Arp v Arp [2008] WSSC 35 (13 June 2008)

IN THE SUPEME COURT OF SAMOA
HELD AT APIA

BETWEEN:

LEIATAUA JAMES ARP
of Lalovaea, Businessman.
Petitioner

AND:

EPIFANIA ARP
of Alafua, Businesswoman.
Respondent

Counsel: T R S Toailoa for petitioner
T K Enari for respondent

Hearing: 29 November 2007
Written submissions: 30 January and 1 February 2008
Conclusions: 30 May 2008
Judgment: 13 June 2008

JUDGMENT OF SAPOLU CJ

Introduction

[1] In this judgment I will refer to the petitioner as the husband and to the respondent as the wife.

[2] On 29 March 2004, the husband filed a petition for dissolution of marriage on the ground of an oral separation agreement between him and his wife which had been in force for not less than 3 years. The husband also sought in his petition ancillary relief by way of an order to remove the wife and her partner from the land and house she is occupying at Alafua which the husband claimed is his individual property.

[3] By motion filed on 27 April 2004, the wife sought custody of the female child of the marriage, maintenance for the children of the marriage, alimony, and transfer of the land and house at Alafua to her. The wife also indicated in her motion that she did not wish to contest the petition for dissolution of marriage.

[4] The wife in support of her motion filed an affidavit she had sworn on 20 April 2004. Subsequently, she filed another supporting affidavit sworn on 3 September 2004.

[5] On 5 July 2004 Vaai J granted the husband’s petition so that his marriage to his wife was dissolved on that day. The wife did not appear at the hearing of the petition.

[6] There then followed numerous adjournments of the motions for ancillary relief by the husband and the wife until the matter came up for hearing before me on 29 November 2007. On that day, the husband presented at trial an affidavit sworn on 29 November 2007 as part of his evidence.

[7] At the beginning of the trial, I directed that the wife’s motion for maintenance of her children be referred to the District Court which has jurisdiction to deal with maintenance applications and which has over the years accumulated a wealth of experience in that area of the law. That left for hearing before this Court the husband’s motion for an order to remove the wife and her partner from the land and house at Alafua and the wife’s motion for custody of the female child of the marriage, alimony, and for an order that the land and house at Alafua be transferred to her.

[8] As it will appear from what follows, the husband and the wife were in agreement throughout the trial that the Alafua property should be transferred to their two sons.

Background

(a) The husband and the wife in New Zealand

[9] The husband and wife were married in Auckland, New Zealand, on 2 November 1973. The husband was then 22 years and the wife was 19 years. They then lived together and started up their family in Auckland. So when they divorced in 2004 they had been married for about 31 years. But since the husband separated from the wife in January 2001, the marriage effectively lasted for 27 years and 2 months.

[10] In 1980 their eldest child, a son, was born. There second child, another son, was born in 1984. Both sons seem to have done very well at school as shown by the fact that they both attended Auckland University. The third child, an adopted daughter, was born in 1998.

[11] The evidence is silent as to how the husband and the wife lived their lives in Auckland after they got married and when their two sons were born. However, there was evidence given by the wife that their marriage was perfect until they returned to live in Samoa in 1995. So the marriage must have been a happy one while the husband and wife were living in Auckland.

[12] Whilst in Auckland, the husband and the wife would send money to their respective parents and families as is the custom with many Samoan married couples when requested for financial assistance by their parents and families. The wife’s evidence was also to the effect that they assisted financially in bringing over from Samoa to New Zealand some of her husband’s siblings and paying for their education in New Zealand.

[13] After Auckland the husband and the wife and their two sons moved to Los Angeles in the United States. It is not clear from the evidence when that happened but the evidence seems to suggest it was after the birth of the second son in 1984.

(b) The husband and the wife in the United States

[14] In Los Angeles the husband worked at the Los Angeles agency of the Commonwealth Bank of Australia whilst the wife worked at another bank. Part of their earnings was spent on the maintenance and upkeep of their family and part was placed in the joint bank account they kept. It also appears from the husband’s evidence that part of his salary was deducted and paid into a pension fund.

[15] They continued to send money to their respective parents and families as they had done in Auckland when they were requested for financial assistance. However, there is a conflict between the evidence of the husband and that of the wife in this connection which took up a significant part of the trial. This is in relation to a request from the husband’s mother in Auckland for US5,000 to pay for the expenses of moving her and the husband’s father’s belongings from Auckland to Samoa. The wife testified that they did send US$5,000 from Los Angeles to the husband’s mother; the husband testified that no money was sent to his mother to meet her request. The question then, is, did the husband and the wife send US$5,000 to the husband’s mother. I will deal with this question later.

[16] According to the evidence of the husband, the Los Angeles agency of the Commonwealth Bank of Australia closed down in April 1993 and he was paid a severance package of US$11,165. At that time he had made up his mind to invest in a business in Samoa. From his severance pay he then purchased three Suzuki sidekick vehicles which he sent to someone in Samoa that he knows to be rented out in his rental car company.

[17] In 1993, the husband also incorporated a rental car company in Samoa known as South Pacific Rental Ltd. He allotted 40,000 shares each to himself and his wife and 10,000 shares each to their two sons. There was no financial contribution from the wife to the shares allotted to her.

