Bromfield v Bromfield
| Jurisdiction | UK Non-devolved |
| Judge | Lord Wilson |
| Judgment Date | 27 April 2015 |
| Neutral Citation | [2015] UKPC 19 |
| Docket Number | Appeal No 0109 of 2013 |
| Date | 27 April 2015 |
| Court | Privy Council |
[2015] UKPC 19
Privy Council
From the Court of Appeal of Jamaica
Lady Hale
Lord Wilson
Lord Hodge
Appeal No 0109 of 2013
Appellant
Tim Amos QC Saima Younis
(Instructed by Simons Muirhead & Burton Solicitors)
Respondent
Michael Hylton QC Marlene Malahoo Forte Melissa McLeod
(Instructed by Sheridans)
Heard on 13 January 2015
It will be convenient to describe the appellant as the wife and the respondent as the husband even though they were divorced in 1998.
The wife appeals against the order of the Court of Appeal (Panton P, Morrison JA and Hibbert JA (Ag)) dated 20 December 2012, by which, subject to a minor proposed variation to which the Board will refer at para 9 below, it dismissed her appeal from the order of Brooks J, sitting in the Supreme Court, dated 6 January 2009.
Before Brooks J were two applications by the wife. The first was an application issued on 3 April 1998 under the Married Women's Property Act. The second was an application issued on 30 August 2006 under the Matrimonial Causes Act for modification (by way of increase) of an order made by Harris J dated 20 October 2000 that the husband should make periodical payments to the wife in the sum of $50k per month during their joint lives or until further order. There had been a third application before Brooks J, namely by the husband for discharge of the order dated 20 October 2000, but the husband withdrew it in the course of the hearing.
Apart from ordering that, in accordance with the husband's own proposal, he should transfer to the wife his interest in the matrimonial home, in which she remained living, Brooks J dismissed her application under the Married Women's Property Act. On her application under the Matrimonial Causes Act he ordered that, also in accordance with the husband's own proposal, he should make to her a lump sum payment of $3m in full and final settlement of all her financial claims against him and that therefore the order for periodical payments dated 20 October 2000 should be superseded.
Before both Brooks J and the Court of Appeal, and in the written argument on this further appeal, there was, in the opinion of the Board, too much concentration on the issues raised under the Married Women's Property Act and too little concentration on those raised under the Matrimonial Causes Act. Both local courts were invited, on inadequate documentary material, to investigate the source of the purchase price of various properties bought more than 20 years previously and to rule on rival versions of what the husband had at that time said to the wife. The effect of English authorities on the constituents of a constructive trust was explored at length. But any success on the part of the wife in establishing a beneficial interest to property would have reduced her entitlement, whether to continued periodical payments or to a lump sum, under the Matrimonial Causes Act. After 1971, when statute first conferred wide powers on the courts of England and Wales to redistribute the property of the spouses following divorce, issues between them about beneficial interests in property under section 17 of the Married Women's Property Act 1882 were generally understood to have become redundant and they were discouraged and fell into desuetude: see Fielding v Fielding, (Note) [1977] 1 WLR 1146. Following the coming into force on 7 December 2005 of the Maintenance Act and of amendments to the Matrimonial Causes Act, in particular to section 23, courts in Jamaica now also have wide powers to redistribute property following divorce. But they also have the powers conferred by the Property (Rights of Spouses) Act. This Act came into force on 1 April 2006 and unfortunately its provisions did not apply to the wife's application under the Married Women's Property Act because it was issued prior to that date: section 24. The Property (Rights of Spouses) Act (which also, and enviably, confers rights on certain non-marital cohabitants) confers on the court following divorce limited redistributive powers in relation to the family home and wider such powers in relation to other property: sections 13–15. It requires the court, in any redistribution of other property, to take into account not only the financial contributions, direct or indirect, which would have been relevant to the creation of an equitable interest in property but other contributions and indeed all other circumstances which the justice of the case requires to be taken into account: section 14(2) and (3). The Board hopes that the limited, difficult and ultimately arid inquiry of the type which has been required of both courts by the wife's application under the Married Women's Property Act will not be required of them in the future.
