LA Ebanks v KD Ebanks

• Jurisdiction: Cayman Islands
• Judge: (Smellie, Ag. J.)
• Judgment Date: 24 March 1993
• Court: Grand Court (Cayman Islands)
• Date: 24 March 1993

Grand Court

(Smellie, Ag. J.)

L.A. EBANKS

and

K.D. EBANKS

Mrs. E. Maierhoffer for the petitioner;

L. Samson for the respondent.

Cases cited:

(1) Clarke v. Clarke, 1988–89 CILR N–15.

(2) Dinan v. Dinan, 1992–93 CILR N–17.

(3) Foley v. Foley, [1981] Fam. 215; [1981] 2 All E.R. 857, applied.

(4) Gissing v. Gissing, [1971] A.C. 886; [1970] 2 All E.R. 780.

(5) Hetley v. Hetley, 1988–89 CILR N–15.

(6) Martin v. Martin, [1976] Fam. 335; [1976] 3 All E.R. 625, considered.

(7) Martin v. Martin, [1978] Fam. 12; [1977] 3 All E.R. 762, considered.

(8) Miller v. Miller, 1980–83 CILR N–6, applied.

(9) Pettit v. Pettit, [1970] A.C. 777; [1969] 2 All E.R. 385.

(10) Preedy v. Preedy, 1988–89 CILR 90.

(11) Wachtel v. Wachtel, [1973] Fam. 72; [1973] 1 All E.R. 829.

Legislation construed:

Matrimonial Causes Law (Law 9 of 1976), s.18:

‘In dealing with ancillary matters arising under this Law the Court shall have regard first of all to the best interests of any children of a marriage and thereafter to the responsibilities, needs, financial and other resources, actual and potential earning power and the deserts of the parties.’

s.24:

‘Either party to a suit brought under this Law may appeal to the Court of Appeal against any decree or order pronounced or made by the Court in such suit in respect of any matter of law or of mixed fact and law. . . .’

Family Law-financial provision-discretion of court-court has virtually unfettered discretion under Matrimonial Causes Law, ss. 18 and 21 to make appropriate orders-not limited to putting parties in financial position as if still married-to try to satisfy reasonable accommodation requirements of both parties, e.g. resident spouse given matrimonial home may be required to make compensation to other spouse to acquire alternative home

Family Law-financial provision-capital assets-in disposing of matrimonial home, court to consider needs of children as priority, parties” intentions and respective contributions during cohabitation and marriage to acquisition and development of home and to general family expenses-legal title in name of one party not conclusive

The petitioner sought an order for financial provision following her divorce from the respondent by ruling that the entire legal and beneficial interest in the matrimonial home belonged to her.

The petitioner and the respondent lived together for six or seven years before they married during which time the petitioner purchased the land on which the matrimonial home was subsequently built. The petitioner obtained a mortgage for the purpose of developing the property and included the name of the respondent as guarantor. After the marriage they had one child. The petitioner paid the mortgage and the expenses of the home generally from her own income with some assistance from her daughter by a previous marriage. The respondent”s contributions were minimal as he was given to drinking and was not in regular employment. He did, however, make some payments towards the house expenses and assisted with minor improvements. On the other hand, the mortgage debt was increased by the bank”s adding to it the balance of the respondent”s car loan on which he had defaulted.

Among the ancillary matters which had to be determined following the petitioner”s undefended petition for divorce on the grounds of the respondent”s violent behaviour, excessive drinking and financial unreliability and dependence, was the disposition of the matrimonial home. The parties agreed its market value as approximately $95,000 for the realty and $10,000 for its contents.

The petitioner submitted that the entire legal and beneficial interest in the property belonged to her since, inter alia, (a) the property was from the outset purchased by her and registered in her name alone and remained in her name; (b) she had only included the respondent”s name as guarantor to the mortgage loan because the bank required this as

additional security; (c) although living throughout in the matrimonial home, the respondent had made no substantial contribution to the acquisition or development of the property or to the household expenses, and it was she who had had to maintain him. Moreover, because of his irresponsibility, the mortgage had been increased with the result that her payments had increased; and (d) if the respondent did have an equitable interest, it had been extinguished by her having had to assume the full responsibility for the property and by her not seeking an order for maintenance from him.

The respondent submitted that he was entitled to an equitable interest of half or at least one-third the net value of the property on the basis (a) that it was the intention on purchase that he and the petitioner should have a joint interest; and (b) of his contributions towards the original purchase price of the land and to the subsequent construction of the house.

Held, ruling in the petitioner”s favour:

(1) In suitable cases the court would apply the principles adopted by the English courts when making orders for financial provision but the Matrimonial Causes Law, ss. 18 and 24 gave a virtually unfettered discretion to provide for a just distribution of matrimonial assets including the matrimonial home. The court was not obliged, for example, to place the parties in the financial position in which they would have been had the marriage not broken down. In disposing of the matrimonial home, the court could take into account, apart from the priority to be given to the needs of any children of the marriage, the intention of the parties as to their respective interests in it and, irrespective of that intention, the extent to which contributions were made (including during cohabitation) to its acquisition or development and to the general expenses and demands of the family. The incidence of legal title being registered in the name of one party only was therefore not definitive of the manner in which the court might exercise jurisdiction. As a general objective, the court should try whenever appropriate to ensure that the reasonable accommodation requirements of both parties were met and may order a cash payment to one party in respect of his interests in the matrimonial home, if it were apparent that the party given the residential and proprietary rights could easily obtain a second mortgage (page 297, line 38 – page 298, line 34; page 302, lines 26–30;page 302, line 40 – page 303, line 11).

(2) Although it was accepted that the petitioner had been from the outset the one who mainly financed the purchase and development of the matrimonial home, adding the respondent”s name as guarantor to the mortgage loan was an indication that they intended that he should have an interest by virtue of and to the extent of his contributions. Given his subsequent low level of financial contributions towards the mortgage and the absence of any substantial assistance with the development of the property, that interest could be no more than a minor one, to be assessed at no more than one-sixth of the net value of the property. The respondent would not, however, be entitled to a

payment representing the full value of that one-sixth since (a) he had a responsibility to assist in providing a home for their child, of whom the petitioner had custody; (b) it was mainly the petitioner who had maintained the family and carried all the financial burdens during the marriage; (c) the petitioner was not seeking maintenance for herself but continuing to assume full responsibility for the mortgage payments; and (d) the mortgage debt had been increased by the addition to it of a personal loan to the respondent on which he had defaulted and for...