[18] In 1993 the husband also took out a loan of $50,000 with the then Pacific Commercial Bank in Apia and purchased seven more vehicles in Los Angeles. With the three Suzuki sidekick vehicles he had already purchased with his severance pay in Los Angeles and sent to Samoa, that must have increased the number of his vehicles to ten. In early 1994 he came to Samoa and started a rental car business under the style Southpac Rentals. He also increased his loan with the then Pacific Commercial Bank to $70,000 and took out an overdraft facility of $10,000.

(c) Did the husband and the wife send US$5,000 to the husband’s mother?

[19] The wife testified that it was one day when she and her husband were living in Los Angeles that they received a letter from the husband’s mother in Auckland requesting US$5,000. This money was needed by the husband’s mother to pay the expenses of moving her and her husband’s belongings form Auckland to Samoa. From the documentary evidence produced by the wife, that letter from the husband’s mother must have been sent prior to 5 September 1988 because the receipt that was issued by the husband’s mother for the US$5,000 bears the date 5 September 1988.

[20] In his evidence, the husband did not deny that his mother sent a letter requesting US$5,000. In fact it is clear from the husband’s evidence that he does admit receiving the said letter from his mother.

[21] The wife further testified that the husband’s mother had also said in her letter to give her US$5,000 and she would give them, meaning the husband and the wife, her land at Alafua. The wife, in her evidence, also said that after receiving the letter from the husband’s mother, they sent her the money she had asked for. But it was not in one lump sum. The money was sent by instalments of US$500, USD$600, and the like.

[22] What happened, according to the wife, was that the husband would give her money and she would go to a post office or bank in Los Angeles and remit the money to the husband’s mother. Sometimes the husband would, himself, remit money to his mother but he would always tell her about it. Sometimes she would remit her own money but most of the money was given to her by the husband. It also appears from the wife’s evidence that the husband’s mother would send them receipts for the monies remitted to her by instalments until the US$5,000 was fully remitted to her.

[23] This part of the wife’s evidence about the receipts from the husband’s mother was put to the husband in a series of questions by counsel for the wife during cross-examination and the husband’s answers did not directly respond to or deny the wife’s evidence about the receipts except to say that no money was sent to his mother.

[24] After the full amount of US$5,000 was remitted to the husband’s mother in accordance with the wife’s evidence, the mother then sent a receipt dated 5 September 1988 for the said amount. This receipt was made out in the name of the husband.

[25] Subsequently by letter dated 8 May 1991 (a photocopy of which was produced by the wife), the husband’s mother wrote from Auckland to a solicitor in Apia. In that letter the husband’s mother said that she has a daughter Shirley Kirkpatrick who lives at Siusega and who represents her and her husband on any legal matters as they are living in New Zealand but hoping to return to Samoa to stay for good in the near future. The mother also said in the same letter to the solicitor in Apia that she has instructed her daughter Shirley Kirkpatrick to hand over the deeds of her half acre of land at Alafua to be transferred to her eldest son. This is the husband in these proceedings. The mother then concluded her letter by saying:

"Enclosed is receipt of $5,000.00 US as full payment for ½ acre block registered in my name.

"Please contact me at the above address for further information and advise me about your fee.

"I remain,

"Yours faithfully,

"Feauina Arp.

[26] Photocopied onto the photocopy of the letter of 8 May 1991 by the husband’s mother is a receipt dated 5 September 1988. This receipt acknowledged receipt from the husband of the sum of US$5,000 for the purchase of half an acre of land at Alafua. The receipt is then signed by the husband’s mother.

[27] It is unfortunate that the husband’s mother and the solicitor to whom she sent her letter of 8 May 1991 have both passed away so that they could not be called as witnesses in these proceedings. However, during the trial, the husband twice confirmed under cross-examination that the handwriting in the said letter of 8 May '1991 is that of this mother. This is the letter which states: " Enclosed is receipt of $5,000.00 US as full payment for the ½ acre block registered in my name". When the husband was asked whether he recognised the handwriting in the receipt he replied: "it appears that this is my mother’s handwriting."

[28] Counsel for the husband objected to the admissibility of the photocopies of the letter of 8 May 1991 and the receipt dated 5 September 1988 on the basis that they are not originals. Counsel for the wife responded that he had been told that his client had the original of the receipt and undertook to produce it later. However, counsel was not able to produce the original of the receipt.

[29] In relation to the letter of 8 May 1991, the wife said under cross-examination that was the letter sent by the husband’s mother to the late solicitor in Apia and the copy she has produced is the copy of that letter which the husband’s mother had sent to her and her husband. She also said that she and her husband had kept a personal file and when she went through that file she found this letter of 8 May 1991 from the husband’s mother to the solicitor. That is the letter she has produced. Obviously the wife could not have got the original of that letter because the original was sent to the solicitor.

[30] An important factor here is that the husband twice confirmed under cross-examination that the handwriting in the letter is that of his mother. He also confirmed he has a sister named Shirley Kirkpatrick referred to in the letter produced by the wife. The husband also did not deny outright that his mother actually wrote to him and his wife for US$5,000 as the wife testified. In fact his evidence implies that such a letter was sent by his mother but no money was remitted to her.

