Decomarmond v Decomarmond (MA 210 of 2024 (Arising in DC 11 of 2023)) [2024] SCSC 225 (13 December 2024)

SUPREME COURT OF SEYCHELLES Page 1 of 13 Reportable MA2 10/2024 (Arising in DCll/2023) Applicant In the matter between: AISHA DECOMARMOND (represented by Mr. Divino Sabino) versus ALAIN DECOMARMOND Respondent (represented by Mrs. Samasundaram Rajasundaram) Neutral Citation: Decomarmond v Decomarmond (MA210/2024) 13th December 2024 Before: Summary: Adeline J Application for leave to appeal out of time for Division of Matrimonial property Heard: By submissions Delivered: 13th December 2024 This application is allowed, and accordingly, the Applicant is granted leave of this Court to file her application for division of matrimonial property out of time. FINAL ORDER RULING ON MOTION Adeline j Page 2 of 13 INTRODUCTION [1] This is a ruling on motion, on notice, brought by one Aisha Decomarmond of Au Cap, Mahe, Seychelles ("the Applicant") who was the Respondent in the divorce petition filed as DV11/2023 against one Allain Decomarmond of Mr. Samasundaram Rajasundaram ("the Respondent") who in DV 1112023was the Respondent. By its motion the Applicant applies to this COUltpursuant to rule 20 of the Matrimonial Causes Rules ("the Rules") for leave of this COUlt to file a petition for division of matrimonial property against the Respondent outside the limitation period prescribed by law. [2] The application is made under the Rules that remain inforce although the parent Act namely, the Matrimonial Causes Act has since been repealed by virtue of Section 8 (d) of the Civil Code of Seychelles (Consequence of Enactment Act, 2021. The law, as it now stands, the relevant statutory provisions governing matrimonial property adjustment order or division of matrimonial property after divorce, which ever terms one wishes to use, are prescribed under the provisions of the Civil Code of Seychelles Act, 2020 (Act 1 of2021). [3] To put the issues that would be addressed later in this ruling in perspective, reference has to be made to Rule 20 of the Matrimonial Causes Rules which is couched in the following tenus; "20 No pleading shall befiled out of time without leave. Application for leave shall be by motion supported by affidavit. There is in support of the application an affidavit sworn by the Applicant. " [4] The Applicant, in compliance with rule 20 of the Rules, has found it necessary to apply for leave of this COUltgiven the fact that it is barred by virtue of rule 34(1) of the Rules from making an application for a division of matrimonial property having not done so two months after the conditional order of divorce was made absolute on the 11th April 2023. Rule 34(1) of the Rules is couched in the following terms; Page 3 of 13 "34(1) An application for periodical payment or a lump sum payment in accordance with rule 4(J)(b) or (c) in relation to property in accordance with rule 4(1), (f) (h) (i) or (j) where a prayer for the same has not been included in the petition for divorce or nullity of marriage maybe made by the petitioner at any time/or appearance to the petition, but no application shall be made later than two 1170nthsafter order absolute except bv leave. (Underline emphasis is mine) " PLEADINGS AND AFFIDAVIT EVIDENCE [5] In the affidavit in support of the application, inter alia, the Applicant deposes as to why it failed to make the current application within the prescriptive period of two months from the date the conditional order of divorce was made absolute. Most relevant for the purpose of determining this application are the following averments; "5. After the conditional divorce in February 2023, I was left emotionally and psychologically drained. Divorce is a significant trauma, and I needed time to process it. The Respondents seemed to approach the divorce with relative ease and be able to move on quickly due to his familiarity with divorce, as he has gone through it before - this was not the case for me. For the Respondent, a marriage coming to an end may have been a routine process and not significant for him, but for me, it was a deeply emotional and significant event. I could not simply moveforward without allowing myself the time tofully heal and process it. 6. The Respondent's ability to move on quickly is in stack contrast to my experience, where the emotional and psychological impact was profound, and I required a break abroad to begin processing it all. Therefore, I was also absent from the country to undertake any legal proceedings. 7. In June/July 2021, I learned that the Respondent had already started a new family with a new partner and having a child. This revelation was deeply unsettling and only added to the emotional toll I was already experiencing. The impact was so significant that it set back even further in my readiness to deal with the property entitlement. Page 4 of 13 8. The psychological trauma of seeing my former partner move on so swiftly left me in a state where I felt completely unprepared to address the property matters tied to our marriage. Rushing into this process without proper emotional grounding would have been unwise. 