Cheon v Cheon [1997] SBHC 16; HC-CC 052 of 1995 (8 April 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Numb Number 52 of 1995

ANICA CHEON

v

CHANG HO C HO CHEON

Before: Palmer, J

Hearing: 11th March, 1997

Judgment: 8th April, 1997

Counsel: P. Lavery for the Applicant;

A. Radclyffe for the Respondent

JUDGMENT

PALMER J.: The parties were divorced on 29th November, 1995. The Applicant now comes to Court seeking orders for distribution of matrimonial property and maintenance for herself. There is no issue of the marriage.

There is one property, a block of customary land purchased from customary Lands at Kakabona during currency of the said marriage and which is the subjesubject in the dispute between the parties. The evidence adduced on this particular property is very clear. It was bought with the intention of building the matrimonial home. I am satisfied this is clearly matrimonial property which should be considered for distribution between the parties.

There is however an agreement which purports to settle the matrimonisputes of the parties dated 15th July, 1996 (hereinafter referred to as the "Agreement"). Much evidence has been adduced pertaining to the question of validity or invalidity of this agreement.

The Applicant's allegation is that the Agreement had been obtained from her by force or threats and that aingly it had not been obtaiobtained voluntarily and thereby void. The Respondent denies that any form of force or threats had been made. However, having heard the evidence and seen the parties giving evidence for myself, I accept the version given by the Applicant as correct; that she had not voluntarily signed the document. One thing needs to be made quite clear and plain, that anyone seeking to rely on any agreement entered into with the intention of settling any disputes or seeking to include a clause which would exclude the rights of another person to take up a matter in court as in this particular case, should ensure that the other party had been given an opportunity to seek independent legal advice before signing the agreement. Whilst the Court recognises on one hand, the freedom of the parties to enter into agreements voluntarily, it should nevertheless treat very cautiously any such agreements that seek to exclude any parties right to litigation unless it is satisfied that independent legal advice had been given. In the circumstances of a husband and wife relationship this is all the more important as the possibility of duress occurring is very real in circumstances where you have a domineering and controlling spouse.

Mr Lavery has suggested that the property be valued and the value split intf. Mr Radclyffe on the other hand submits that some sort of valuation hasn has already been provided in the affidavit of Anica Cheon filed on 15th November, 1996 at paragraph 7. She deposed that the land initially had been purchased for $3,000.00 and a further sum of about $7,000.00 spent on construction. Both parties agreed that the house was incomplete when divorce proceedings commenced on foot and resulting in the Applicant moving out.

I note from the evidence of the Applicant that she merely seeks payment of a lump sum of money thatssence would enable her to find some alternative aive accommodation for herself. The $3,500.00 provided had not been sufficient towards this. She feels that she is entitled to more and thus comes to this Court for relief.

The valuation of $10,000.00 that can be observed from the affidavit of Anica Cheon is a very rough anservative estimate. As a guideline, it is satisfatisfactory. A half of $10,000.00 is $5,000.00. The question for me to consider is whether the amount of $3,500.00 should be deducted or taken into account in assessing this amount. With respect, it is my view that that would not be necessary in the circumstances of this case. The reasons are fairly straightforward. It is the wife who has had to leave the home for the infidelities of the husband. She has then had to start from scratch, whereas the husband, (the Respondent), has had the benefit of a matrimonial home right from the beginning. She has had to find suitable accommodation with other members of her family even up to the present and is still finding things tough going. To that extent she has suffered some inconveniences and hardship for that displacement. That should be taken into account in some ways in this particular case.

Secondly, whilst on one hand, she will be entitled to maintenance from the Respondent, she has opted for a lump sum in lieu thereof. This is commendabendable in view of the fact that the marriage is at an end, and that there should be a clean break from each other. A lump sum payment is more helpful to that extent. Parties can then forget about any further commitments to each other and get on with their life. In those circumstances, I am satisfied that the sum of $3,500.00 already paid need not be taken into account in distributing the sum of $5,000.00. This brings the total sum to be paid towards the Applicant to $8,500.00. I am satisfied this reflects accurately and fairly, the lump sum amount which should in total be paid to the Applicant, taking everything into account. In the alternative, then maintenance at the rate of $150.00 per fortnight shall be payable to the Applicant with effect from date of dissolution of the marriage.

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The Applicants cost if any should be paid by the Respondent.

ORDERS OF THE COURT:

p style="margin-tgin-top: 1; margin-bottom: 1">1. ORDER that a lump sum payment of $5,000.00 be paid in full and final satisfaction of the property and maintenance claims of the Applicant.

2. IN the alternative order that maintenance shall be payable at the rate 50.00 per fortnight with effect from date of dissodissolution of the marriage (29th November, 1995).

3. COSTS of the Applicant if any to be borne by the Respondent.

ALBERT R. PALMER
THE COURT.