V R v J V W [2013] FJMC 422; Nadi Family Case 0077.2008 (7 August 2013)

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IN THE RESIDENT MAGISTRATES COURT
AT NADI WESTERN DIVISON
[FAMILY DIVISION]

[Names of the parties are suppressed]
Before : Mr. M. H. Mohamed Ajmeer, Resident Magistrate, Nadi
Date of Ruling : Wednesday 07 August 2013

Appearances
For The Applicant : Ms. Puamau, Pumau Law, Nadi
For The Respondent : Mr. D. S. Naidu, Pillai Naidu & Associates, Nadi

1. On 23 May 2008 Applicant/Wife filed an application in Form 9 seeking the following orders:-

(1). The Respondent and the Registrar of Titles are to be restrained from selling or disposing off any matrimonial property anywhere in Fiji especially Lot 26 on SO 3840 being NL 2887 having an area of 437 m² known as Savunawai Subdivision.

2. On 5 December 2008 the Applicant filed her Bundle of Documents dated 04 December 2008 which contains the following documents:-

NO.	DOCUMENTS
1	Valuation Report of NL 24887
2	Bill Payments – FEA, TFL, Water, MH & Courts. Ect.
3	Furniture, List of household items – valued
4	Receipts of maintenance of house – electric wiring, painting, etc.
5	FNPF statements
6	Salary slip
7	Bank Statements
8	Insurance Police

3. On 02 September 2008 filed Response to an Application for Final Orders in Form 10 and stated and sought the following orders:-

(2). That the maintenance order made by this Honourable Court be varied on the following grounds

(2.2) That the Applicant is obtaining $500-00 every month from Free Bird Institution from the matrimonial property and she is in employment;

(2.3) That the Applicant is not making any contribution towards payment of house loan to Home Finance, ground rent to NLTB and town rate.

(3). That the Applicant provide account for the rental received since 2006 and pay the same to the Respondent.

(4). The contribution of the Applicant to the property has been nil therefore order the Applicant to vacate the property.

(5). The Respondent is now in another relationship resulting in increased expenses including contribution to rental.

4. On 11 November 2008 Respondent/Husband filed his Financial Statement in Form 19 together with the following documents:

(1). That there is matrimonial property located at Savunawai Subdivision being Lot 23 on SO 3840, Ba, Naadi on NL 24887 having an area of 457 square meters.

(8). That the Applicant lady has made contribution to the upkeep and maintenance of the matrimonial house.

(1). Whether both parties have contributed to the matrimonial property directly or indirectly?

(2). What percentage of the share in the matrimonial property are they entitled to?

(7). Contribution of each party in the purchase and construction of the residential property.

(1). "In proceedings between the parties to a marriage with respect to existing title or rights in respect of property, the court may declare the title or rights, if any, that a party has in respect of the property.

(2). Where a court makes a declaration under subsection (1). It may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession."

Section 162(1) of the Family Law Act 2003 stipulates that the court must take into account the following proceedings with respect to any property of the parties to a marriage or either of them:

(a). the financial contribution made directly or indirectly by or on behalf of a party of the marriage to the acquisition, conversation 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, cause to be the property of the parties to the marriage or either of them;

(b). the contribution (other than a financial contribution) made direct 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, cause 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.

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

"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)"

(4). That the Respondent and I were married in Suva on the 22nd day of November 1991.

(6). That the Applicant and I have been married for 17 years and finally separated sometimes in August 2005.

(8). That I am waitress at the Sheraton Fiji Resort with salary scale of $12,000 (Twelve Thousand Dollars) per annum, when I got married to the Respondent.

(9). That the Respondent and I owned a property being Native Lease No. 24887 situated at Driu Road, Savunawai Subdivision, Votualevu, Nadi.

(10). That the above property was bought for $13,840-00 (thirteen Thousand Eight Hundred and Forty Dollars) as vacant land and was mortgage in the sum of $55,960-00 (Fifty Five Thousand Nine Hundred and Sixty Dollars) to HFC to build the house.

(11). That the Respondent, Mr. Jonasa Niubalavu took out a loan in the sum of $55,960-00 (Fifty Five Thousand Nine Hundred and Sixty Dollars) to build a house on the above vacant land.

(12). That the above property has household items to the estimated value of $30,000-00 (Thirty Thousand Dollars).

(13). That the Respondent and I had agreed that the Respondent to pay for property at Driu Road, Savunawai Subdivision, Votualevu, nadi and I pay for Household items.