[31] In relation to the receipt dated 5 September 1988, counsel for the wife did not explain why it was not possible to produce the original of the receipt. However, the wife’s evidence is that the letter she has produced is the letter that she found in their personal file with her husband. As earlier mentioned, photocopied onto that letter is a receipt dated 5 September 1988 which is the receipt the wife has been referring to in her evidence.

[32] The said receipt was also made out to the husband and is in his name. So it is more probable that the original of the receipt would be with the husband than the wife unless it has been lost given that the receipt was issued in 1988 almost 20 years before the hearing of this matter. When the photocopy of the receipt was shown to the husband and he was asked whether he recognised the handwriting in it he replied "it appears this is my mother’s handwriting." He also did not deny under cross-examination the evidence to be given and was actually given by the wife that his mother did send receipts for the monies remitted to her until the US$5,000 was fully remitted.

[33] I should also refer at this point to another part of the wife’s evidence which is relevant in this connection. The wife also said that at one time whilst they were living in Los Angeles they came to Samoa to visit the husband’s mother in Samoa. This must have been after 8 May 1991 because when the mother wrote her letter of that date, it is clear she was writing from Auckland. The wife said that her husband told her on that occasion that there was a dispute between him and his sisters. When she asked her husband why, he replied it was because his mother was transferring her land to him alone when it should have been transferred to all his sisters. The husband then told her to take all the receipts to show to his sisters when they come to Samoa that they had purchased the land from his mother. That was done and she came with the receipts to Samoa in order to quell any argument between her husband and his sisters.

[34] That part of the wife’s evidence was also put to the husband by counsel for the wife during cross-examination. He did not answer that part of the wife’s evidence that he told her to bring the receipts with them to Samoa to quell any argument with his sisters regarding the transfer of his mother’s land to him alone. This adds confidence to the credibility of the wife’s evidence that they did send monies to the husband’s mother when she asked them for US$5,000 and the mother did issue receipts for the monies remitted to her.

[35] By deed of conveyance dated 26 August 1991, the mother gifted her land at Alafua to her son, the husband in these proceedings, in consideration for the love and affection she bears towards him. The deed was prepared by a solicitor in Apia but must have been executed by the mother in Auckland. What appears unusual here is that the deed was prepared by a different solicitor from the one to whom the letter of 8 May 1991, which acknowledged receipt of US$5,000 from the husband, was addressed. Neither party provided any explanation for this.

[36] Then in a letter dated 18 October 1991 which is annexed to the husband’s affidavit sworn on 29 November 2007, which is the date of the hearing of this matter, and addressed to the husband, the wife and their children, it is said:

"Hallow everyone. Hope this letter finds you well. As for us we are not so bad healthwise.

"Enclosed is the copy of the deed at Ma’s place. Should you go to Samoa then you go and see the lawyer Drake. Everything is now legalized in your name. You should ask for the deed or copy of the deed. The enclosed one was only a photostat copy I did before sending the deeds to Samoa. I feel much better now, as for the 5 thousand US I mentioned before – you just forget it. Should I need help later I can always ask. But you don’t have to pay that money. Consider the whole transfer of my piece of land a gift from our hearts. Dad too got mad with me for suggesting it. He said we are selling land and we will be O.K."

This letter is then signed: "Mum & Dad"

[37] Much reliance was placed by the husband during his evidence on this letter dated 18 October 1991 to show that he and his wife did not send US$5,000 to his mother as claimed by his wife.

[38] After careful consideration of the relevant evidence, I have decided to accept the evidence of the wife as credible regardless of whether the copies of the letter of 8 May 1991 and the receipt dated 5 September 1988 are admissible or not.

[39] The wife’s evidence about receiving a letter from the husband’s mother asking for US$5,000 and how that money was raised and remitted by instalments was detailed and well presented. The husband did not in his evidence deny that a letter was actually sent by his mother asking for US$5,000. He merely stressed that no money was sent relying on the letter dated 18 October 1991. When the evidence of the wife regarding the receipts from the husband’s mother for the monies sent to her until the US$5,000 was fully remitted was put to the husband during cross-examination, he did not deny that evidence either; his answers were evasive. The wife’s evidence that the husband told her to bring the receipts with them when they visited his mother in Samoa to be shown to his sisters who were apparently unhappy with the transfer of the land to the husband alone, was also put to the husband during cross-examination and he did not deny that evidence either. After considering this evidence given by the wife, I am of the clear view that it must be accepted as credible without even having regard to the copies of the letter of 8 May 1991 and the receipt dated 5 September 1988. It follows that I do not accept what is said in the letter of 18 October 1991 that the husband’s mother was not sent US$5,000 as she requested from the husband and the wife.

[40] If one were to take into account as admissible the letter of 8 May 1991 and the receipt dated 5 September 1988 both signed by the husband’s mother, that is clear evidence which shows that the husband’s mother was sent US$5,000 which she received. Given the date of the receipt, it must mean that the request from the husband’s mother for US$5,000 was made prior to 5 September 1988 which is the date of the receipt. I cannot accept that the husband’s mother would have waited for more than three years until 18 October 1991 to say that she had not received the US$5,000 she had asked for from the husband and his wife prior to 5 September 1988. That would seem odd and strange.

