SSK v AK [2013] FJMC 217; Family Court Case 464.2010 (28 May 2013)

1] The Applicant instituted matrimonial proceedings in the Family Court on 9th December 2010 by filing a Form 9, 19 and 23, seeking matrimonial property distribution. The Respondent filed a Form 10, 19 and a Form 23 on 7th February 2011. The matter was listed for Hearing on the Form 9 on 27th September 2012 and both parties gave sworn evidence.

2] On the applicant's evidence it revealed that the parties were married in Fiji on 15th April 2006 in Suva, Fiji and after the traditional marriage on 6th May 2007, the parties started living together. The Marriage certificate tendered as Ex-1. The parties separated on 7th April 2010, and the Respondent man filed for Divorce in 2011 and divorce was granted in August 2011. The parties after marriage were renting a flat, with the Respondent's family near Caubati for $500 per month and the Respondent was paying for the rental. The Applicant was working in the University of South Pacific as graduate assistant on a scholarship. She got $820 per month but she did not have pay slip to prove it. But ANZ bank account Statement is marked as Ex-2. The witness showed that her salary deposit in the statement. The Applicant said the Respondent was quality Manager of Asco, but he never showed his pay slip. She said she used to pay father's car loan till they brought their matrimonial house in September 2008. The Car registration number is FA-148. The parties took a loan from Westpac Bank and the offer letter was under the names of the Applicant, Respondent and the Respondent's father. The Applicant gave evidence under oath that the loans officer, Mr. Rajesh from Westpac called her too, as the Respondent's income was not enough to take a loan to buy a house. Valuation report was marked as Ex-3. Westpac bank offer letter was tendered as Ex-4. The applicant said that she paid $6000 for renovation of the house. After house was bought the respondent paid the house repayment and she contributed house running expenses. She said her father deposited $6000 for house renovation. Page 19 was referred in the bank statement to this effect. In 2009, the respondent's sister got married then both contributed $3000. It was drawn from her savings account and statement was tendered as Ex-5. The applicant said at one time the car was seized due to non payment and it was settled by credit card. She said she paid over $1000 to settle credit card bills. The FNPF account was tendered as Ex-6 and recent house valuation report tendered as Ex-7. She is claiming 50% of the matrimonial property.

3] In cross examination she said that she does not know how much father in law contributed towards matrimonial property. She admitted the respondent is also contributed $ 12,700. After separation she did not contribute anything as she had to bear her own expenses. Her pay was $820 in 2008, $920 in 2009 and $1020 in 2010, her position was changed in February and now she is drawing $20000 per annum. She said her father did give $6000 towards house renovation but he is no more. She said that she took engagement ring and mangalsuttra with her but she did not take the microwave. The worth of jewelries is less than $8000 and she took only $100 worth items. She admitted the sister's wedding gift has no relation to matrimonial property. In her evidence the applicant asked $60000 matrimonial share. The applicant admitted the length of house loan is 25 years and only 4 years repaid so far. The loan repayment was $1286 per month. The respondent counsel put the scheme of deduction of house loan and other payments to the applicant and she was mute and said the claim was made with her lawyers.

4] The respondent in his evidence said that they were married and divorced. The house was bought in 2008 and they put his and his father's FNPF funds to purchase the house. He explained how they found the deposit for the house purchasing and said the applicant did not contribute any money. He said his nett income is $276.23 after paying loan installment. The Respondent filed DEX-1. He said he pays town rates as well. At that time applicant was student graduate and she got only allowances. After four months, they separated in 2009 April. When she separated she took all her clothing, some electrical items worth more than $1000, she took all jewelries bought during the marriage value of $8000. He said father's vehicle payment and sister's wedding gifts cannot be taken as matrimonial property. Though she did not contribute any money, she is the one of owner of the house property. She did not pay any loan repayment. He said he paid 60 installments so far and another $135,000 balance to be paid in 25 years. Water and Electricity bills are being paid by her sister. The Respondent says that he can offer $10,000.

