Scatliffe v Scatliffe (British Virgin Islands)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Wilson |
| Judgment Date | 12 December 2016 |
| Neutral Citation | [2016] UKPC 36 |
| Docket Number | Appeal No 0059 of 2015 |
| Court | Privy Council |
| Date | 12 December 2016 |
[2016] UKPC 36
Lady Hale
Lord Wilson
Lord Carnwath
Appeal No 0059 of 2015
Privy Council
From the Court of Appeal of the Eastern Caribbean
Supreme Court (British Virgin Islands)
Appellant
Gerard St C Farara QC (Instructed by Charles Russell Speechlys LLP)
Respondent
Nigel Dyer QC Juliet Chapman (Instructed by O'Neal Webster)
THE OPINION OF THE BOARD WAS DRAFTED BY
The husband (as it will be convenient to describe him notwithstanding that the parties are divorced) appeals against an order of the Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands) dated 16 September 2013. Before that court were an appeal by the husband and a cross-appeal by the wife (as it will be convenient to describe her) against an order for ancillary relief made in favour of the wife by Hariprashad-Charles J in the High Court of the Eastern Caribbean Supreme Court (British Virgin Islands) dated 3 January 2012. The Court of Appeal (Baptiste JA, Blenman JA and Mitchell JA) dismissed the husband's appeal and, to a modest extent, it allowed the wife's cross-appeal.
Unfortunately the husband chose to represent himself both before the trial judge and before the Court of Appeal. As a layman, he inevitably betrayed limited understanding of what was relevant and, on appeal, of his inability to give his evidence again. The extensive transcripts of the proceedings show an admirable degree of patience and courtesy which both courts extended to him. Before the Board, however, the husband has been represented by Mr Farara QC, who has presented the appeal with fine judgement, eloquence and charm. The Board did not call on Mr Dyer QC who, with Ms Chapman, has represented the wife and indeed who, like her, has nobly done so without fee.
The husband is now aged 70. He has diabetes and in 2009 he had the misfortune to suffer the amputation of his left leg and confinement to a wheelchair. He lives in an apartment at Parcel 195, Block 2938B, Road Town, Tortola.
The wife is now aged 63. She lives in an apartment at Parcel 38, Sand Box Road, Road Town.
The parties were married in 1971 and almost immediately they began to make their home in the apartment in which the wife continues to live. They have two children, namely Derwin, born in about 1972, and Derecia, born in about 1977. The husband has two other sons, presumably born prior to the marriage. In 2009, notwithstanding the husband's defence of her suit, a decree of divorce was granted to the wife; and soon afterwards, pursuant to an order which gave her the exclusive right to occupy it, the husband vacated the home.
The governing statute is the Matrimonial Proceedings and Property Act 1995. Part II is entitled "Maintenance and Related Matters" and comprises sections 22 to 42, which bear a reasonably close relationship to sections 21 to 38 of the Matrimonial Causes Act 1973 in force in England and Wales. In particular the power in section 23(1)(c) of the 1995 Act following divorce to order payment by one party to the other of a lump sum is almost identical to the power in section 23(1)(c) of the 1973 Act; and the power in section 25(1)(a) of the 1995 Act to order a transfer of property from one party to the other is almost identical to the power in section 24(1)(a) of the 1973 Act. Like section 25(2) of the 1973 Act, section 26(1) of the 1995 Act specifies matters to which the court must have regard in deciding whether, and if so how, to exercise its powers under sections 23 and 25. There are considerable similarities between the matters specified in the two subsections. For reasons which will become apparent, the Board would stress, in particular, the obligation, common to limb (a) of both subsections, to have regard to "the income, earning capacity, property and other financial resources which each of the parties … has …". Indeed limb (f) of section 26(1), which requires regard to "contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home …" is also broadly similar to limb (f) of section 25(2). But there is one substantial difference between the two subsections. For, while the concluding words in the original version of the subsection in the 1973 Act were omitted in the version substituted by section 3 of the Matrimonial and Family Proceedings Act 1984, they remain in section 26(1) of the 1995 Act. They oblige the court so to exercise its powers
"as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other."