[41] I find the letter dated 18 October 1991 which is annexed to the husband’s affidavit sworn on 27 November 2007 rather suspicious that it does not inspire confidence in it. I prefer and accept as credible evidence the letter of 8 May 1991 and the receipt dated 5 September 1988 annexed to the wife’s affidavit filed and sworn on 20 April 2004.

[42] I have, therefore, come to the conclusion that the evidence about the husband and the wife having sent US$5,000 from Los Angeles to the husband’s mother in Auckland and the related evidence of the wife as to how that money was raised and remitted to the husband’s mother must be accepted. I have also decided to accept the wife’s contention that the land at Alafua was "gifted" to the husband by his mother in recognition of the US$5,000 remitted to her from Los Angeles. No doubt the mother had natural love and affection for her son. But I do not believe that was the dominant reason for her transferring her land at Alafua to her son alone and not to any of her other children.

(d) The husband and the wife in Samoa

[43] In 1995 the husband, the wife and their children left Los Angeles and came to Samoa. They stayed for three years at the house of the wife’s parents at Tulaele where they set up their rental car business under the style Southpac Rentals. The business thrived and by 1997 it had a fleet of fifteen vehicles. However, as it appears from the wife’s evidence, the family’s return to Samoa was to have unhappy consequences for their marriage due to infidelity on the part of her husband. A similar allegation was made by the husband against the wife but it was strongly denied by her.

[44] The husband testified that in March 1997 he shifted out of the house of his wife’s parents and took with him seven of the vehicles leaving eight vehicles with his wife. He moved to his father’s house at Alafua where he carried out a rental car business. The husband deposes in his affidavit that he took out an additional loan of $25,000 and sold two vehicles for $20,000 giving a total capital of $45,000 which he used to start the construction of a house at Alafua. The wife testified that the reason for her husband shifting out of her parents house was because she found out that a girl was pregnant by him.

[45] Around September 1997, the husband went to the United States and withdrew his pension from which he received two cheques of US$9,683.09 and US$12,116.36. He used that money to purchase additional building materials for the house he was building at Alafua as well as two vehicles.

[46] According to the husband in his affidavit, around December 1987, when the house at Alafua was almost complete, his wife and their two sons joined him at Alafua and the family lived together again. The rental car business then paid for the house loan which at the time was around $70,000.

[47] The wife deposes in her affidavits of 20 April 2004 and 3 September 2004 that when she resumed cohabitation with her husband in 1998 she set out to make the Alafua house a good home for their children and themselves. The house was only a shell at that time. She was also responsible for the landscaping and gardens. Later she added the verandahs to the front and rear of the house. She also attended to the furnishings of the interior. All this was done whilst she was also helping out with the administration of their rental car business. After the parties separated in January 2001, the wife also built a garage. The husband on the other hand made frequent trips to the United States to purchase good second hand cars to increase their rental fleet.

[48] In 1998 the parties adopted a female infant born 1 January 1998. In the same year the husband and the wife purchased a house in Auckland for NZ$250,000 which they jointly owned. The purchase was arranged by the husband. The initial deposit of NZ$20,000 was paid from the funds of their rental car business and a mortgage was taken out for the balance of the purchase price which was provided by a bank. Part of the house was rented to a sister of the wife and her husband. The monthly payments for the mortgage were then funded from the rental of part of the house and monies from the parties rental car business Southpac Rentals.

[49] The marriage, however, became unstable again and in January 2001 the husband moved out of the Alafua house and lived with another female whom he married in 2005 after he divorced the wife in 2004. So effectively, the marriage lasted for just over 27 years from 2 November 1973 to January 2001 when the parties separated for good.

[50] In 2001 after the parties separated in January, the wife bought out the husband’s share in their house in Auckland for about NZ$45,000 in accordance with a formula worked out by their respective solicitors. The outstanding balance of the mortgage on that house at that time was about NZ$215,000. That was left to the wife to pay. She is now the sole owner of the Auckland house. The two sons of the marriage had used the house to live in while attending university in Auckland but each of them was provided with a car by their father.

[51] When the parties separated, their fleet of rental cars was split and the husband took sixteen vehicles with him whilst the wife kept eighteen vehicles. The husband has since set up a new rental business whilst the wife has continued to operate her rental business under the style Southpac Rentals.

[52] At the time the parties separated they also had three accounts with three different banks, all with loans on them and without any credit balance. They splitted those accounts. The account which was in the name of the husband with a debit balance of $76,519.94 was given to the husband to repay. The other two accounts which were in the name of Southpac Rentals had a total debit balance of $57,158.27 and were left with the wife to repay.

[53] In his affidavit of 29 November 2007, the husband states that after he resumed cohabitation with his wife in December 1997, their rental car business was then paying for the house loan which at the time was around $70,000. However, the husband then states in the same affidavit that the following was spent on the construction of the Alafua house: (a) a loan of $25,000, (b) personal funds of $23,082.20, (c) his pension funds of $30,048.58, (d) proceeds from the sale of two vehicles $20,000, and (e) contribution from the rental car business of $20,270.60. The total amount spent on the construction of the house was therefore $124,401.38.