9. From August to October 2023 I was focussed on an important exam that required my full attention. Dealing with the emotional baggage of the matrimonial property settlement while preparing for this exam would have been detrimental to both my mental health and my performance. I chose to prioritise my professional commitments believing that time would help to heal the emotional wound, making a more rational discussion possibly later on. 10. As 2023 was coming to an end, in an effort to settle matrimonial property matters amicably, I reached out the Respondent and invited him to a meeting at Kafe Kreol, Anse Royale on 17th November 2023. The Respondent attended. Despite my continued efforts to approach the situation with cooperation and courtesy, the Respondent was not inclined to extend the same courtesy. I was hoping that time would have healed wounds at least on my end so that we could reach a fair settlement. I didn't want any demands or decisions to be made out of spite. I even offered the Respondent the opportunity to set forth what he believed was a fair settlement, but he refused to come to any fair solution. 11. Therefore, I sought legal advice to initiate division of matrimonial property legal proceedings. The delay was not due to negligence but was a result of significant emotional distress, an attempt to reach an amicable out of Court resolution, and necessary professional commitments. 12. I have come to learn that the Court of Appeal has sought to encourage amicable settlements of matrimonial property cases. I am still open to this, but this would require the formal process to be allowed in order for this matter to be resolved. 16. There are therefore outstanding property issues between the Respondent and I that necessitate legal proceedings to be resolved. The Respondent is aware of the need to resolve our property issues and met with me on the 17111 November 2023 to discuss the same. That to date, there has been no building erected on land registered as V20053, as such, the delay in this application would not prejudice the Respondent with regards to any developments on the said property. " Page 5 of 13 [6] In reply to the application, the Respondent raises three preliminary points of objections, the gist being the following; (i) that the application being a miscellaneous application should arise from a main case (MAI3712024) which has since been withdrawn, and therefore this application is not maintainable in law. (ii) that without the main case, this application, (MA21012024) on merits, cannot stand and has to be dismissed, and (iii) that the notice of motion is defective given that the application is for "leave to proceed", when leave to proceed with such application is unnecessary, as rather, the delay has to be condoned by the Court. [7] On the merits of the application, in its deposition, the Respondent inter alia, avers the following; "3. That I verily believe that the averments made in paragraph 5 of the affidavit dated 2nd August 2024 are not entirely correct while the parties have separated for more than one year prior to the divorce, thus myformer wife by virtue of the long separation has accepted the effect of divorce well prior to the pronouncement of the Court. I believe it is therefore factually incorrect to aver that the divorce caused a trauma on the Petitioner and she was psychologically drained. The reasons set out inparagraph 5 of the said affidavit are purely concocted for the purpose of condoning the delay. 4. The Petitioner is put to strict proof of what she really meant to aver that I moved on quickly as against her alleged experience and her absence from the Republic if at all it is correct and subject to proof that caused delay is again devious whilst she engaged her attorney for the divorce proceedings who appeared for her and conveyed his client (the Petitioner herein) consent for divorce, thus it is not correct that she does not have any background of legal advice. Page 6 of 13 5. The averment of paragraph that I had already started a new family is highly irrelevant to the issue in this petition relating to her delay while it is my personal and private life that I am entitled to at all times. I am advised that my private life pursuant to the divorce has got nothing to do with her delay while my life does not contribute directly or indirectly, and any reason for her delay. 