Pusau v Pusau [2001] SBHC 86; HC-CC 130 of 1999 (28 November 2001)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil. Case No: 130 of 1999

SALOME PUSAU

class="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> v

PAUL

High Court of Solomon Islands

Before: Frank O. Kabui, J

Civil. Case No: 130 of 1999

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Date: of Hearing: p>th November 2001

Date of Judgment: 28^th November 2001

Mr. D. Hou for the Plaintiff

Respondent not present

UDGMENT

(Kabui, J): pan lang="EN-GB" style="font-size: 12.0pt; letter-spacing: ing: -.1pt">By Summons filed on 5th September 2001, the Petitioner seeks the following orders -

1. That thperties of the marriage be determined by this Honourable cole court.

/p>

2. Further and other Orders this Honourable cble court sees fit.

3. Costs of an incidental to this aation be paid by the Responespondent.

The Respondas not present in Court to oppose the Petitioner’s Summons.mons. The Respondent was served with the Notice of Hearing by Counsel for the Petitioner, Mr Hou, on 4^th October 2001 at the Respondent's Office at the Telecom Building at Ranadi. It was a personal service effected on him. Counsel for the Petitioner sought leave to proceed in the absence of the Respondent and I granted leave accordingly. This application is about the Petitioner's claim to certain properties acquired during the course of the parties’ previous marriage. In support of her application, the Petitioner filed an affidavit on 5th September 2001 in which she listed a number of properties and details about them. I am sure the Respondent was served with that affidavit because he appeared before me on 26th September 2001 and sought an adjournment for the purpose of finding a lawyer to represent him in Court. Amongst the properties listed in paragraph 3 (a) - (i) in her affidavit, is a three-bedroom house at Naha situated on Parcel No. 191-039-31. In paragraph 4 of her affidavit, she declares that she owns a fibre-glass boat as her own personal property purchased out of her owns funds. The Respondent did not dispute this. The fibre glass boat remains her personal property.

Parcel No. 191-039-31

This is the story about the house that is now part of Parcel No. 191-039-31. In 1984, the Respondent lodged an application to the then Solomon Islands Housing Authority for a three - bed room house. The application was dated 16th May 1984. In that application form, the Respondent disclosed his earning capacity as well as that of the Petitioner as his wife. Their salaries then were about the same. They were then only being able to repay $100 or a little more per month if the application was approved. Parcel No. 191-039-31 was eventually transferred to the Respondent on 20th July 1988. The charge created over the property as security for the loan from the Solomon Islands Housing Authority was also in the name of the Respondent. He executed the charge on 3rd June 1988. The monthly repayment instalment was $215.58 paid by deduction from the Respondent's salary. The parties then opened a joint account in 1988 into which both paid their salaries. She was able to meet the cost of housekeeping and other expenses out the joint account thus filling up the gap created by the deductions from the Respondent's salary for the repayment of the loan. In 1993 to 1998, the Respondent rented out the property for the sum of $1,000.00 per month. He used all the money and gave none to the Petitioner who was then teaching on Malaita. In about 1999, the Petitioner took possession of the property and spent $22,060.00 to repair it. The Respondent also owes the Petitioner $14,000.00 maintenance in arrears.

Intention of the Parties

The Respondent has given no evidence by way of documents or oral statementement. I am therefore left with the evidence of the Petitioner to decide this case. In this regard, I would do no better than to quote the following paragraphs from her affidavit -

ass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> 3. to the acquisition of properties described in paragrapagraph 3 hereof, our common intention was that they should be part of our family assets in which each of us is entitled to an equal share. This intention is clear as most of the properties were paid out of our family income from which I have contributed. We have operated a joint account until around 1995 when our marriage broke down.

4. Concerning property described as Parcel rcel No. 191-039-31 at Naha (Honiara) although it was eventually registered in the Respondent's name alone, we have a common intention that it should be a family asset in which each of us is entitled to an equal share. This is clear from our joint application for the property exhibited as “B” hereto. This is further shown by us operating a joint account in 1988 straight after entering the mortgage agreement with the then Solomon Islands Housing Authority on 3rd June 1988. Although the monthly instalment of $215.58 (fortnightly at $107.79) was deducted out of the Respondent's salary, it was only through my contributions to house-keeping and other expenses that the Respondent was able to make instalment payments on the mortgage. Exhibited, as “C” is the mortgage agreement dated 3rd June 1988.

ass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> 14 have no interest in the other properties at home excepexcept the fibreglass boat, which is not matrimonial property. As to the property in parcel No. 191-039-31 at Naha, Honiara, I am entitled to a beneficial interest in the property. The property was purchased by out joint efforts and for our common benefit prior to the marriage break down. In view of the renovations done to the property as per paragraph 10 hereof by my own efforts after our marriage broke down I clearly entitled to at least 80% of the value of the property.

