Adela v Savy (MA 250/2017 (arising in DC 160/2016)) [2020] SCSC 470 (26 March 2020)

SUPREME COURT OF SEYCHELLES Reportable [2020) sese ...?-l~ MA 250/2017 ... (arising in DC 160/2016) Petitioner Respondent 17) [2020] sese ~\1(27 March 2020). Property. In the matter between: DEBRA SHEILA ADELA (rep. by Mr Nichol Gabriel) and STEVE PETER SAVY (rep. by Mr Joel Camille) Neutral Citation: Adela v Savy (MA250/20 Before: Summary: Heard: Delivered: Govinden Division 23rd July 2019 27th March 2020 J of Matrimonial JUDGMENT GOVINDEN J [I] The parties herein were married on the 29th day of November 2003. Their marriage, which this court dissolved on the 7th of 2017 was blessed with two children born on the 11th of May 1999 and born on the 20th day of February 2006, respectively. The present application is for matrimonial property adjustment. The respondent was duly served with the petition and he chose to respond and he tiled an affidavit in reply and raised a counterclaim. The matter proceeded to an inter partes hearing, with both parties testifying in favour of their case. [2] The Petitioner avers that she is the co-owner of a house situated at Anse des Genets, Mahe, herein after referred to also as "the matrimonial home ", having signed a house purchased agreement with the Government. The Statement of Account of the house purchased was produces in evidence and marked as exhibit A2. It shows that the property is jointly registered in the name of the Petitioner and the Respondent. She avers further that she has contributed substantially in the purchase of this matrimonial home and that she is still paying the loan at 2,000 Rupees per month which was used for the purpose of the house. She aver also that she has worked throughout the marriage and earned revenue that was used to sustain the family and that she maintain the house, the children and the family and paid the housing loan on a monthly basis. She says that she paid for the utility bills, did the cleaning, sweeping, washing and cooking in the matrimonial home and provided for the school needs of the children and their daily stipends. In the circumstances, she avers that in the interest of justice, this court orders that the Respondent is not entitled to a share of the matrimonial home; that the Respondent vacates the house situated at Anse des Genets and any other orders that the Court deems fit in the circumstances of the case. [3] On the other hand the Respondent avers that during the marriage with the Petitioner he worked as a flight attendant earning a monthly salary of RS 9000 and as from around the year 2009 he worked as a custom officer earning a salary of RS7500. He avers further that during the same time he contributed towards the purchase of the property situated a Pointe Larue and that for a period of over one year he paid towards the loan purchase agreement through monthly payment of RS 1828. The said payment being made by way of salary deductions from his salary at Air Seychelles. At that time he claimed that the Petitioner was not in gainful employment. The Respondent avers further that at any other time that the Petitioner had paid towards the housing land (same of which is not disputed) , he paid towards the monthly maintenance of the family by buying food, paying for the utility bills namely water and electricity as per an agreement between him and the Petitioner for her to pay towards the housing loan whi 1st he pay for the family maintenance. The Respondent also state that he also contributed in a sum of RS 38,000 towards expenses to upgrade the kitchen and the apartment. As a result of this the Respondent avers that he equally stated during the marriage towards the family expense and that on that basis he is entitled for a half share in the value of the house up to the date of his divorce with the Petitioner. In his counterclaim the Respondent avers that he is entitled to fifty percent shares in the sum paid for the apartment up to the divorce date of the parties. [4] The parties supported their respected cases during the course of their respective testimonies. She testified that the payment for the Matrimonial Home started on the 28th of February 2011 and that the amount it was purchased was RS 334,000. According to her the Respondent paid the paid for the house loan by the way of salary deductions in the sum of RS 1828 and then stopped, after he was made redundant, on a date that she does not recalled. She then resumed the monthly payments to date. According to her whilst the Respondent was paying the loan she paid the bills; the expenses for the children; for food , but the Respondent purchased for the basic needs of the children and some household expenses in the sum of RS 2000 every month. She further deponed that in 2012 when their relationship turned sour they slept in separate rooms and each bought separate items and met expenses for the survivability of their family, but she bought mostly everything and that the Respondent moved out of the matrimonial house in 2017. The Petitioner disputed the counterclaim and assert that she would pay him only the sum of RS 53800, which she asserts are expenses in regards to tiling of the floor. She testifies that she is also prepared to give the Respondent back his personal belongings like the sofa set; a divider, some pictures; washing machine and the refrigerator. The petitioner finally testifies that she is also ready to refund the Respondent the sum that he has paid on the loan repayment. [5] The Respondent testified the matrimonial home was purchased on the joint decision of both he and the Petitioner, that is why names appear on the house purchase document. Prior to purchasing the matrimonial home they had rented two houses. The first house rent was paid by the Petitioner, whi 1st both of them contributed to the household expenses. Thereafter a second house was rented by them and he paid a rent of RS 2500 per month, whilst both of them met the family expenses. Finally they purchased the matrimonial home in 2011. It is his evidence that it was him who initially paid the loan deductions for the house and that this was done by way of a salary deduction every month until he was made redundant by his employer in 2012, at which to me the Respondent took over the responsibility for the loan repayment. At that time both he and the Petitioner contributed to the payment of the household expenses, including those for the children. That situation remained the same until he was prevented to come back into the matrimonial home after the Petitioner changed the lock of the house. The Respondent claimed that he made certain renovations and upgrading to the house and that this came to the sum of RS 38000. He also claim in fifty percent of h is share entitlement in the val ue of the house. [6] As regards the legal principles applicable to the facts of this case, I have found, upon scrutinizing the case law that it is imperative