[54] It is not clear from the expenses the husband states that he incurred for the construction of the Alafua house what had happened to the house loan of $70,000 that was being paid from the rental car business. That is not mentioned in the expenses listed by the husband for the construction of the Alafua house although one suspects that the amount of $20,270.80 which is listed amongst the expenses for the construction of the Alafua house had gone into payment of the house loan.

(e) The daughter

[55] As earlier mentioned, the third child of the marriage is the parties adopted daughter born on 1 January 1998. She would now be ten years. She attends school. According to the husband she is quite a smart girl.

[56] Both parties love their daughter and both want to have custody of her. This is not uncommon with parents who love their children. However, in a case of disputed custody of a child the paramount consideration is what is in the best interests of the child. The child’s welfare takes priority over the wishes of the parents.

[57] It appears from the evidence that the daughter spends most of the time with her mother who takes care of her and takes her to school and picks her up from school. The same happens when the daughter spends time with her father. However, I agree with the husband that for the stable upbringing of his daughter one of the parties has to have custody of her.

[58] Each of the parties gave reasons as to why the other party should not be awarded custody of their daughter and that custody should be awarded to him or her. I do not need to go over the evidence that was given by both parties in this regard. I have decided that in the circumstances, including the young age of this child and the fact that she spends most times with her mother, the custody of the daughter should be awarded to the wife who has indicated her willingness for reasonable access to be reserved to the husband if custody of their daughter is awarded to her.

Relevant Law

(a) The search for principles

[59] Matrimonial property is one important area of Samoan law where there is no legislation. In consequence, there are no statutory guidelines on how to deal with applications for ancillary relief and the distribution of properties in matrimonial property disputes between a husband and wife when their marriage falls apart. The Samoan Courts have therefore had to look to other common law jurisdictions for principles to guide them in the resolution of matrimonial property disputes. That search for principles is still continuing.

[60] The first serious attempt at finding principles to guide the Courts approach to the resolution of matrimonial property disputes was made in Elisara v Elisara [1994] WSSC 14. In that case this Court referred to the common law approaches which were being applied in England, Australia, Canada and New Zealand to property disputes between married and unmarried couples.

[61] Those approaches were: (a) the trust device as in Gissing v Gissing [1970] 2 A11 ER 780; [1970] UKHL 3; [1971] AC 886; (b) the common intention of the parties as derived from the speeches of Lord Reid and Lord Diplock in Pettit v Pettit [1969] 2 A11 ER 385: [1969] UKHL 5; [1970] AC 777; Gissing v Gissing [1970] 2 A11 ER 780; [1970] UKHL 3; [1971] AC 886; (c) the Lord Denning approach of "What is reasonable and fair in the circumstances as they have developed seeing that they are circumstances which no one contemplated before" in Appleton v Appleton [1965] 1 WLR 25; [1965] 1 A11 ER 44 which was subsequently overruled by the House of Lords in Pettit v Pettit (supra) and Gissing v Gissing (supra); (d) the test of what is unconscionable conduct in the circumstances which found favour with the High Court of Australia in Muschinski v Dodds [1985] HCA 78; [1985] 160 CLR 583; Baumgartner v Baumgartner [1987] HCA 59; [1987] 164 CLR 137; (e) the unjust enrichment approach in Canada as in Murdoch v Murdoch [1975] 1 SCR 423 per Laskin J; Rathwell v Rathwell [1978] 2 SCR 436 per Dickson J; Pettkus v Becker [1980] 2 SCR 834 per Dickson J; Sorochan v Sorochan [1986] 2 SCR 38 per Dickson CJ; and (f) the reasonable expectations of the parties test advocated in New Zealand in relation to unmarried couples by Cooke P in Hayward v Giordani [1983] NZLR 140; Pasi v Kamana [1986] NZCA 93; [1986] 1 NZLR 603; Oliver v Bradley [1987] NZCA 70; [1987] 1 NZLR 586; and Gillies v Keogh [1989] NZCA 168; [1989] 2 NZLR 327.

[62] Since the decision in Elisara v Elisara [1994] WSSC 14, there have been significant developments in England in the area of matrimonial property. These developments are a mixture of statute and common law. Having considered those developments, I am of the respectful view that they provide relevant principles which may be used to guide the approach to be taken by the Samoan Courts to the resolution of applications for ancillary relief in, or following, a petition for dissolution of marriage.

[63] However, there are three matters to be noted. The first is that I propose to refer only to those principles discussed in the English authorities which are relevant for the resolution of this case. But there are other principles discussed in those authorities that are not relevant to this case. It is, therefore, strongly recommended that any counsel who has to advise or take up a case in this area of the law should read those authorities in full. The second matter is that the relevant English authorities are concerned with the provisions of the Matrimonial Causes Act 1973 (UK) as amended, which empower the Court on granting a decree of divorce and in certain other circumstances, to make financial provision orders and property adjustment orders as between the parties to a marriage, as well as the matters to which the Court is to have regard in the exercise of those powers. The third matter is that even though the English authorities are concerned with the provisions of the Matrimonial Causes Act 1973 (UK) as amended, they do contain statements of principles of general application to proceedings for ancillary relief following the dissolution of a marriage. As mentioned earlier, the current English developments in this area are a mixture of statute and common law as developed by the Courts.