In favour of the Petitioner aese facts. In the application form for a loan from thom the Solomon Islands Housing Authority, the Respondent included the Petitioner's name and disclosed her salary per month. The idea obviously was to show a combined financial strength of both of them to be able to service the loan if they succeeded in obtaining the loan. This common stand was soon translated into action when they opened a joint account in the Bank in 1988 into which their respective salaries were paid. Exhibit "D" in her affidavit shows that her salary was substantially higher than that of her husband. Clearly, her financial support was crucial because without it, the Respondent would not have been able to service the loan. In about 1999, she obtained a loan from her Bank and carried out extensive repairs to the property unaided by the Respondent. The fact that the Respondent paid the loan, had the property registered in his name and executed the mortgage over the property are important factors but had it not been for the financial support provided by the Petitioner, the mortgage could have been foreclosed- and the property sold. The Court's duty under section 17 of the Married Women's Property Act 1882 is well known in this jurisdiction (see Elizah Tavake v Hilda Tavake (Civil Case No. 280/1996)). Based upon the conduct of the parties as stated above, I am satisfied that the intention of the parties was to own the property in equal shares. I so find.

The matter however does not end there. The Petitioner claims that the full ull ownership of the property be given to her for the reasons stated in her affidavit. What she is really saying is that the half share to which the Respondent is entitled should be transferred to and in her name also. Normally, either the Respondent must agree to her demand or she must buy off the Respondent's half share. To decide this point, I must turn again to the Petitioner's affidavit evidence. In paragraph 3 (b) to (i) in her affidavit, she listed eight properties which she says are owned and in the control of the Respondent and his family on Small Malaita. The total value of these properties is $113,000.00. She also says that the Respondent owes her $14,000.00 maintenance arrears up to date. The date of the maintenance order was 7^, August 1997. I think the amount of maintenance in arrears is more than $14,000.000. The number of years the Respondent has not paid maintenance is now over 4 years 7 months. It is a total of 55 months at the rate of $200.00 per fortnight. The current sum is about $22,000.00 and continues to increase each month. The Petitioner says she is willing to forego a total of $113,000.00 worth of properties plus the maintenance arrears of $22,000.00. The loss of 50% of rental from 1993 onwards would certainly increase the figure of $135,000.00. She says the value of the house on Parcel No. 191-039-31 is about $100,000.00 plus furniture worth $1,000.00. Her idea is that whatever share the Respondent is entitled to should be off-set against the loss of her benefit in the properties on Small Malaita, loss of rental and her loss in arrears so that she has 100% ownership of the house on Parcel No. 191-039-31. This idea appears to be reasonable in view of my saying that each of them is entitled to equal share in the house. However, I do have the problem of valuation of the properties on Small Malaita and the house on Parcel No. 191-039-31. There is no independent evidence on this matter. The figures may well have been inflated to make the point convincing in Court. The problem is made worse by the lack of protest by the Respondent. The reason for the Petitioner's stand in this regard is also reasonable. In the following paragraphs in her affidavit, she said -

15. However, given the fact that the Respondent has control over most oost of the properties at our home on Small Malaita and the rental monies stated above and the other factors stated in paragraphs 8, 10, 11, 13, 15 and 16, I humbly ask this Honourable court to grant the whole of the interest in the said property at Naha to myself. I have undergone several major operations in the past, which eventually lead to my termination from employment on medical grounds. Annexed hereto as “R” is a copy of a letter to that effect. Currently, I am still on daily treatment since the last ten years for high blood pressure, gout, and urine infection. Annexed hereto as “S” is a medical report recently made on 18th August 2001. Given the constant need to attend to a monthly review by Doctors and for the purposes of getting proper prescriptions it is essential that I remain in the said property.

p class="Mss="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> 16. I cannot live at my home village in Small Malaita in view of the above face factors, which have further aggravated my already handicapped body as a disabled polio victim. Similarly, my former husband has left myself and 5 dependant children who need a house to live. These children were adopted in custom prior to our divorce. I humbly ask this Honourable court to grant the whole of the beneficial interest in the said property to myself and dependent children. Also, the fibre-glass boat which is not matrimonial property but is now solely under the control of the respondent's father.

I think in these paragraphs, she is asking for a “clean break” to give her a sense of cety and security for hfor herself and the children in her custody. She has given up on the recovery of her maintenance arrears and simply converts that benefit to another use for her benefit. This sort of case first arose in Wachtel v Wachtel [1973] EWCA Civ 10; [1973] 1 A.E.R. 829 where Lord Denning MR at page 841 said, ...

Converselppose the husband leaves the house and the wife staysstays in it. If she is likely to be there indefinitely, arrangements should be made whereby it is vested in her absolutely, free of any share in the husband; or, if there are children, settled on her and the children. This may mean that he will have to transfer the legal title to her. If there is a mortgage, some provision should be made for the mortgage instalments to be paid by the husband, or guaranteed by him. If this is done, there may be no necessity for a lump sum as well. Furthermore, seeing that she has the house, the periodic payments will be much less than they otherwise would be”...

lass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> Hanlon v Hanlon [1977] EWCA Civ 10; [1978] 2 A E R 889 was a similar case where at page 894, Lord Ormrod said, ...”The only other comment I would make about the background is that so far from this being contrary to anything that was aid by this court in Wachtel v Wachtel the court, as appears clearly from the judgment of Lord Denning MR, contemplated that in a situation like this one of the ways of solving the problem would be to transfer the home to the wife and to relieve the husband, so far as it was possible or reasonable to do so, of the responsibility for making periodical payments. Of course, the court was not laying it down as law, or as a rule of practice or anything of the kind; it was set out there as one of the possible solutions, and one of the possible ways of meeting the requirements of s 25 in this type of case, and in my judgment it is very much more likely to produce in many cases a fair and just result... ...... ... ... ... ... ... ... .

