Sudda Belinda Knights Nee Ashton of Dasent Cottage v Errol St. Aubyn Knights of Dorsetshire Hill

• Jurisdiction: St Vincent and the Grenadines
• Court: High Court (Saint Vincent)
• Judge: Byer, J.
• Judgment Date: 13 September 2021
• Neutral Citation: VC 2021 HC 33
• Docket Number: SVGHMT2018/0123

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

SVGHMT2018/0123

In the Matter of the Petition of Suddabelinda Knights Nee Ashton for the Dissolution of Marriage

Between:

Sudda Belinda Knights Nee Ashton of Dasent Cottage

Petitioner

and

Errol St. Aubyn Knights of Dorsetshire Hill

Respondent

Appearances:

Mr. Cecil “Blazer” Williams for the Petitioner

Ms. Samantha Robertson for the Respondent

Byer, J.

1 By Notice of Application for Ancillary Relief filed on 19 June 2020 the petitioner sought the following reliefs:

• a. Periodical payments under sections 31(1) (a), 31(1) (b) and 31(1) (d) of the Matrimonial Causes Act.

• b. Lump sum payments under section 31(1) (c) of the Matrimonial Causes Act.

• c. A property adjustment order under section 32 of the Matrimonial Causes Act.

• d. A custodial order under section 64 of the Matrimonial Causes Act.

2 This application however required leave pursuant to Rule 68(a) of the Matrimonial Causes Rules 1977 and an application seeking such leave was filed on 29 April 2021 and was granted on 4 June 2021. Trial of the matter was undertaken on 17 June 2021. It was a short matter, neither side calling witnesses but sought to rely on the affidavits they had both filed in the matter and the cross examination that was undertaken on that date.

3 At trial the petitioner also indicated to the court that she would only be pursuing claims (c) and (d) of the said application namely the property adjustment order under section 32 of the Matrimonial Causes Act and a custodial order under section 64 of the Matrimonial Causes Act. This court will therefore deal with those two issues as raised.

4 In dealing with any ancillary relief application, it is always useful to remind the parties and the court itself that these applications are captured by the provisions of the Matrimonial Causes Act Cap 239 (hereinafter referred to as “the Act”) and in particular the factors that the court must consider in making such orders. Under section 34 these are:

• (a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has, or is likely to have, in the foreseeable future;

• (b) the financial needs, obligations and responsibilities which each of the parties to the marriage has, or is likely to have, in the foreseeable future;

• (c) the standard of living enjoyed by the family before the breakdown of the marriage;

• (d) the age of each party to the marriage and the duration of the marriage;

• (e) any physical or mental disability of either party to the marriage;

• (f) the contribution made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

• (g) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party may lose the chance of acquiring;

5 It is therefore clear that this power is discretionary and in looking at these factors the court is also mandated to consider all the circumstances of the case.

The Property Adjustment Order

6 The petitioner has sought in this regard to invoke the provisions of section 32 of the Act which gives the court the power to make any one or more of the orders provided for by that section. These orders are as follows:

“(1) …

• (a) an order that a party to the marriage shall transfer to the other party, to any child of the family or to such person as may be so specified in the order for the benefit of such a child, such property as may be so specified, being property to which the first-mentioned party is entitled, either in possession or reversion.

• (b) an order that a settlement of such property as may be so specified, being property to which a party to the marriage is so entitled, be made to the satisfaction of the Court for the benefit of the other party to the marriage and of the children of the family or either or any of them;

• (c) an order varying for the benefit of the parties to the marriage and of the children of the family of either or any of them any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the parties to the marriage;

• (d) an order extinguishing or reducing the interest of either of the parties to the marriage under any such settlement, …”

7 The petitioner however did not identify in the notice of application for ancillary relief which of the subsections she wished to invoke and as such the petitioner has run afoul of Rule 74 of the Matrimonial Causes Rules 1977 (Rule 74) which states:

• “(1) Where an application is made for a property adjustment order, or an avoidance of disposition order, the application shall state briefly the nature of the adjustment proposed or the disposition to be set aside and the notice in Form 11 or 13, as the case may be, shall, unless otherwise directed, be supported by an affidavit by the applicant stating the facts relied on in support of the application.

