IN
THE HIGH COURT OF SOLOMON ISLANDS
Civil. Case No: 130 of 1999
SALOME PUSAU
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v
PAUL
High
Court of Solomon Islands
Before:
Frank O. Kabui, J
Civil. Case No: 130 of 1999
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Date: of
Hearing: p>th November 2001
Date of
Judgment: 28th November 2001
Mr. D.
Hou for the Plaintiff
Respondent not present
UDGMENT
(Kabui,
J):
pan lang="EN-GB" style="font-size: 12.0pt; letter-spacing: ing: -.1pt">By
Summons filed on 5th September 2001, the Petitioner
seeks the following
orders -
1.
That thperties of the marriage be determined by this Honourable cole court.
/p>
2.
Further and other Orders this Honourable cble court sees fit.
3.
Costs of an incidental to this aation be paid by the Responespondent.
The
Respondas not present in Court to oppose the Petitioner�s Summons.mons. The
Respondent was served with the Notice
of Hearing by Counsel for the
Petitioner, Mr Hou, on 4th October 2001 at the Respondent's
Office at the Telecom Building at Ranadi. It was a personal service effected
on him.
Counsel for the Petitioner sought leave to proceed in the absence of
the Respondent and I granted leave accordingly. This application
is about
the Petitioner's claim to certain properties acquired during the course of
the parties� previous marriage. In
support of her application, the
Petitioner filed an affidavit on 5th September 2001 in which she listed a
number of properties
and details about them. I am sure the Respondent was
served with that affidavit because he appeared before me on 26th September
2001 and sought an adjournment for the purpose of finding a lawyer to
represent him in Court. Amongst the properties
listed in paragraph 3 (a) - (i)
in her affidavit, is a three-bedroom house at Naha situated on Parcel No.
191-039-31.
In paragraph 4 of her affidavit, she declares that she owns a
fibre-glass boat as her own personal property purchased out of
her owns
funds. The Respondent did not dispute this. The fibre glass boat remains her
personal property.
Parcel No. 191-039-31
This is
the story about the house that is now part of Parcel No. 191-039-31. In
1984, the Respondent lodged an application
to the then Solomon Islands
Housing Authority for a three - bed room house. The application was dated
16th May 1984.
In that application form, the Respondent disclosed his
earning capacity as well as that of the Petitioner as his wife. Their
salaries then were about the same. They were
then only
being able to repay $100 or a little more per month if the application was
approved. Parcel No. 191-039-31 was
eventually transferred to the Respondent
on 20th July 1988. The charge created over the property as security for the
loan from the Solomon Islands Housing Authority was also in the name of the
Respondent. He executed the charge on 3rd June
1988. The monthly repayment
instalment was $215.58 paid by deduction from the Respondent's salary. The
parties then opened
a joint account in 1988 into which both paid their
salaries. She was able to meet the cost of housekeeping and other expenses
out the joint account thus filling up the gap created by the deductions from
the Respondent's salary for the repayment
of the loan. In 1993 to 1998, the
Respondent rented out the property for the sum of $1,000.00 per month. He
used all
the money and gave none to the Petitioner who was then teaching on
Malaita. In about 1999, the Petitioner took possession of
the property and
spent $22,060.00 to repair it. The Respondent also owes the Petitioner
$14,000.00 maintenance in arrears.
Intention of the Parties
The
Respondent has given no evidence by way of documents or oral statementement. I am
therefore left with the evidence
of the Petitioner to decide this case. In
this regard, I would do no better than to quote the following paragraphs
from
her affidavit -
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3. to the acquisition of properties described in paragrapagraph 3 hereof, our common
intention was that they should be part
of our family assets in which each of
us is entitled to an equal share. This intention is clear as most of the
properties
were paid out of our family income from which I have contributed.
We have operated a joint account until around 1995 when our
marriage broke
down.
4.