Again, in Dunford v Dunford [1980] 1 A.E.R. 122, Lord Denning Ming M R at 125 said, ...

“It seems to me that the judge made his order in accordance with the modern principle of the 'clean break' so that both parties will know hereafter exactly where they stand. At all events, subject to the variation, which I have indicated, it seems to me that the order of the judge was right, and I would dismiss the appeal and, incidentally, the cross-appeal. I do not think the wife should have this house vested in her completely as she wanted”...

However, the cases havwn that the “clean break” approach adopted by the Courts ts nowadays are not always resolved in exactly the same way. The final resolution of the dispute is always the result of the facts in each case in the interest of justice.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> As I have already said, the Respondent's side has not been put to the Court. He has however remarried and has a family. He is now an employee of Solomon Telekom Company. I assume he is living in a Company house or a house rented by his employer. His monthly earning and expenses are not known. The fact that he did. not appear in Court to oppose or accept the Petitioner's Summons worries me. One view is that silence means consent on his part. The other view is that he is prepared to accept whatever the Court decides in this case. Yet, another view is that he does not consent. The loan was for 15 years and would have been paid off by 1999. The Petitioner is a disabled person whose doctor’s advice is that the need to continue taking medication for life requires that she lives close by to be able to have easy access to the National Referral Hospital in Honiara to receive medical advice and review of her medical condition. She has lived in the house with 5 adopted children since 1999. I am also concerned about the Respondent losing his property interest in the house by the stroke of the pen if I give all to the Petitioner. I think paragraph 2 of the Petitioner's affidavit is pertinent in this regard. This paragraph states, ...

“Attempts to have our matrimonial properties settled out of coas now proved unsuccessful”...

This paragraph speaks for itself. Clearly, the Respondent dot agree to the property sety settlement proposed by the Petitioner. He opposes it. I think this case should be treated on the basis of the "clean - break" approach developed and adopted in. England by Lord Denning M.R. I am tempted to do this in this case. However, there is problem. It is that the “clean-break” approach developed in England and emulated by Lord Denning M.R. in Wachtel v Wachtel cited above and subsequently applied in subsequent cases was based upon section 4 of the Matrimonial Proceedings and Property Act 1970 of the United Kingdom. In terms of section 76 as read with Schedule 3 to the Constitution, this Act does not apply to Solomon Islands because it came into force prior to 1st January, 1961. Whilst I regret that, I must return to section 17 of the Married Women's Property Act 1882 and apply it. In this regard, I have already decided that the Petitioner is entitled to half share in the property on Parcel No. 191-039-31. The question now is to decide whether or not she would continue to live in the house. I do not have the power to transfer the property to the Petitioner absolutely or with conditions. In Cobb v Cobb [1955] 2 A.E.R. 696, Lord Denning did not rule out the possibility under section 17 of the Married Women's Property Act 1882 if an order being made by the Court allowing the wife to remain in the matrimonial home depending upon the circumstances of the case. At page 699, Lord Denning said, ...

“The second question is whethe judge was right in ordering, as he did in this case, a sa a sale with vacant possession, and in aid of it that the wife should be evicted. I do not think so. Apart altogether from the fact that she was co-owner of the house with him, she is his wife. It may be that she is an entirely innocent party; if so, his duty as a husband is to provide a roof over her head, and it would not be right for her to be turned out into the street. As co - owner she is in an even stronger position; she cannot be turned out unless the court thinks it right to order a sale, and this is neither the time nor the occasion for such an order. The matter can best be considered by the matrimonial court when it comes to deal with alimony or maintenance. That court could, on proper application being made, order a sale, but might think it right to let the wife stay in the house with a reduction in the maintenance which would otherwise be payable by the husband"...

ass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> In this case, there is no evidence to suggest that the Respondent is demanding the Petitioner to vacate the property since occupation by the Petitioner in 1999. Maintenance is one of the issues raised here though not directly but it does bear some weight in the consideration of the Petitioner's request to control the possession of the house. The Respondent may well feel that the Petitioner can continue to occupy the house until her death or until she sells it in order to move to another place. This is not an easy case to decide in the absence of clear evidence of the intention of the Respondent. Doing the best I can in this case, I would order that -

1. The fibre glass boat being the property of t of the Respondent be returned to her within 60 days.

ass="Mss="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> 2. The Petitioner is entitl half share in the propertyperty on Parcel No. 191-039-31.

3. The Petitioner and the children continue to octo occupy the house until her death or until such time she sells the house upon which the proceeds of sale be divided equally between them. I make no order as to the properties on Small Malaita. The parties are at liberty to apply to the Court for an order as the case may be. Cost be in the cause.

F.O. bui

Judge