(14). That the Respondent has been paying for the property at Driu Road, Savunawai Subdivision, Votualevu, Nadi at $600-00 (Six Hundred Dollars) per month from the time it was purchased whilst I pay for Household items.

(15). That his payment made by the Respondent in respect of the property is directly deducted from his salary.

(16). That I was caregiver of the family from the beginning of our marriage until our separation.

(17). That I cooked, cleaned, washed and looked after the Respondent, my husband during the course of our marriage,

(18). That even though I was working I still took time out to look after our house and my husband, the Respondent.

(19). That I took care of his family needs and even contribute to the death of his mother and other of his family functions.

8. The Applicant also gave oral evidence at trial. In evidence she stated that he took a loan. He paid for the land through FNPF but she didn't contribute. She is staying in the house for the last 7 years. She told he bought the land and we built the house. She made payment for some furniture. She as a caregiver cooked, did laundry and maintained the house.

9. In cross examination she stated that she is receiving rent $110-00 a month from the house since 2007 – 2009. He is paying Nadi Town Council rates and mortgage repayment - $100-00 a month. She is working at Sheraton and getting $267-00 per week. She spent about $800-00 for painting the outside part of the house, fixing front and back doors and installation of hot water tank. She also has her FNPF account. She did not know about the mortgage balance.

10. The Respondent gave sworn evidence and produced his documents. In evidence he stated that:-

II. He is cooking at home most of the time for her as well. Sometimes meals are provided at work.

III. Most of the time whenever he is home, he does house work. Sometimes she does. They have an automatic washing machine.

IV. He is paying maintenance $100-00 a month since 01 November 2008. He agreed to pay maintenance. She is working.

V. He purchased the land for $13,000-00 and built the house spending $55,000-00. The house is mortgaged for $52,000-00. He is paying $255-00 to ANZ bank towards mortgage repayment.

VII. He was renting $550-00 per month until his current partner bought a house in 2008. He is paying electricity and water.

12. Both parties have provided their own valuation reports. The Applicant's valuation report has been prepared in March 2004 before the completion of the house. According to her Valuation Report prepared by Pacific Valuation Ltd, the estimated market value of the property after completion of the house is $90,000-00.

13. The Respondent/Man also has provided a Valuation Report prepared in January 2012 by the same company that prepared the Applicant' Valuation Report. As per his report, the current market value of the leasehold property has been assessed at (value of improvements = $105,000-00 + Leasehold land Interest = $37,000-00) $140,000-00.

14. The Valuation Report provided by Respondent / Man has been made in January 2012. This has been the latest valuation of the property after building has been completed. Moreover, the Respondent/Man's Valuation Report was not challenged by the Applicant / Lady. I therefore accept the Valuation Report submitted by Respondent / Man. The Respondent had placed a mortgage over the matrimonial property (home) in August 2008 with ANZ bank. Since then he had been paying the house mortgage to ANZ which stands at a balance of $51,865-70. This mortgage balance must be deducted as liability from the value of the property. Accordingly the value of the property (Savunawai) including land building after deduction of liability is $88,134-000 (rounded).

15. The Respondent / Man did not offer any evidence in this regard. However, Applicant / Lady in her Affidavit of Evidence in Chief states that the above property has household items to the estimated value of $30,000-00. This estimated value of the household items was not disputed by the Respondent / Man. Hence I decide the value of the household items on the property to be $30,000-00.

What percentage of the share in the matrimonial property the parties are entitled to?

16. The parties were married in 1991, separated in 2005 and divorced in 2008. There have been no children of the marriage.

17. The Applicant worked and still working in a hotel as waitress earning a total annual income of $12,000-00 while the Respondent worked and still working a chef with ATS earning a total average weekly income of $454-00. It is to be noted that the Respondent earned more than what the Applicant earned.

18. Admittedly, the Applicant's financial contribution towards the matrimonial property has been zero. She told that she did not make any financial contribution to the matrimonial property. She admitted that the Respondent purchased the property in 2004 and he used his FNPF contributions and obtained a loan from Home Finance to construct the dwelling house, a three bedroom house.

19. The only contributions, if any, by the Applicant for the matrimonial property would be non-financial contribution and contributions as a homemaker.

20. Section 162 of the Family Law Act provided the factors that the court must take into account when determining the contributions of the parties being financial contribution, non-financial contribution and contribution as a homemaker.