Concerning property described as Parcel rcel No. 191-039-31 at Naha (Honiara)
although it was eventually registered
in the Respondent's name alone, we
have a common intention that it should be a family asset in which each of us
is entitled
to an equal share. This is clear from our joint application for
the property exhibited as �B� hereto. This is further shown
by us operating
a joint account in 1988 straight after entering the mortgage agreement with
the then Solomon Islands
Housing Authority on 3rd June 1988. Although the
monthly instalment of $215.58 (fortnightly at $107.79) was deducted out of
the Respondent's salary, it was only through my contributions to
house-keeping and other expenses that the Respondent
was able to make
instalment payments on the mortgage. Exhibited, as �C� is the mortgage
agreement dated 3rd June 1988.
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14 have no interest in the other properties at home excepexcept the fibreglass boat,
which is not matrimonial property.
As to the property in parcel No.
191-039-31 at Naha, Honiara, I am entitled to a beneficial interest in the
property.
The property was purchased by out joint efforts and for our common
benefit prior to the marriage break down. In view of the
renovations done to
the property as per paragraph 10
hereof
by my own efforts after our marriage broke down I clearly entitled to at
least 80% of the value of the property.
In
favour of the Petitioner aese facts. In the application form for a loan
from thom the Solomon Islands Housing Authority,
the Respondent included the
Petitioner's name and disclosed her salary per month. The idea obviously was
to show a combined
financial strength of both of them to be able to service
the loan if they succeeded in obtaining the loan. This common stand
was soon
translated into action when they opened a joint account in the Bank in 1988
into which their respective salaries
were paid. Exhibit "D" in her affidavit
shows that her salary was substantially higher than that of her husband.
Clearly, her financial support was crucial because without it, the
Respondent would not have been able to service the
loan. In about
1999,
she obtained a loan from her Bank and carried out extensive repairs to the
property unaided by the Respondent. The fact
that the Respondent paid the
loan, had the property registered in his name and executed the mortgage over
the property
are important factors but had it not been for the financial
support provided by the Petitioner, the mortgage could have been
foreclosed-
and the property sold. The Court's duty under section 17 of the Married
Women's Property Act 1882 is well
known in this jurisdiction (see Elizah
Tavake v Hilda Tavake (Civil Case No. 280/1996)). Based upon the conduct
of the parties as stated above, I am satisfied that the intention of the
parties was to own the property in equal shares. I so find.
The
matter however does not end there. The Petitioner claims that the full
ull
ownership of the property be given to
her for the reasons stated in her
affidavit. What she is really saying is that the half share to which the
Respondent
is entitled should be transferred to and in her name also.
Normally, either the Respondent must agree to her demand or she
must buy off
the Respondent's half share. To decide this point, I must turn again to the
Petitioner's affidavit evidence.
In paragraph
3 (b)
to (i) in her affidavit, she listed eight properties which she says are
owned and in the control of the Respondent and
his family on Small Malaita.
The total value of these properties is
$113,000.00.
She also
says that the Respondent owes her $14,000.00 maintenance arrears up to date.
The date of the maintenance order
was
7,
August
1997. I
think the amount of maintenance in arrears is more than $14,000.000. The
number of years the Respondent has not paid maintenance
is now over 4 years
7 months. It is a total of
55
months at the rate of $200.00 per fortnight. The current sum is about
$22,000.00 and continues to increase each month.
The Petitioner says she is
willing to forego a total of
$113,000.00
worth of
properties plus the maintenance arrears of $22,000.00. The loss of
50%
of rental from
1993
onwards would certainly increase the figure of
$135,000.00.
She says
the value of the house on Parcel No.
191-039-31
is about
$100,000.00 plus furniture worth $1,000.00. Her idea is that whatever share
the Respondent is entitled to should
be off-set against the loss of her
benefit in the properties on Small Malaita, loss of rental and her loss in
arrears
so that she has 100% ownership of the house on Parcel No.
191-039-31.
This
idea appears to be reasonable in view of my saying that each of them is
entitled to equal share in the house. However,
I do have the problem of
valuation of the properties on Small Malaita and the house on Parcel
No.
191-039-31.