• (2) The affidavit in support shall contain, so far as known to the applicant, full particulars—

  • (a) in the case of an application for a transfer or settlement of property—

    • (i) of the property in respect of which the application is made,

    • (ii) of the property to which the party against whom the application is made is entitled either in possession or reversion;…

  • (b)…

  • (c) in the case of an application for an avoidance of disposition order—

    • (i) of the property to which the disposition relates,

    • (ii) of the persons in whose favour the disposition is alleged to have been made, and in the case of a disposition alleged to have been made by way of settlement, of the trustees and the beneficiaries of the settlement.”

8 However the affidavit of the petitioner in support of the application filed on 19June 2020 sets out what the petitioner seeks by way of her application. At paragraphs 15 to 17 she had this to say:

• “15. The Respondent unilaterally executed a Deed of Settlement dated 25 ^th July, 2018 and Registered as No. 2523 of 2018 in which he purportedly settled the matrimonial home on Sherrol Knights and Ezra Knights with Life Interest to himself and subject to the said Mortgage.

• 16. That I am requesting this Honourable Court to cancel the said Deed of Settlement.

• 17. That I am requesting this Honourable Court to grant me a Fifty Percent Share in the said matrimonial home.”

9 The application is therefore two fold. One that the Deed of settlement executed by the respondent on 25 July 2018 (hereinafter referred to as “the Deed of Settlement”) be set aside and that two she be given a 50% share in the said matrimonial home.

10 In this court's mind, it is clear that in order for the petitioner to obtain the second relief, the first relief with the setting aside of the deed of settlement must be determined.

The Law

11 Under section 47 of the Act, entitled “Avoidance of transactions intended to prevent or reduce financial relief” extensive provisions are set out therein, which empower the court to review and make a determination on transactions entered into, where the intention was to defeat financial relief claimed by either party.

12 Section 47 is therefore set out in its entirety here:

• “(1) For the purposes of this section—

  “financial relief” means relief under any of the provisions of sections 30, 31, 32, 36, 40 (except subsection (6)) and 54, and any reference in this section to defeating a person's claim for financial relief is a reference to preventing financial relief from being granted to that person, or to that person for the benefit of a child of the family, or reducing the amount of any financial relief which might be so granted or frustrating or impeding the enforcement of any order which might be or has been made at his instance under any of these provisions.

• (2) Where proceedings for financial relief are brought by one person against another, the Court may, on the application of the first-mentioned person—

  • (a) if it is satisfied that the other party to the proceedings is, with the intention of defeating the claim for financial relief, about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property, make such order as it thinks fit for restraining the other party from so doing or otherwise for protecting the claim;

  • (b) if it is satisfied that the other party has, with that intention, made a reviewable disposition and that if the disposition were set aside financial relief or different financial relief would be granted to the applicant, make an order setting aside the disposition;

  • (c) if it is satisfied, in a case where an order has been obtained under any of the provisions mentioned in subsection (1) by the applicant against the other party, that the other party has, with that intention made a reviewable disposition, make an order setting aside the disposition,

  and an application for the purposes of paragraph (b) shall be made in the proceedings for the financial relief in question.

• (3) Where the Court makes an order under subsection (2) (b) or (c) setting aside a disposition, it shall give such consequential directions as it thinks fit for giving effect to the order (including directions requiring the making of any payments or the disposal of any property).

• (4) Any disposition made by the other party to the proceedings for the financial relief in question (whether before or after the commencement of those proceedings) is a reviewable disposition for the purposes of subsection (2) (b) and (c) unless it was made for valuable consideration (other than marriage) to a person who, at the time of the disposition, acted in relation to it in good faith and without notice of any intention on the part of the other party to defeat the...