5] In cross examination, the respondent said his mother is a tailor and they get rent. The Rent collected by his father and it is used for running of the property. He said he was not asked to file FNPF statements. He said he won a car and it was not a matrimonial property. But he sold it and got jewelries worth of $3000 and cash $9000. He said he has Westpac bank account and he has not got any loan account. The Respondent stated he was a Finance Manager with Asco Motors. He stated that when he went to enquire on his home loan, his salary was not enough, so his father's FNPF was to be used and his wife's. Since the Applicant did not have any FNPF, the Bank asked for her pay slip. Since the Applicant did not have the pay slip, they obtained a letter from the University of the South Pacific. The Respondent said on the day of his wedding, he won a car worth $18,000.00 which he later sold for $12,000.00 and bought jewelries for $3000.00. He admitted that the $9000.00 from the sales proceeds of the car was with him and he further agreed that the sale proceeds formed part of the matrimonial property pool of assets. Applicant's Exhibit 2, the bank statement to show to the respondent that there were some purchases from Suncourt, RC Manubhai and Vinod Patel which are all hardware stores in 2008 and 2009 (after the house was bought) paid by the Applicant through her ATM card. The Respondent stated that he cannot confirm because the shops sell range of items. The Respondent admitted that the Applicant was a student graduate until 2009 and had a permanent position. He stated that he was the one contributing towards the running of the household, purchasing of the household goods and that his father was taking the monies from the lean to house for his expenses as he was retired and had used his FNPF on the house. The Respondent also admitted that the Applicant took all her clothing items, some electrical items worth $1000.00, kitchen ware, microwave oven and jewelry which were bought during the course of the marriage. He stated the estimated value of the jewelry at $8000.00 and the Appliances at $1000.00. But the Respondent could not name them.

6] The Applicant seeks a division of the matrimonial property in the following manner.

7] Section 161, 162 and 163 of the Family Law Act elaborates the procedure and matters to be concerned in property distribution. It says;

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"161 – (1) In proceedings with respect to the property of the parties to a marriage or either of them, the Court may make such order as it considers appropriate altering the interests of the parties in the property, including.

(2) An order made under Subsection (1) in proceedings with respect to the property of the parties to the marriage or either of them may, after the death of a party to the proceedings, be enforced on behalf of, or against as the case may be, the estate of the deceased party.

(3) The Court may adjourn proceedings with respect to the property of the parties to a marriage or either of them, except where the parties to the proceedings are-

On such terms and conditions as it considers appropriate, and of such period as it considers necessary to enable the parties to the proceedings to consider the likely effects (if any) of an order under this section on the marriage or the children of the marriage.

(4) Nothing in subsection (3) limits any other power of the Court to adjourn proceedings with respect to the property of the parties to a marriage.

(5) Where the period for which a Court had adjourned proceedings with respect to the property of the parties to a marriage or either of them as provided by subsection (3) has expired and-

(a) proceedings for principal relief are instituted by one or both of those parties;

(b) the marriage is dissolved or annulled under the law of an overseas country and the dissolution or annulment is recognized as valid in the Fiji Islands under Section 193; or

(c) The parties are granted a legal separation under the law of an overseas country and the legal separation is recognized as valid in the Fiji Islands under Section 193.

Either party to the first mentioned proceedings may apply to the Court for the hearing of those proceedings to be continued.

"162. (1). In considering what order (if any) should be made under Section 161 in proceedings with respect to any property of the parties to a marriage or either of them, the Court must take into account-

(a) The financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of the last mentioned property, whether or not the last mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;

(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last mentioned property, whether or not that last mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;

(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.

(d) the eligibility of either party for a pension, allowance or benefit under-

(ii) any superannuation funds or scheme, whether the funds or scheme was established, or operates, within or outside the Fiji Islands.

(2) For the purposes of subsection (1) the contribution of the parties to a marriage is presumed to be equal, but the presumption may be rebutted if a Court considers a finding of equal contribution is on the facts of the case repugnant to justice, (for example as a marriage of short duration).

(b) the income, property and financial resources, including any interest in capacity of each of them for appropriate gainful employment.