(b) Approach and principles

[64] In two landmark decisions in Miller v Miller [2006] UKHL 24 and White v White [2000] UKHL54; [2000] UKHL 54; [2000] 3 WLR 1571 the House of Lords articulated principles to be applied by the English Courts in the resolution of matrimonial property disputes between parties to a marriage following its dissolution. In my respectful view the principles articulated in those cases as referred to in this judgment are relevant to the resolution of the issues in this case.

[65] In the exercise by the Court of its wide discretion when dealing with matrimonial property disputes following the dissolution of a marriage, the primary objective of the English approach is fairness. What is a fair outcome taking into account all the circumstances is the primary consideration. Even though the principle of equality is invoked as an aid to achieving what is fair, the primary objective of the English approach is still fairness.

[66] In White v White [2000] UKHL 54, Lord Nicholls of Birkenhead who delivered the leading judgment stated at paras 1 and 2:

"1. Divorce crates many problems. One question always arises. It concerns how the property of the husband and wife should be divided and whether one of them should continue to support the other. Stated in the most general terms, the answer is obvious. Everyone would accept that the outcome on these matters, whether by agreement or Court order, should be fair. More realistically, the outcome ought to be fair as is possible in all the circumstances. But everyone’s life is different. Features which are important when assessing fairness differs in each case. And, sometimes, different minds can reach different conclusions on what fairness requires...

"2. So what is the best method of seeking to achieve a reasonably accepted standard of fairness? Different countries have adopted different solutions. Each solution has its own advantages and disadvantages. One approach is for the legislature to prescribe in detail how property shall be divided. A system along these lines has been preferred by the New Zealand legislature, in the Matrimonial Property Act 1976. Another approach is for the legislature to leave it all to the Judges. The Courts are given a wide discretion, largely unrestricted by statutory provisions. That is the route followed in this country. The Matrimonial Causes Act 1973 confers wide discretionary powers on the Courts over all the property of the husband and the wife..."

[67] As it would be seen from the above statements, the English authorities on the wide statutory discretion given to the Courts to deal with the division of matrimonial properties would be more relevant to the position in Samoa than the New Zealand authorities on the detailed statutory provisions of the New Zealand legislation on the division of matrimonial properties.

[68] After mentioning that under the Matrimonial Causes Act 1973 (UK) the first consideration should be given to the welfare of the children of the marriage, Lord Nicholls in White v White [2000] UKHL 54 stated in paras 24, 25 and 26:

"24. Self-evidently, fairness requires the Court to take into account all the circumstances of the case... It is also self-evident that the circumstances in which the statutory powers have to be exercised vary widely... But there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and there respective roles. Typically, a husband and wife share the activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money earner, and the husband runs the home and cares for the children during the day. But whatever the division of labour chosen by the husband and the wife, or forced upon them by the circumstances, fairness requires that this should not prejudice or advantage either party when considering... the contribution which each has made or is likely...to make to the welfare of the family, including any contribution by looking after the home or caring for the family. If, in their different spheres, cash contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-bearer...

"25. A practical consideration follows from this. Sometimes, having carried out the statutory exercise the Judge’s conclusion involves a more or less equal division of the available assets. More often this is not so. More often, having looked at all the circumstances, the Judge’s decision means that one party will receive a bigger share than the other. Before reaching a firm conclusion and making an order along these lines, a Judge would always be well advised to check his tentative views against the yardstick of equality of division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so."

[69] In Miller v Miller [2006] UKHL 24, Lord Nicholls stated at para 1:

"1. In White v White [2001] 1 AC590...the House emphasised that in seeking a fair outcome there is no place for discrimination between a husband and wife and their respective roles. Discrimination is the antithesis of fairness. In assessing the parties contributions to the family there should be no bias in favour of the money-earner and against the home-maker and the child-carer. This is a principle of universal application. It is applicable to all marriages."

[70] Lord Nicholls then said at para 4 of his judgment that the concept of fairness is grounded in social and moral values. But those values can change from one generation to the next His Lordship then referred in paras 10-16 to the three strands or principles which inform the concept of fairness. These are needs, compensation and sharing. In the circumstances of this case, I need only refer further to what His Lordship said about the third strand or principle which is sharing.

[71] Lord Nicholls said at paras 16-17:

"16. A third strand is sharing. This ‘equal sharing’ principle derives from the basic concept of equality permeating a marriage as understood today. Marriage, it is often said, is a partnership of equals. In 1992 Lord Keith of Kinkel approved Lord Emslie’s observation that ‘husband and wife are now for all practical purposes equal partners in marriage’: R v R [1991] UKHL 12; [1992] 1 AC 599, 617. This is now recognised widely, if not universally. The parties commit themselves to sharing their lives. They live and work together. When their partnership ends each is entitled to an equal share of the assets of the partnership, unless there is a good reason to the contrary. Fairness requires no less. But I emphasise the qualifying phrase: ‘unless there is good reason to the contrary’. The yardstick of equality is to be applied as an aid, not a rule.