There is
no independent evidence on this matter. The figures may
well have been inflated to make
the point convincing in Court. The problem is made worse by the lack of
protest by the
Respondent. The reason for the Petitioner's stand in this
regard is also reasonable. In the following paragraphs in her affidavit,
she
said -
15. However, given the fact
that the Respondent has control over most oost of the properties at our home on
Small Malaita
and the rental monies stated above and the other factors
stated in paragraphs 8, 10, 11, 13, 15 and 16, I humbly ask this Honourable
court to grant the whole of the interest in the said property at Naha to
myself. I have undergone several major operations
in the past, which
eventually lead to my termination from employment on medical grounds.
Annexed hereto as �R� is a copy
of a letter to that effect. Currently, I am
still on daily treatment since the last ten years for high blood pressure,
gout, and urine infection. Annexed hereto as �S� is a medical report
recently made on 18th August 2001. Given the constant
need to attend to a
monthly review by Doctors and for the purposes of getting proper
prescriptions it is essential that
I remain in the said property.
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16. I cannot live at my home
village in Small Malaita in view of the above face factors, which have further
aggravated
my already handicapped body as a disabled polio victim.
Similarly, my former husband has left myself and 5 dependant children
who
need a house to live. These children were adopted in custom prior to our
divorce. I humbly ask this Honourable court
to grant the whole of the
beneficial interest in the said property to myself and dependent children.
Also, the fibre-glass
boat which is not matrimonial property but is now
solely under the control of the respondent's father.
I think in these paragraphs,
she is asking for a �clean break� to give her a sense of cety and
security for hfor herself
and the children in her custody. She has given up on
the recovery of her maintenance arrears and simply converts that benefit
to
another use for her benefit. This sort of case first arose in Wachtel
v Wachtel [1973] EWCA Civ 10; [1973] 1 A.E.R. 829 where Lord Denning MR at page 841
said, ...
Converselppose the
husband leaves the house and the wife staysstays in it. If she is likely to be
there indefinitely,
arrangements should be made whereby it is vested in her
absolutely, free of any share in the husband; or, if
there are children, settled on her and
the children. This may mean that he will have to transfer the legal title to
her.
If there is a mortgage, some provision should be made for the mortgage
instalments to be paid by the husband, or guaranteed
by him. If this is
done, there may be no necessity for a lump sum as well. Furthermore, seeing
that she has the house,
the periodic payments will be much less than they
otherwise would be�...
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Hanlon v Hanlon
[1977] EWCA Civ 10; [1978] 2 A E R 889 was a similar case where at page 894, Lord Ormrod said,
...�The only other comment I would make about the background is that
so far
from this being contrary to anything that was aid by this court in
Wachtel v Wachtel the court, as appears clearly from the judgment of
Lord Denning MR, contemplated that in a situation like this one of the ways
of solving the problem would be to transfer the home to the wife and to
relieve the husband, so far as it was possible
or reasonable to do so, of
the responsibility for making periodical payments. Of course, the court was
not laying it
down as law, or as a rule of practice or anything of the kind;
it was set out there as one of the possible solutions, and one
of the
possible ways of meeting the requirements of s 25 in this type of case, and
in my judgment it is very much more
likely to produce in many cases a fair
and just result... ...... ... ... ... ... ... ... .
Again,
in Dunford v Dunford [1980] 1 A.E.R. 122, Lord Denning Ming M R at
125 said, ...
�It
seems to me that the judge made his order in accordance with the modern
principle of the 'clean break' so that both
parties will know hereafter
exactly where they stand. At all events, subject to the variation, which I
have indicated,
it seems to me that the order of the judge was right, and I
would dismiss the appeal and, incidentally, the cross-appeal. I
do not think
the wife should have this house vested in her completely as she wanted�...
However,
the cases havwn that the �clean break� approach adopted by the Courts
ts
nowadays are not always resolved in
exactly the same way. The final
resolution of the dispute is always the result of the facts in each case in
the interest
of justice.
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As I
have already said, the Respondent's side has not been put to the Court. He
has however remarried and has a family.
He is now an employee of Solomon
Telekom Company. I assume he is living in a Company house or a house rented
by his employer.