21. The Applicant stated that during 14 years of marriage, she had cooked, cleaned, washed and looked after the Respondent and this even extended to his mother. In doing this the Respondent was able to go to work with clean clothes uniforms. She prepared meals during his days off, paid the household bills. (She could not produce any receipts in proof of such payments).

22. The Applicant also told that since the Respondent had left the matrimonial house in 2005. She did not receive any assistance from him in the up-keep of the home.

23. Under cross examination she admitted to earning income by hosting foreign Free Bird students and this would amount to approximately $400-00 monthly. She further admitted having her family members living with her who are not contributing to the operation of household budget.

24. On the other hand, the Respondent in evidence stated that the Applicant has been in occupation of the matrimonial property since its construction and to date. He has been living on rental with his new partner at $300-00 per month and at the same time paying off mortgage by instalments of $265-00 fortnightly. He also pays the rental to the Native Land Trust Board of $300-00 annually and town rates to the Nadi Town Council of $115-50 annually. He also told that he being a chef did his fair share of cooking, laundry and cleaning in the house and it was he who had the house furnished with all the modern kitchen, laundry and furniture.

25. It was argued on behalf of the Respondent that the Applicant was not the normal housewife as the parties had electrical gadgets in the house like washing machine and were doing their own washing, ironing and cooking on most occasions as they were both working.

26. The Applicant did not contribute financially to the matrimonial property. She told in evidence that she also paid for some household items. But she could not support this with documents. She said receipts were destroyed in floods.

27. The Applicant's contribution has been only indirect non-financial contribution which includes her contribution made in her capacity of homemaker. There is no contribution made by the Applicant in the capacity of parent, because there are no children of the marriage. The marriage between the parties had lasted for almost 14 years. She was a working wife. The Respondent also used to cook for the Applicant as he is a chef. They had an automatic washing machine for laundry. The applicant was up-keeping the matrimonial house. She has done some outer painting, fixed hot water tank and did some plumbing works. These works would have necessitated because of the renting of the house. She received rent from Free Bird students. Her family members were also staying in the matrimonial house. The Respondent left matrimonial house in 2008. Afterwards the Applicant alone occupied the house.

28. 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 (Section 162 (2) of the Family Law Act 2003).

29. In my judgment, equal presumption contemplated by Section 162 (2) of the Fiji Law Act has been rebutted in this case as the Applicant's financial contribution towards the matrimonial house was zero. However, she had contributed as a homemaker for 14 years. I therefore decide that the Applicant must be entitled to a 30% share of the matrimonial house and household items on the house.

30. As regard to FNPF, both parties claim 50% of each FNPF contribution. The Applicant has the sum of $18,881-45 in her FNPF account and $18,409-00 in her Life Insurance Policy (Medical Insurance) while Respondent $73,614-14 in his FNPF account and $19,729-00 in his Life Insurance Policy (Life & Health). These figures reflect balance as at 2008. Both parties have their own FNPF contributions and Insurance Policies. Parties did not press seriously shares on these contributions. It would not be prudent to divide their FNPF and Insurance contributions. These contributions may be considered their individual contributions. I therefore make no orders as to these contributions.

31. By application [Form 5] filed on 21/02/12, the Respondent seeks to cancel the spousal maintenance order made in this case. Currently the Respondent pays spousal maintenance to the Applicant. The Applicant is working and is capable of maintaining herself. I therefore cancel the spousal maintenance order made in this case.

32. I note that court may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession, pursuant to Section 160(2) of the Family Law Act. In this matter I have declared that the Respondent is entitled to a 70% of the matrimonial property including household items on it. Hence I order that the Respondent is entitled to possession of the matrimonial property subject to the Applicant's 30% share in the property.

I. The value of the matrimonial property located at Savunawai Subdivision being Lot 23 on SO 3840, Na, Nadi on NL 24887 is $88,134-00;

III. The Applicant is entitled to a 30% of the matrimonial property and household items on it;

IV. The spousal maintenance order made on 01 November 2006 is cancelled forthwith;

V. There shall be no orders as to the FNPF and Insurance contributions of the parties;

VI. The Respondent is entitled to possession the matrimonial house subject to the Applicant's 30% share; and

............................................................
M. H. Mohammed Ajmeer
Resident Magistrate

Magistrates Court of Fiji

V R v J V W [2013] FJMC 422; Nadi Family Case 0077.2008 (7 August 2013)