It appears that the husband is now aged 79 and that the wife became 72 yesterday. They were married in 1977. They had three children, all girls, namely twins born just prior to the marriage and the third born in 1980. In 1978 the matrimonial home at 3 Pinkneys Green, Kingston 6, was bought in the husband's sole name. Prior to the marriage the wife, who had graduate and postgraduate degrees, had been employed in various managerial positions, including latterly in the Jamaican government; but, following the birth of their third child, she gave it up. Thereafter she worked, at least to some extent, in the husband's two businesses. He had a bus business and a hotel business. The former was conducted through a company which became known as Bloomfield Jamaica Ltd and, upon its incorporation in 1980 and the issue of 1555 shares, there was an allocation to the wife of 100 shares, which she still holds. The latter was conducted through a company named Medallion Hall Ltd, which was incorporated in 1984. It seems that at some stage it was intended that the wife should have 2 shares out of 299 issued shares in that company but in the event no shares were issued to her. The company opened the hotel, known as the Medallion Hall Hotel, in 1989 and it was situated on properties at 53 and 55 Hope Road and at 86 Lady Musgrave Road, in none of which did the wife have a legal interest.
In 1992 the husband left the home at 3 Pinkneys Green and the marriage came effectively to an end. In 1995, thus prior to the divorce in 1998, the husband, by way of gift, made a disposition of part of his legal interest in the home to the wife and the three daughters. The Board is surprised that, even after 20 years, the effect of the disposition should not be entirely clear. At the hearing before the Board the wife submitted that its effect was to give an undivided 20% share of the legal interest to each of the wife and of the three daughters and thus to leave the husband with only 20%. The alternative construction is that its effect related only to 20% of the legal interest in all and was such as to divide that 20% interest in five ways, namely 4% to the wife, 4% to each of the daughters and 4% back to the husband himself. Were that to be a correct analysis of the disposition, and without regard to the order of Brooks J for transfer (which has not been implemented), the husband would have an 84% interest in the home; the three daughters together would have 12%; and the wife would have 4%. The important point is, however, that on any view the daughters have some legal interest in it. The evidence does not explain the purpose of the husband's gift.
In her application under the Act the wife claimed a substantial equitable interest, in effect equal to that of the husband, not only in the home at 3 Pinkneys Green and in the three properties on which the hotel was situated but also in three other properties in which the husband had an interest. She also contended that he held his shares in the two companies partly in trust for her. Brooks J reminded himself that the burden of proof lay on the wife. He received extensive evidence and argument, in particular about the source of moneys used, directly or indirectly, in the purchase of all these assets, and he deprecated the paucity of the documentary evidence in that regard. Although in two specific respects he rejected the evidence of the husband, Brooks J found the wife generally to be less credible than him. For example he rejected her evidence that the purchase of the home was funded partly out of her resources and he accepted the husband's evidence that instead it was funded by the proceeds of sale of his pre-marital home in Harbour View. Contrary in this respect to the evidence of the husband, Brooks J found that the wife, who had been made a director of Medallion Hall Ltd, had worked in the hotel; but he held that neither her directorship nor her work gave her an interest in the husband's shares in the company.
In the course of surveying the wife's complaints about the factual findings and the resulting legal conclusions of Brooks J, the Court of Appeal, by a judgment delivered by Panton P with which the two other members of the court agreed, considered in even greater detail the rival evidence about the source, direct or indirect, of the ancient acquisitions. Subject to one point, the court rejected all the wife's grounds of appeal. The one point related to the property at 55 Hope Road which, although being the site of part of the hotel, was owned by Bloomfield Jamaica Ltd. The court held that, inasmuch as the wife held 100 shares (or 15.55%) of the issued share capital in that company, she had a corresponding 15.55% interest in 55 Hope Road and it proposed that the court should so declare. Oddly, when coming a few weeks later to sign the Certificate of Result of Appeal, the Deputy Registrar omitted to include the declaration proposed by the court. As it happens, however, the omission was...
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