"17. This principle is applicable as much to short marriages as to long marriages: see Foster v Foster [2005] EWCA 565; [2003] 2 FLR 299, 305, para 19 per Hale LJ. A short marriage is no less a partnership of equals than a long marriage. The difference is that a short marriage has been less enduring. In the nature of things this will affect the quantum of the financial fruits of the partnership."

[72] Lord Nicholls then went on in para 20 to comment on the application of the third strand of sharing to ‘family’ assets and ‘business or investment’ assets by saying:

"[The] Courts should be exceedingly slow to introduce, or reintroduce, a distinction between ‘family’ assets and ‘business or investment’ assets. In all cases the nature and source of the parties’ property are matters to be taken into account when determining the requirements of fairness...But ‘business and investment’ assets can be the financial fruits of a marriage partnership as much as ‘family’ assets. The equal sharing principle applies to the former as well as the latter. The rationale underlying the sharing principle is much applicable to ‘business and investment’ assets as to ‘family’ assets.

(c) Matrimonial property and non-matrimonial property

[73] One of the most important issues in this area of the law is the distinction between matrimonial property and non-matrimonial property. It led to a difference of approach between Lord Nicholls and Baroness Hale of Richmond in Miller v Miller [2006] UKHL 24 as it will be seen later. However, this difference in approach makes no difference to the outcome of this case.

[74] In Miller v Miller, Lord Nicholls when dealing with the distinction between matrimonial property and non-matrimonial property said at paras 22-25:

"22. This does not mean that, when exercising his discretion, a Judge in this country must treat all property in the same way. The statute requires the Court to have regard to all the circumstances of the case. One of the circumstances is that there is a real difference, a difference of source, between (1) property acquired during the marriage otherwise than by inheritance or gift, sometimes called the marital acquest but more usually the matrimonial property, and (2) other property. The former is the financial product of the parties’ common endeavour, the latter is not. The parties matrimonial home, even if this is brought into the marriage at the outset by one of the parties, usually has a central place in any marriage. So it should normally be treated as matrimonial property for this purpose. As already noted, in principle the entitlement of each party to a share of the matrimonial property is the same however long or short the marriage may have been.

"23. The matter stands differently regarding property (non-matrimonial property) the parties bring with them into the marriage or acquire by inheritance or gift during the marriage. Then the duration of the marriage will be highly relevant. The position regarding non-matrimonial property was summarized in the White case [2000] UKHL 54; [2001] 1 AC 596, 610.

‘" Plainly, when present, this factor is one of the circumstances of the case. It represents a contribution made to the welfare of the family by one of the parties to the marriage. The Judge should take it into account. He should decide how important it is in the particular case. The nature and value of the property, and the time when and circumstances in which the property was acquired, are among the relevant matters to be considered. However, in the ordinary course, this factor can be expected to carry little weight, if any, in a case where the claimant’s financial needs cannot be met without recourse to this property.’"

"24. In the case of a short marriage fairness may well require that the claimant should not be entitled to a share of the other’s non-matrimonial property. The source of the asset may be a good reason for departing from equality. This reflects the instinctive feeling that parties will generally have less call upon each other on the breakdown of a short marriage.

"25. With longer marriages the position is not so straightforward. Non-matrimonial property represents a contribution made to the marriage by one of the parties. Sometimes, as the years pass, the weight fairly to be attributed to this contribution will diminish, sometimes it will not. After many years of marriage the continuing weight to be attributed to modest savings introduced by one party at the outset of the marriage may well be different from the weight attributable to a valuable heirloom intended to be retained in specie. Some of the matters to be taken into account in this regard were mentioned in the above citation from the White case. To this non-exhaustive list should be added, as a relevant matter, the way the parties organized their financial affairs.

[75] The approach taken by Lord Nicholls regarding property which the parties bring with them into the marriage or acquire by inheritance or gift during the marriage as noted in para. 23 of the above passage, is endorsed by Baroness Hale. Her Lordship stated in para 152 of her judgment:

"152. [I] do not think that these arguments can be ignored. I think that they are irrelevant in the great majority of cases. In the very small number of cases where they might make a difference, of which Miller may be one, the answer is the same as that given in White v White [2000] UKHL 54; [2001] 1 AC 596 in connection with pre-marital property, inheritance and gifts. The source of the assets may be taken into account but its importance will diminish over time. Put the other way round, the Court is expressly required to take into account the duration of the marriage: section 25(2)(d). If the assets are not ‘family assets’, or not generated by the joint efforts of the parties, then the duration of the marriage may justify a departure from the yardstick of equality of division."

[76] The difference in the approach taken by Lord Nicholls and the approach taken by Baroness Hale in Miller v Miller as to what constitutes matrimonial property is explained by Lord Mance, another member of the House of Lords in the same case. In paras 167-169 of his judgment, Lord Mance stated:

"167. Thirdly, this is the area where the approaches of Lord Nicholls and Baroness Hale diverge in some measure, at least in principle. On the one hand, on Lord Nicholls approach, non-matrimonial properly is viewed as all property which the parties bring with them into the marriage or acquire by inheritance or gift during the marriage (plus perhaps the outcome or fruits of that property) while matrimonial property is viewed as all other property. The yardstick of equality applies generally to matrimonial property (although the shorter the marriage, the smaller the matrimonial property is in the nature of things likely to be). But the yardstick is not so readily applicable to non-matrimonial property, especially after a short marriage, but in some circumstances even after a long marriage.

