H v H

• Jurisdiction: Cayman Islands
• Judge: (Levers, J.)
• Judgment Date: 12 March 2007
• Court: Grand Court (Cayman Islands)
• Date: 12 March 2007

Grand Court

(Levers, J.)

H

and

H

A. Akiwumi for the petitioner;

Ms. S. Brooks for the respondent.

Cases cited:

(1) Barclays Bank plc v. Khaira, [1993] 1 FLR 343; [1993] Fam. Law 124, considered.

(2) Gorman (a bankrupt), In re, [1990] 1 W.L.R. 616; [1990] 1 All E.R. 717; [1990] 2 FLR 284, dictum of Vinelott J. applied.

(3) Lambert v. Lambert, [2003] Fam. 103; [2003] 4 All E.R. 342; [2003] 1 FLR 139; [2002] 3 F.C.R. 673; [2003] Fam. Law 16; [2002] EWCA Civ. 1685, considered.

(4) Lloyds Bank plc v. Rosset, [1991] 1 A.C. 107; [1990] 1 All E.R. 1111; [1990] 2 FLR 155; (1990), 22 H.L.R. 349; 60 P. & C.R. 311, applied.

(5) Uzzell v. Uzzell, 2001 CILR N–12, applied.

(6) White v. White, [2001] 1 A.C. 596; [2001] 1 All E.R. 1; [2000] 2 FLR 981; [2000] 3 F.C.R. 555, dictum of Lord Nicholls of Birkenhead applied.

Legislation construed:

Matrimonial Causes Law (2005 Revision), s.19: The relevant terms of this section are set out at para. 2.

s.21: The relevant terms of this section are set out at para. 3.

Family Law-financial provision-assets available for distribution-assets put into marriage, acquired during marriage or bought with income earned during marriage are matrimonial property-excludes property acquired by one party before marriage if no intention by parties to deal with it as matrimonial property

Family Law-financial provision-capital assets-inherited property-court to consider all circumstances surrounding inheritance-party inheriting assets during marriage to keep them if other resources adequate to meet claimant”s needs

The wife sought the division of matrimonial assets in divorce proceedings.

The husband and wife married in London in 2001 and came to live in the Cayman Islands. In the course of their marriage, they had acquired two houses in joint names, one in London and one in Ireland, which they maintained as rental properties. The husband had also purchased a property in 1992 (‘the 1992 property’) in which his mother lived. After the parties separated in 2005, the husband filed for divorce and the wife applied to have the petition struck out for lack of jurisdiction. The Grand Court (Levers, J.) dismissed the application in proceedings reported at 2007 CILR 125.

The court granted the husband”s amended petition for divorce on the ground of two years” separation and the wife applied for the distribution of the matrimonial assets. She alleged that these included the joint properties; the 1992 property; further properties inherited by the husband during the marriage; and pension schemes. The husband conceded that the London and Ireland properties were matrimonial assets but alleged that the inherited properties were not, and nor was the 1992 property as it was beneficially owned by his mother. He also sought the return of a deposit on the wife”s rented home in the Cayman Islands and compensation for a car that he had bought for her.

The wife submitted that (a) the court should award her ownership of the London house as she had a greater connection to London than the husband and, were it to be sold, she would have difficulty obtaining a mortgage to purchase another house due to her more limited earning capacity; (b) she had acquired a beneficial interest in the 1992 property

by, in effect, contributing towards the mortgage, since, although the husband had made the payments, the moneys had come from both his income from their jointly-owned company and the rental income from their London property; (c) although she had failed to declare an interest in the 1992 property and the inherited properties in emails exchanged with the husband following their separation, these were merely negotiations and did not represent a concluded agreement; and (d) as the husband had been having an affair, his conduct was a factor to be considered under s.19 of the Matrimonial Causes Law (2005 Revision).

The husband submitted in reply that (a) he should be given the London property and the wife the Irish one, as he had no connections with Ireland and had only purchased property there because it was close to the wife”s family, but that he should be reimbursed £17,000 for the deposit he had paid on the house there; (b) in the absence of an express agreement that the 1992 property be shared beneficially, she had not acquired an interest in it simply because he had chosen to spend his share of the income from their company on the mortgage payments, and, in any event, it had been bought by him for his mother, who had also contributed towards the mortgage; (c) not only had the wife shown no intention to treat the 1992 property and the inherited properties as matrimonial assets, but she had also agreed to accept $40,000 in full and final settlement of any cash payment; and (d) his conduct should not impact on the relief granted as the ground of divorce was not adultery but two years” separation, and he had also paid the wife”s rent and other expenses since their separation.

Held, making the following financial provision:

(1) The joint properties in London and Ireland were clearly matrimonial assets and, since neither party had, on the evidence, shown a greater claim to the London house, to ensure fairness both this and the property in Ireland would be sold and the proceeds divided between them. Matrimonial property included assets put into the marriage, acquired during the marriage or bought with income earned during the marriage. However, there was no evidence that the parties had intended that the 1992 house be treated as a matrimonial asset and the wife, in particular, had not mentioned it in any of the negotiations. In the absence of an express agreement that the beneficial interest in this house be shared, the court could draw inferences from the conduct of the parties, but only to the extent that it provided evidence of their intentions. There was no conduct by either party during the marriage from which the court could infer an intention that the wife have a beneficial share in the house. The husband had made the mortgage payments and that they had come from their joint company or their rental income was insufficient, without clear evidence of an understanding between them, to give the wife an interest in the property (para. 23; paras. 25–30).

(2) The wife was not entitled to a share in the properties inherited by the husband during the marriage as her needs could be adequately met from the sale of the properties in London and Ireland. Whilst the court

would consider all the circumstances surrounding the acquisition of inherited property, fairness dictated that the person to whom it was given be allowed to keep it if the claimant”s financial needs could be met from other sources. The husband was not entitled to compensation for the car, which had been a gift to the wife, nor for the £17,000 deposit on the Irish property. However, the proceeds of the pensions would be shared equally between the parties and the wife was to return half of the deposit (i.e. $600) to the husband upon leaving the property she rented in the Cayman Islands (para. 24; paras. 31–33; para. 35; para. 37).

(3) The husband”s conduct in allegedly having an affair during the marriage was not such that it would be inequitable to disregard it. In dealing with ancillary relief under s.19 of the Matrimonial Causes Law (2005 Revision), the court had to consider, inter alia, the ‘deserts of the parties,’i.e. the credit or discredit that the parties deserved as a result of their conduct, but this mainly extended to such behaviour as ill-treatment, violence and mental or physical domestic abuse. The husband”s behaviour, whilst not exemplary, had not been so serious that it...