to consider the intention of the parties in relation to the property in issue before proceeding to make any order in a matrimonial adjustment matter. According to the Petitioner and the Respondent the matrimonial home was allocated to them. The documentation from the Property Management Corporation for the said property was in the joint names of both parties and the same for the loan, effectively, meaning that each owns a half share. It was immaterial to regard the party who paid most of the loan as the one having more share than the other because each one of them were contributing according to their means and capability towards their entity with a common aim. They have been sharing their housing cost after they left the house of the Respondent's mother. Their daily matrimonial responsibilities consisted of a number of activities to be funded jointly apart from that of repaying the loan. It was held in Maurci Vis Maurel SCA no. 1 of 1997 that [7] "It follows that any assets acquired during the marriage does not necessarily mean that such assets are held by such spouse in co-ownership of halfshare each. Spouses can enter into pre-nuptial and post nuptial contracts relating to a property. But when this is not the case, assets owned in the name of each spouse must be regarded as prima facie as such spouse's property unless it can be established that that was not the intention of the party or parties. " [8] Section 20 (1) of the Matrimonial Causes Act (Cap 124) provides that the court may, after making inquiries as the court thinks fit, and having regard to all the circumstances of the case, including the ability and financial means of the parties to the marriage order periodical payments, or lump sum payment to a party to a marriage, or periodical payments or lump sum payments for the benefit of a relevant child or make a property adjustment order under section 20 (I) (g). It was held that the purpose of those provisions of these subsections is to ensure that upon the dissolution of a marriage, a party to the marriage is not put to an unfair disadvantage in relation to the other by reason of the breakdown ofthe marriage and as far as is possible, to enable the party applying maintain a fair and reasonable standard of Iiving commensurate with or to the standard the parties have maintained before the dissolution. See Renaud Vis Renaud SCA No. 48 of 1998. [9] In 2014 the Respondent left the Matrimonial home. This was to be on a temporary basis, as he had been advised by Social Affairs to move out in order to let things cool down, it was meant to give a breather to their relationship that was turning sour. However, when the Respondent attempted to return to his house, he could not as he found that the Petitioner had changed the lock. Further according to him it appears that another male person was residing in the home with the Petitioner. The Respondent has no house of his own, he has found himself living with his parents again and need to start anew. It was for this reason that he left that matrimonial home, it was not of his own volition. consequently ordered by the family tribunal. [J 0] It is for these reasons that the Respondent urges the court to make an order allowing him to have half share entitlement to the matrimonial home, whilst the Petitioner claims the whole property minus some loan repayments made by the Respondent together with cost of some house improvement. [11] Having considered all the circumstances of this case regarding the parties and the relevant children, I now come to the following conclusions. That the furniture and household items admittedly belonging to the Respondent, has to be handed over to the latter, unless he allows the Petitioner to continue to use them. These items consist of a sofa; dividers; a washing machine; some Iightning features; a book shelf and a refrigerator. [12] In this case the court has not been given the benefit of the report of a Quantity Surveyor, which would have greatly assist the court in coming to a determination on the apportionment of the respective shares in the Matrimonial Home. The court note that an attempt was made by the Respondent to get Mr Stanley Valentin to produce such a Report however, this was to no avail. That as it may, I am of the view that this Court is sufficiently empowered under the Act to make a determination, even without such a Report of which its content would have at any rate been only of persuasive authority. The property purchased value was RS334,000, in the absence of a Quantity Surveyor's Report this court will take it that this sum represents its actual market value. Therefore, with each of the parties having an exactly half share, their respective shareholdings would be RS 167,000. [13] As of January 2017 the outstanding sum on the loan was RS 169,653 according to the Petitioner's testimony and with the Petitioner making regular monthly repayments as in March 2020 the outstanding loan amount would be in the sum ofRS 119,472 [14] The parties have both partly paid the loan for the matrimonial property, with the Respondent having contributed up to the sum of RS 53,000, according to the Petitioner's own evidence and the Petitioner, who has paid the lion share since 2014, still paying the outstanding loan amount as of today. [15] The matrimonial home, although not yet transferred into the names of any of the parties or both of them is jointly owned by the two of them. Applying the principles enunciated above and bearing in mind the need for fairness and equity I order that the petitioner being the one living with the relevant children ofthe marriage should be allowed to have the first option to reimburse the Respondent in cash for the latter's half share and his loan contribution in the matrimonial home within a period of 6 months from the date hereof and would thereafter become sole owner thereof. The Respondent's half share would come to SR 167,000 and his loan contribution is SR 53,000. Failing that, the Respondent is allowed a period of 6 months thereafter to reimburse in cash the petitioner for her declared share in the assets together with her loan contribution so far. Which would come to SR 167,000, being her half share and SR 281,000 being her loan repayment and further inherit the outstanding loan balance, and would then become sole owner thereof. Failure herein by the parties shall result into the matrimonial property being sold on the market and each party to have their respective share in the net proceeds after fully repaying the housing loan. [16] In considering the totality of the respective claims in the light of the applicable legal principles I will disregard the claim by the Respondent of the amount he contributed in the renovation of the house, renovation on his part is part of the needs of his family to a decent household, his contribution in that regards is accordingly subsumed in his paternal obligation. [17] .r so order 8