6. That I wish to repeat the averments of paragraph 4 and 5 above, and the Petitioner is put to strict proof of the alleged psychological trauma and that trauma cause a direct delay in her application tofile the application for settlement of matrimonial home. 7. that I verily believe that the Petitioner herein had the knowledge of the necessity to claim share in the matrimonial home but on her own averment that she had allegedly focussed on her exams thus failed to prioritise the current application. That I am advised, that the Petitioner's own and self-serving decision would not over power the provisions of law, and there is no room for equity given the current condition that the law needs to be complied with, especially when the law is clear in terms of time limit to file such application. 8. That I sincerely believe that this Honourable Court needs to study and ascertain the time delay between November 2023, the date of the meeting between us and the date May 2024 the date of the withdrawn of the main petition MAJ3712024. That the Petitioner I am advised, would have resorted to filing any application in November or December 2023 itself when it became known to her that the matter could not be resolved while the Petitioner abruptly failed to satisfy this Honourable Courtfor the delay between November 2024 and May 2024. 9. That if ever I refused as she claims in paragraph 10 of the affidavit, I believe that nothing prevented her from filing the necessary application forth with. 10. That I am advised that the suggestions of the Seychelles Court of Appeal in settling the matter amicably when there is no prima facie case between the parties and the dispute on the ratio of shares but certainly not on any matter when there is no case at all sustaining against the other party. 11. That I am legally advised, that all the averments raised in paragraph 13 to 16 are matters in the main cause, namely, the application for share in the matrimonial home and or property adjustment while the current application is for leave to proceed, thus the averments of paragraphs 13-16 are totally irrelevant. Page 12 of 13 over a year as the major impediment, as well as his proposition that the Petitioner has not shown good cause to be granted leave. It is observed, that learned Counsel's emphasis is on the failure to adhere with the time limit. Learned Counsel doesn't address the crucial issues of substance that is the core of the dispute between the parties. It is undisputed that the delay is over a year. However, given that this is a case for division of matrimonial property, the question that arises is should the Petitioner lose her constitutional right to property amid the new legal regime, specifically Section 259(1) of the Civil Code of Seychelles Act which makes her entitle to equal share of the matrimonial property. [25] The fact that the Petitioner attempted to resolve the dispute between her and the Respondent amicably is very significant because it shows that the Petitioner has been willing all along to settle the dispute outside the COUl1,with some interest by the Respondent who was prepared to meet with her albeit without a successful outcome. At this juncture, one of the key issues for consideration, is whether by not granting leave to the Petitioner, that would resolve the matrimonial property dispute between the parties and brings finality to the dispute in a fair and equitable manner. Inevitably, the answer is that it would not. As in the Gangadoo case (Supra) the Petitioner resorted to Court proceedings when it realised that the Respondent would not settle the dispute amicably. By attempting to resolve the dispute amicably, the Petitioner acted to her detriment which can only be addressed by granting her leave to file her petition out of time. [26] Therefore, I am of the view, that the indulgence of this COUl1is called for in the exercise of its discretion to allow the Applicant to file her application out of time, which if pursued, would allow the parties to find a resolution and bring about finality to their dispute over their matrimonial property for a clean break. In coming to that decision, I have given due consideration to the property rights of the parties which in my considered view, ca1U10tbe lost simply because time has lapsed. This is not an Applicant who has been inactive and has allowed time to lapse. Rather, it is an Applicant who wanted to resolve the dispute amicably and has made the necessary efforts to achieve that objective. Page 13 of 13 [27] Leamed Counsel for the Respondent has focussed his attention on factors derives from our jurisprudence which the Court ought to take into account when determining applications to appeal out of time in other type of cases. As much as those factors are perhaps relevant for consideration when deciding whether or not leave should be granted to file application for division of matrimonial property out of time, recent case law such as Hossen vs Choppy (SLA 14 of 2022) [2023], suggests, that the COUl1should also look at the bigger picture. [28] In the final analysis, therefore, this application is allowed, and accordingly, the Applicant is granted leave of this COUl1to file her application for division of matrimonial property out of time. Signed, dated and delivered at Ile du Port 13th December 2024.