In the course of her judgment the judge wisely set out section 26(1) in full. There is no doubt that she recognised the need for her to have regard to such of the specified matters as were relevant, therefore including the ages of the parties and the husband's disability, and to comply with the concluding obligation.
In parenthesis the Board adds that Part IV of the 1995 Act, entitled "The Matrimonial Home", incorporates provisions which entitle the court to regulate occupation of a matrimonial home and to make other orders in relation to it. Equally the Married Women's Property Act (passed in 1887) includes at section 19 a provision, closely analogous to section 17 of the Married Women's Property Act 1882 in England and Wales, which enables the court in a summary way to determine issues between husband and wife as to the ownership of property. The Board was concerned to note submissions in Mr Farara's written case to the effect that:
(a) the judge had wrongly failed to allude to section 19 of the Married Women's Property Act;
(b) she had wrongly failed to take account of her powers in Part IV of the 1995 Act;
(c) her power to transfer property under section 25 of the 1995 Act did not extend to the transfer of a matrimonial home; and
(d) she had been mistaken in applying section 26(1) of the 1995 Act.
In the event, in his oral argument, Mr Farara has adverted to none of those four submissions. Nevertheless it may be helpful for the Board to stress that all of them are misconceived. In the appeal from Jamaica in Bromfield v Bromfield [2015] UKPC 19, [2016] 1 FLR 482, the Board explained at para 5 that, now that divorce courts have wide redistributive powers, proceedings under ancient Married Women's Property Acts to determine the existing extent of the beneficial interests of husbands and wives in property have become obsolete. And, although there will be cases in which the court will appropriately determine issues in relation to the matrimonial home under Part IV of the 1995 Act, for example, as it did in this very case, by regulating its occupation on a temporary basis under section 49, the determination of any issue about its future ownership will ordinarily be conducted under sections 25 and 26. It is wrong to suggest that section 25 does not extend to the transfer of a matrimonial home; and, far from having mistakenly applied section 26(1), the judge was required to do so.
The judge found that during the long marriage the husband had worked hard, managed various businesses and entered into certain successful property ventures but that, in light of his age (then 65) and disability, he could not continue actively to work. She found that the wife had been in full-time employment for eight of the early years of the marriage; that thereafter she had assisted the husband in his businesses; that she had been a mother and a home-maker; and that in those various ways she had made a full contribution to the welfare of the family. Following the breakdown of the marriage the wife had become employed in the museum at Government House, earning $23,000 pa (all the Board's references to dollars are to US dollars) but, at the time of the hearing, she was already aged 58.
Principles identified in the UK Supreme Court and its predecessor, and in the courts of England and Wales, as applicable to the exercise of powers under sections 23 and 24 of the 1973 Act are of persuasive authority in relation to the exercise of powers under sections 23 and 25 of the 1995 Act: Wheatley v Wheatley, Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands), 13 October 2008, HCVAP 2007/006, para 92.
The judge found that there were three properties in Road T own which should be classified as the parties' matrimonial property and which should be subject to the sharing principle, which was first identified, albeit then as a yardstick, in White v White [2001] 1 AC 596 and was later developed in Miller v Miller, McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618.
The first property was Parcel 38. The first floor comprised the three-bedroom apartment which had been the matrimonial home and in which the wife continued to live. The ground floor comprised two other apartments which together generated rental income of about $19,000 pa. Parcel 38 was in the husband's sole name. The husband had bought the property two years before the marriage and in both local courts he made energetic attempts to prove that he had also constructed the apartment on the first floor just prior to the marriage rather than, as the wife said and the judge accepted, just following the marriage. The husband appeared to believe that proof of his assertion in that respect would render the property incapable of transfer to the wife. In any event, however, the judge reminded herself of the observation of Lord Nicholls of Birkenhead in the Miller case, at para 22, that a matrimonial home should normally be treated as matrimonial property even if one of the parties had brought it into the...
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