Stoutt v Stoutt

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: Liverpool, J.A.
• Judgment Date: 23 January 1995
• Neutral Citation: VG 1995 CA 2
• Docket Number: Civil Appeal No. 10 of 1994
• Date: 23 January 1995

Court of Appeal

Floissac, C.J., Liverpool, J.A., Singh, J.A.

Civil Appeal No. 10 of 1994

Stoutt

and

Stoutt

Mr. Gerard St. C. Farara for the appellant

Mr. Sydney A. Bennett for the respondent

Family Law - Husband and wife — Divorce — Property adjustment — The appeal concerns a two-story building which was formerly the matrimonial home and the land on which it stood — Married Women's Property Act (Cap. 238) — The parties constructed the entire second floor through their joint efforts — Principle equality is equity applied — The land, the cistern and the first floor had been substantially completed when the respondent took up residence — Order by the trial judge in respect of the two-story building set aside — Proportion each party received calculated on the basis of their contributions — The parties are entitled to the equity in the land and building which form part of parcel 27 in the proportion of 75% tot he appellant and 25% to the respondent.

Liverpool, J.A.

1 The parties were married on 10 ^th November, 1973 and lived together for over ten years, The respondent left the matrimonial home for about six months in 1984; and moved out permanently in July, 1985. A decree nisi of divorce was pronounced in favour of the respondent on 19 ^th April, 1906; and on 6 ^th December, 1990 she filed an Originating Summons claiming certain declarations and orders under section 19 of the Married Women's Property Act (Cap. 238) in respect of two properties, including a two-storey building which was formerly the matrimonial home.

2 The matter was heard by Bishop, J. who found that the land on which the building was constructed was owned by the appellant, but that the building was owned by both partes in equal shares. He also found that a separate parcel of land was owned by the parties in the ratio of three-quarters to the respondent and one-quarter to the appellant; and ordered the appellant to pay the respondent's costs to be taxed. At the hearing of this appeal arguments were advanced only in respect of the two-storey building and the land on which it stands.

3 It is clear from the evidence that the building was constructed in two separate and distinct stages, namely the first floor and the second floor. It is also common ground that when the respondent moved into the building on her wedding night on 10 ^th November, 1973, the first floor was partially completed. By November, 1973, therefore, on the evidence of the respondent, the appellant had excavated the land (which was given to the appellant by his father), constructed the foundations and a cistern for the building which contained a concrete roof and consisted of three bedrooms, two baths, living room, dining room, kitchen, laundry room and two porches or patios. The parties constructed the entire second floor through their joint efforts.

4 The learned judge found no evidences of an express agreement between the parties which reflected the actual ownership of, or a beneficial interest in, the property in dispute. In his words “Frankly speaking, I found that the evidence was in many respects, meagre”. So that although he also found that the respondent contributed her savings and some of her salary, there was no evidence to show how much this was. The evidence of the appellant's financial contributions, he found to be equally vague or lacking. He therefore turned for assistance to the reported cases of Pettitt v. Pettitt [1969] 2 All E.R. 365; Rimmer v. Rimmer [1952] 2 All E.R. 863; Chapman v. Chapman [1969] 3 All E.R. 476; Nixon v. Nixon [1969] 3 All E.R. 1133 and Muetzel v. Muetzel [1970] 1 All E.R. 443, and doing the best he could, he declared that the parties have an equal share in the two-storey building, but that the land on which the building stands, belongs solely to the appellant.

5 It seems clear to me that from reading the cases which have been decided on the interpretation of the Married Women's Property Act, that the following principles, which are directly applicable to this case, may be deduced:

• Firstly: Where it is clear from the evidence to whom the beneficial interest in the property in dispute belongs, and in what proportions, the court must give effect to them.

• Secondly: If it is not clear to whom the beneficial interest belongs or in what proportions the principle equality is equity may be applied.

• Thirdly: A spouse who has made a substantial contribution of a capital nature may obtain a share or a further share in the property in dispute. See Redhead v. Redhead (1982) 2 O.E.C.S. Law Reports, 311.

6 In Gissing v. Gissing [1970] 2 All E.R. 780 the House of lords reviewed the earlier authorities, including its own decision in Pettitt v. Pettitt, and laid down clear guidelines which should be applied in cases of this nature. Lord Diplock who delivered the leading opinion said (at page 792) –

“I take it to be clear that if the court is satisfied that it was the common intention of both spouses that the contributing wife should have a share in the beneficial interest and that...