Levers J
IN CHAMBERS
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CAUSE NO: D96 OF 2002
BETWEEN:
NORMAN LEONARDI CARTER
AND:
HILMA LINDA CARTER
BEFORE: THE HON. MADAM JUSTICE LEVERS
APPEARANCES:
Counsel for the Petitioner: Ms. E. Nervik of Nervik & Co.
Counsel for the Respondent: Ms. K. Reid of McKinney Reid & Co.
Heard: February 14, 2005
JUDGMENT
Levers J,
The parties in this matter were married in 1994.
The marriage proved not to be a successful one and
in or about the 18th June 2002 on the grounds that
the Respondent had behaved in such a way that he could no longer live with her, the Petitioner filed for divorce.
The Respondent apparently was unhappy at the decision of the Petitioner to end the marriage and in or about July 2003, tried to kill the Petitioner by stabbing him more than 12 times. The Respondent was charged with attempted murder and found guilty of the crime by the Grand Court of the Cayman Islands. She was sentenced to serve 15 years in prison. She is presently serving time in prison.
The Petitioner now asks for a determination of the matrimonial assets, in order that this matter can be concluded and the divorce finalized. The only matrimonial property consists of undeveloped property described at Cayman Brac West Block 96E Parcel 126, which the Petitioner and the Respondent acquired during the marriage through a loan at
Barclays Bank. The property is in joint names as is the loan.
The Evidence
The Petitioner has filed two affidavits in support of his summons and alleges that he alone was solely responsible for all the monthly payments to the bank and that the Respondent contributed no capital towards the purchase of this property. Indeed, the Respondent herself acknowledges that her contribution was by assisting the Petitioner with household expenses. She further alleges that she baked cakes got an income. The Petitioner's answer to this is that any money that the Respondent made was sent back to her family in Honduras. The Petitioner further alleges that due to the failed attempt on his life, he has incurred tremendous hospital bills and that he is in fact responsible for $5000CI not covered by his health insurance.
He further alleges that his health is not what it used to be and that he was put to such great expense, as a result of her conduct. That his expense is greater than 50% net equity of the land to which she made no contributions whatsoever.
Both parties agree that the land is valued at some $25,600.00. At the time of the filing of the Petition the loan outstanding was CI$12,532.00.
Therefore, the equity in the said property at the time of their separation was $13,068.00. The Respondent urges this Court not to punish her twice for her attack on her husband, which she says, was due to his behaviour and abuse and that she alone was not responsible for the end result of what happened. That is the synopsis of the facts presented to the Court.
Section 19 of the Matrimonial Causes Law (1997 Revision) provides as follows:
In dealing with all 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.
The term "deserts of the parties" means the conduct of the parties and the Court in this jurisdiction has wide discretion ultimately to do what is fair between the parties. In Duty v Duty, Cause No: D44/98, the Honourable Chief Justice held:
"The term deserts of the parties connotes an unrestricted obligation and discretion in the Court ultimately to do what is just between the parties. This is the result to be arrived at by reference to the other factors mentioned in the section and to the relative contributions to the marriage and family; relative benefits already enjoyed and to be enjoyed and, it seems to me - by parity of reasoning - the relative consequences of the conduct of the parties."
Where, in the throes of the breakdown of marriage, the conduct of a spouse causes harm and results in the physical and financial impairment of the other, it must certainly be within the purview of the Court to adjust the awards to reflect that situation in terms of the "deserts of the parties."
In this case, the conduct of the Respondent has been such that it would be inequitable to disregard it. Whilst, the Court is aware that no person should be punished twice for an act, the court in deciding whether the Respondent is entitled to an interest in the matrimonial assets, namely the undeveloped land, must take into account several factors including, the contributions if any made and the conduct of the parties. In this case there are no children of the marriage. It is evident that the marriage was an unhappy one and that the conduct of the Respondent was such that the Petitioner could not live with her. The stabbing incident took place whilst they were separated and
in the throes of divorce proceedings. The Respondent contributed no capital to the purchase of this land. The Petitioner's averment that the Respondent contributed nothing towards the matrimonial home or the improvement to the land is not to be disputed, as there is no affidavit in response to his allegation. In Kyte v Kyte [1987] 3 All ER at page 1041, the wife's conduct was dealt with in the following manner:
For the purposes of section 3(a)(g) of the Act, conduct of a party which it would be inequitable for the Court to disregard when determining an application for ancillary relief, included any relevant conduct during and after the marriage which might have contributed to its breakdown or which it would otherwise be inequitable to ignore, regardless of whether or not the other party's conduct was blameless. The wife's conduct, not only in actively assisting or taking no steps to prevent the husbands suicide attempts when she knew she would gain financially if he succeeded, but also in forming a deceitful relationship with
another man was gross and obvious conduct which it would be inequitable to disregard even taking into account the husband's conduct. The husbands appeal would therefore be allowed and the lump sum order reduced to 5,000.
The English Courts can take account of conduct by reference to express statutory provisions. In this jurisdiction, section 19 governs the orders made by this Court and the court in fact has a wider jurisdiction.
As I have already held that the wife made no contribution to the matrimonial property, the question is - is she still entitled to 50% of the equitable interest, as a result of the husband putting her name on the title? Mr. Collins argues that she is, that there is a presumption of a gift. Mrs. Nervik argues that the factors to be taken into account in the court exercising its discretion in deciding whether the Respondent is to receive a fair percentage in the division of this matrimonial
asset or any percentage at all militates against her receiving any sum of money.
It is difficult to attribute a percentage to the Respondent's exclusive efforts, as the Respondent herself does not allege that she contributed in any way to the improvement or the purchase of the land. What she says is that she paid towards the rent for the house in which they lived and bought groceries and paid some of the utility bills. I hold therefore that her contribution being nothing towards the purchase of this land and her conduct being so gross during the marriage and during the separation that it would be inequitable to give her more than 10% of the value of the land. I am hesitant to deny the Respondent any part of the land due to the presumption of a gift, but the reduction to 10% is I believe equitable both on the evidence of contribution and her conduct. I therefore order that she is entitled to only 10% of
the net value of the land. The motor vehicle remains with the Petitioner. The Respondent has made no claim to any other asset. No order as to costs.
Dated this 4th day of March, 2005
Judge of the Grand Court