(c) whether either party has the care and control of a child of the marriage who has not attained the age of 18 years;

(d) the commitments of each of the parties that are necessary to enable the party to support-

(ii) a child to another person that the party has a legal or customary duty to support.

(f) the financial resources available to a person if cohabitating with another person;

(h) the terms of any order for spousal or child maintenance made in favor of or against a party;

(i) any other fact or circumstances which, in the opinion of the Court, the justice of the case requires to be taken into account.

(4) If, before proceedings with respect to the property of the parties to a marriage or either of them are completed, either party to the proceedings dies-

(a) the proceedings may be continued by or against, as the case may be, the legal personal representatives of the deceased party and the Rules of the respective Division may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;

(i) that it would have made an order with respect to property if the deceased party had not died: and

(ii) that it is still appropriate to make an order with respect to property, the Court may make such order as it considers appropriate with respect to any of the

(c) an order made by the Court Pursuant to Paragraph (b) may be enforced on behalf of or as the case may be, against the estate of the deceased party.

(5) A Court must not make an order under this Section in proceedings with respect to the property of the parties to a marriage or either of them (other than an interim order or an order made with the consent of all parties to the proceedings) unless-

(a) the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate with a Registrar or of the respective Family Division.

(b) the Court is satisfied that, having regard to the need to make an order urgently, or to any other special circumstances, it is appropriate to make the order notwithstanding that the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or

(c) the Court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).

(6) Evidence of anything said or of any admission made at a conference referred to in subsection (5) or at any conference with a registrar in proceedings under this Part is not admissible in any Court or in proceedings before a person authorized by law, or by consent of parties, to hear evidence.

(7) A person who files an application seeking an order under Section 163 (1) in relation to land is deemed to have a beneficial interest in the land within the meaning of Section 106 of the Land Transfer Act. Such beneficial interest will cease on the proceedings being finalized by order or the withdrawal of the application."

9] According to the above guidance, I now do the analysis. The first court should look the valuation date and period of time for pool of assets. Their traditional marriage was on 6th May 2007, thereafter parties started living together. The parties separated on 7th April 2010. From the date of separation the applicant did not support any kind of financial or non financial contribution as she admitted in the evidence. It should be noted the valuation date therefore should be date of separation and not the date of divorce granted. This rule was laid in Oswell v. Oswell Canadian Court, (1990), 28 R.F.L. (3d) 10 (Ont. H.C.J.); aff'd (1992), 43 R.F.L. (3d) 180 (Ont. C.A.]. Thus, this court considers the valuation of property to be done according to the date of separation. I hold valuation period in this case is to be from 06th May 2007 to 07th April 2010. The Applicant entitled to get her share on her financial and non financial contribution for this period only.

10] I go one by one of the pool of assets. In the pool of assets there is a matrimonial house. There is no dispute that the parties bought the house after they god married and the house is registered under the parties ( Applicant and Respondent) and the Respondent's father's name, making them 1/3 owners. The Respondent has included documentary evidence in his Bundle of Documents (after the hearing was concluded) to show a loan account ending balance of $139,882.62 as at 8th March 2011. The loan repayment was of $1286.00 per month (oral evidence of the Respondent given under oath). The house was purchased or registered under the parties names 26th September 2008. To ascertain the share, the parties should ascertain the market value of the matrimonial house as at 07th April 2010. From that market value (Current market value should not be considered as the Applicant did not contribute anything after separation.), parties should deduct that full loan amount to be paid at the date of separation. Then balance to be equally divided amongst 3 owners after deduction of contributions( FNPF and Personal) of the Respondent's father as the respondent father paid FNPF contribution to buy this matrimonial property which is a third party to this action.

11] The Respondent had said the property rented for $100 per month. The profit gained by the matrimonial property during the valuation period (September 2008 to April 2010) to be calculated, to be divided equal share amongst the three owners.

12] The applicant claimed FNPF funds. I therefore call FNPF details of the Respondent. For the distribution of FNPF balance as at 07th April 2010 is to be deducted from balance of 07th May 2007. Further contribution for matrimonial house purchasing of the Respondent is also be deducted from this figure as he deposited FNPF money to buy the matrimonial house. If anything left it should be divided ½ and distributed amongst the parties.