His monthly earning and expenses are not known. The fact
that he did. not appear in Court to oppose or accept the Petitioner's
Summons worries me. One view is that silence means consent on his part. The
other view is that he is prepared to accept
whatever the Court decides in
this case. Yet, another view is that he does not consent. The loan was for
15 years and
would have been paid off by 1999. The Petitioner is a disabled
person whose doctor�s advice is that the need to continue taking
medication
for life requires that she lives close by to be able to
have easy access to the
National Referral Hospital in Honiara to receive medical advice and review
of her medical condition.
She has lived in the house with 5 adopted children
since 1999. I am also concerned about the Respondent losing his property
interest in the house by the stroke of the pen if I give all to the
Petitioner. I think paragraph 2 of the Petitioner's
affidavit is pertinent
in this regard. This paragraph states, ...
�Attempts to have our
matrimonial properties settled out of coas now proved unsuccessful�...
This paragraph speaks for
itself. Clearly, the Respondent dot agree to the property sety settlement
proposed by the Petitioner.
He opposes it. I think this case should be
treated on the basis of the "clean - break" approach developed and adopted
in. England by Lord Denning M.R. I am tempted to do this in this case.
However, there is problem. It is that the �clean-break�
approach developed
in England and emulated by Lord Denning M.R. in Wachtel v Wachtel
cited above and subsequently applied in subsequent cases was based upon
section 4 of the Matrimonial Proceedings and
Property Act 1970 of the United
Kingdom. In terms of section 76 as read with Schedule 3 to the Constitution,
this Act
does not apply to Solomon Islands because it came into force prior
to
1st
January, 1961. Whilst I
regret that, I must return to section 17 of the Married Women's Property Act
1882 and apply it.
In this regard, I have already decided that the
Petitioner is entitled to half share in the property on Parcel No.
191-039-31.
The question now is to decide whether or not she would continue
to live in the house. I do not have the power to transfer the
property to
the Petitioner absolutely or with conditions. In Cobb v Cobb [1955] 2
A.E.R. 696, Lord Denning did not rule out the possibility under section 17
of the Married Women's Property Act 1882 if an order being
made by the Court
allowing the wife to remain in the matrimonial home depending upon the
circumstances of the case. At
page 699, Lord Denning said, ...
�The second question is
whethe judge was right in ordering, as he did in this case, a sa a sale with
vacant possession,
and in aid of it that the wife should be evicted. I do
not think so. Apart altogether from the fact that she was co-owner of
the
house with him, she is his wife. It may be that she is an entirely innocent
party; if so, his duty as a husband is
to provide a roof over her head, and
it would not be right for her to be turned out into the street. As co -
owner she
is in an even stronger position; she cannot be turned out unless
the court thinks it right to order a sale, and this is neither
the time nor
the occasion for such an order. The matter can best be considered by the
matrimonial court when it comes
to deal with alimony or maintenance. That
court could, on proper application being made, order a sale, but might think
it right to let the wife stay in the house with a reduction in the
maintenance which would otherwise be payable by the husband"...
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In this case, there is no
evidence to suggest that the Respondent is demanding the Petitioner to
vacate the property since
occupation by the Petitioner in 1999. Maintenance
is one of the issues raised here though not directly but it does bear some
weight in the consideration of the Petitioner's request to control the
possession of the house. The Respondent may well
feel that the Petitioner
can continue to occupy the house until her death or until she sells it in
order to move to another
place. This is not an easy case to decide in the
absence of clear evidence of the intention of the Respondent. Doing the best
I can in this case, I would order that -
1.
The fibre glass boat being the property of t of the Respondent be returned to her
within 60 days.
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2.
The Petitioner is entitl half share in the propertyperty on Parcel No.
191-039-31.
3.
The Petitioner and the children continue to octo occupy the house until her death
or until such time she sells the
house upon which the proceeds of sale be
divided equally between them. I make no order as to the properties on Small
Malaita. The parties are at liberty to apply to the Court for an order as
the case may be. Cost be in the cause.
F.O.
bui
Judge
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