delay in making or proceeding with the application and consider whether the party against whom the application is made has been prejudiced thereby in such a way as to make it undesirable to exercise the Court's jurisdiction and make an order in favour of the Applicant.’
In the case of FISHER V FISHER 1942 1 ALL. E.R. 438, applied in HASTINGS, the wife applied 7 1/2 years after the decree absolute for leave to file a petition for maintenance. Henn Collins J refused but in the Court of Appeal it was held that in the circumstances the wife ought to be given leave to apply.
Lord Greene stated in FISHER:
‘If the Court is minded to allow, all that it will be doing will be giving to the making of an application for permanent maintenance. It will not be dealing in any way with the merits of such an application nor will it be tying the hands of the judge before whom the application comes. He will consider whether it is right and proper that any order should be made, and, if so, what that order should be. The husband, therefore, will have every opportunity of putting his case on the merits before the Court.’
In my judgment, the Respondent's entitlement to a lump sum order need not be based on her interest in property. In any event, if there is a power to permit her to apply for ancillary relief even after the pronouncement of the decree absolute it follows that she need not indicate her interest in property before her application.
I find there is no unjust delay in making the application by the Respondent and the Petitioner is not in any way prejudiced by the late application.
In the circumstances, I grant the Respondent leave to proceed with her application for ancillary relief within 15 days. I also order that the costs of this application shall be costs in the cause.
A.N.J. Matthew
High Court Judge Ag.
IN THE HIGH COURT OF JUSTICE
CIVIL SUIT NO. 29 OF 1999
Miss D. Boreland for the Applicant
Mr. O. Ramjeet for the Respondent
The Applicant is 31 years old and the Respondent is 35. They began living together in November 1993 and were married on December 6, 1995. They stopped living together about 1998 or...
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