Saimei v Kenekene [2007] SBHC 54; HCSI-CC 243 of 2005 (31 May 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 243 of 2005

JOSEPH SAIMEI

V.

ROSE KENEKENE

(Palmer CJ.)

Date of Hearing: 10th May 2007
Date of Judgement: 31st May 2007

P. Tegavota for the Respondent/Applicant
W. Faga for the Petitioner/Respondent (no appearance)

Palmer CJ.:

On 19th April 2007 this Court adjourned the issue in dispute over what should be done regarding the matrimonial home[1] of the parties, to 10 May 2007 at 9.30 a.m. All parties with their lawyers had been present at the hearing of 19 April 2007. On 10 May at 9.30 a.m. however, only the Respondent ("Kenekene") with her Counsel appeared, the Petitioner ("Saimei") and his Counsel did not. No explanation was provided. I then proceeded to hear argument on the part of Kenekene.

The parties were married on 1st August 1991 at the Central Magistrates Court in Honiara. In 1996 they obtained a loan of $40,000.00 together from the Solomon Islands Home Finance Limited ("Home Finance") for the purchase of the matrimonial home. It was then registered in their names as joint owners. The parties separated in 2002.

From 1996 to 2001, Kenekene jointly assisted with the loan repayments to the house. She contributed a total of $10,094.00. Saimei on the other hand had contributed a total of some $38,773.98 as at 30th June 2006.

The amount of arrears outstanding on the property, as at July 2006, was $5,823.61. Saimei has had the benefit of the house since their separation (2002) to date. Kenekene now comes to Court for orders for possession and title of the house so that she and the children can move in and reside in the house.

In any separation, the children’s interest must be paramount. That includes their welfare, upkeep and residence. Where there is a matrimonial home, it is my respectful view that such shared property must first of all be considered in favour of the children. What should guide a court as well on the distribution of matrimonial property relates to the question of custody of the children; who has custody. In this case, whilst joint custody was granted, it was ordered the children were to reside with Kenekene with reasonable access rights granted in favour of Saimei. Accordingly it is my respectful view that the house should be transferred in favour of the two children of the marriage and possession granted to Kenekene so that she and the children may reside in the matrimonial home. Loan repayments on the house however should still continue by the parties until the property is completely paid off. As to what rate should be paid by each should be settled between the parties themselves in the first instance, failing which the matter can be brought back to Court for determination.

I have decided on this course of action rather than to order that the property be valued, sold, the outstanding loan and arrears paid off and the balance shared out equally between the parties. Although the parties may receive some monetary benefit, ultimately no body will be better off especially the children. When housing is a problem and difficult in the city, having a place to reside in for the children will greatly assist towards providing a stable home environment for their upbringing.

On the question of costs, each party should bear their own costs.

Orders of the Court:

1. Direct that title to the property in the fixed-term estate in parcel number 191-001-111 in the joint names of Joseph Saimei and Rose Saimei be transferred in favour of the two children, Olinda Rose, Sharrol Moutai as owners in common in equal undivided shares. Since they are still children, title should be held in trust by Saimei and Kenekene until the children reach the age of 21 years when title can then be transferred in their favour.
   
2. Where either party refuses to execute the transfer instrument, the Registrar of the High Court shall execute the instrument in lieu thereof.
   
3. Possession is granted in favour of Kenekene and the children of the marriage.
   
4. Unless otherwise agreed, the matrimonial home is to be vacated by Saimei within thirty days hereof and possession given to Kenekene and the children.
   
5. Each party is to continue with loan repayments as usual.
   
6. Each party to bear their own costs.
   

THE COURT

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^[1] This consisted of a house located at White River on fixed-term estate in parcel number 191-001-111