13] When considering cash at bank, the Respondent has disclosed a Bank Statement for Account No. 9801198020 which has an ending balance of $298.28 as at 12th May 2010. The parties had separated in April 2010. As at April 2010, the Applicant had a sum of $918.83 in her Bank Account No. 5556337. I hold this is a matrimonial property and no partner can save money in the bank if other partner is supporting financial and non financial during the period of marriage. I therefore hold Cash at bank should be divided equally as at 10th April 2010.

14] The applicant said that she financially contributed towards respondents and his family on three occasions. Those are House renovation costs of $6000.00, FA 148 car loan repayments of $6080.00 and Respondent's Sister's wedding costs $3000.00, the total sum of $15,080.00.

15] The Applicant claimed renovation cost. She produced Bank Account statements (Applicants Exhibit No. 2) have shown purchases from Vinod Patel, Suncourt and RC Manubhai which were items bought for the renovation of the house. Items were bought as follows:

6/10/08 from Vinod Patel	$ 204.20
9/10/08 from RC Manubhai	$1807.97
9/10/08 from RC Manubhai	$ 109.10
13/10/08 from Vinod Patel	$ 131.50
12/11/08 from Suncourt	$ 115.00
15/12/08 from Suncourt	$ 60.00
	$2427.77

16] Those are spent during the period of marriage. The contrary is not proven by the Respondent. The court therefore can hold this renovation has increased the situation and valuation of the property and it should be reimbursed to the Applicant. Thus, she is liable to get $2427.77.

17] In general, she mentioned that she paid House renovation costs of $6000.00 to the Respondent's father. This was not clearly proved but the applicant can file civil suit as the father of the Respondent is a third party. The applicant said that she repaid FA 148 car loan of $6080.00. The car is belongs to the Respondent's father and he is third party to this action. Further, this car cannot be inserted to the pool of assets. Thus, the applicant may file civil suit (if need be) to recover this money. The applicant asks Respondent's Sister's wedding costs $3000.00. In fact this was gift as both agreed in the evidence. In fact, gifts are not creating constructive trust. When a gift is dispatched, it is given forever. Therefore, when marriage was broken, she cannot ask that gifts to be returned. Further, this cannot be treated as item of matrimonial pool of asset. I therefore decline to grant cost of the respondent's sister's wedding.

18] The Applicant also seeks from the Court for non financial contributions made towards her years of marriage with the Respondent from the date of marriage till the divorce in August 2011. They were separated on 06th April 2010. From that date, I cannot see that she supported whatsoever towards her marriage life. Non financial contribution can be considered when they are together and before separation. The applicant is not liable to get any non financial contribution after their separation. Thus, she cannot claim till August 2011, the divorce date. She may have responsible for maintaining the household and looking after the Respondent for 3 years were living together married and in one house. I have considered non financial contribution flat rate in my judgment below.

19] The Applicant claims 50% share of her non financial contributions. They had been married for 3 years. Most of the time, she was studying as a graduate student of USP. In Lock Yeng Fun v. Chua Hock Chye [2007] 3 S.L.R. (R.) 520 (C.A.) [Lock Yeng Fun] Singaporean Court held;

"[C]ourts might not have given sufficient recognition to the value of factors like homemaking, parenting and husbandry when attributing to them a financial value in the division of matrimonial assets. This ought not to be the case. It is true that, by their very nature, such kinds of contributions to the marriage are ... difficult to measure because they are, intrinsically, incapable of being measured in precise financial terms ... Difficulty in measuring the financial value of such contributions has never been—and ought never to be—an obstacle to giving the spouse concerned his or her just and equitable share of the matrimonial assets that is commensurate with his or her contributions..." [Emphasis is mine]

20] However, considering above notions I grant $6000 to the applicant for her non financial contribution for 3 years of marriage as flat rate.

21] Considering the evidence placed before me, I make following orders. The Applicant is entitled to get:

Magistrates Court of Fiji

SSK v AK [2013] FJMC 217; Family Court Case 464.2010 (28 May 2013)