"168. On the other hand, Baroness Hale’s approach takes a more limited conception of matrimonial property, as embracing ‘family assets’ (cf Wachtel v Wachtel [1973] EWCA Civ 10; [1973] Fam 72, 90 per Lord Denning MR) and family businesses or joint ventures in which both parties work (cf Foster v Foster [2003] EWCA Civ 56; [2003] 2 FLR 299, 305, paragraph 19, per Hale LJ). In relation to such property she agrees that the yardstick of equality may readily be applied. In contrast, she identifies other ‘non-business-partnership, non-family assets’, to which that yardstick may not apply with the same force particularly in the case of short marriages; these include on her approach not merely (a) property which the parties bring with them into the marriage or acquire by inheritance or gift during the marriage (plus perhaps its income or fruits), but also (b) business or investment assets generated solely or mainly by the efforts of one party during the marriage.

"169. Baroness Hale acknowledges that the difference between the two approaches will in the great majority of cases be irrelevant."

[77] Whether the approach of Lord Nicholls or the approach of Baroness Hale is applied to this case, the rental car business, Southpac Rentals, set up during the marriage of the parties in which they held equal shares and in which they both worked in developing into a successful business, would be a family business. As such, the rental car business would be matrimonial property. The yardstick of equality would be readily applied to it. And that is what the parties, themselves, have done by splitting up their fleet of rental cars in equal division between themselves. After all this was not a short marriage but one that effectively lasted for more than 27 years.

[78] As for the ‘gift’ of the Alafua land to the husband from his mother, there is no problem in applying the two approaches by Lord Nicholls and Baroness Hale to it. But the nature of that gift will be considered later.

(c) Conduct

[79] As conduct is raised by both parties, especially the wife, in this case, I will refer to the English authorities which deal with this issue in the context of an application for ancillary relief in divorce proceedings. I start with Wachtel v Wachtel [1973] EWCA 10 where Lord Denning MR in delivering the judgment of the English Court of Appeal said:

"When Parliament in 1837 introduced divorce by the Courts of law, it based it on the doctrine of the matrimonial offence. This affected all that followed. If the person was the guilty party in a divorce suit, it went hard with him or her. It affected so many things. The custody of the children depended on it. So did the award of maintenance. To say nothing of the standing in society. So serious were the consequences that divorce suits were contested at great length and at much cost.

"All that is altered. Parliament has decreed:- ‘If the marriage has broken down irretrievably, let there be a divorce.’ It carries no stigma but only sympathy. It is a misfortune which befalls both. No longer is one guilty and the other innocent. No longer are there long contested divorce suits. Nearly every case goes uncontested. The parties come to an agreement, if they can, on the things that matter so much to them. They divide up the furniture. They arrange the custody of the children, the financial provision for the wife, and the future of the matrimonial home. If they cannot agree, the matters are referred to a Judge in chambers.

"When the Judge comes to decide these questions, what place has conduct in it? Parliament still says that the Court has to ‘have regard to their conduct’ – see section 5(11) of the 1970 Act. Does this mean that the Judge in chambers is to hear their mutual incriminations and to go into their petty squabbles for days on end, as he used to do in the old days? Does it mean that, after a marriage has been dissolved, there is to be a post mortem to find out what killed it? We do not think so. In most cases both parties are to blame-or, as we would prefer to say-both parties have contributed to the breakdown.

"It has been suggested that there should be a ‘discount’ or ‘reduction’ in what the wife is to receive because of her supposed misconduct, guilt or blame (whatever word is used). We cannot accept this argument. In the vast majority of cases it is repugnant to the principles underlying the new legislation, and in particular the 1969 Act. There will be many cases in which a wife (though once considered guilty or blameworthy) will have cared for the home and looked after the family for very many years. Is she to be deprived of the benefit otherwise to be accorded to her by section 5(1)(f) because she may share responsibility for the breakdown with her husband? There will no doubt be a residue of cases where the conduct of one of the parties is in the Judge’s words "both obvious and gross", so much so that to order one party to support another whose conduct falls into this category is repugnant to anyone’s sense of justice. In such a case the Court remains free to decline to afford financial support or to reduce the support which it would otherwise have ordered. But, short of cases falling into this category, the Court should not reduce its order to financial provision merely because of what was formerly regarded as guilt or blame. To do so would be to impose a fine for supposed misbehaviour in the course of an unhappy married life. Mr. Ewbank disputed this and claimed that it was but justice that a wife should suffer for her supposed misbehaviour. We do not agree. Criminal justice often requires the imposition of financial and indeed custodial penalties. But in the financial adjustments consequent upon the dissolution of a marriage which has irretrievably broken down, the imposition of financial penalties ought seldom to find a place.

[80] In Miller v Miller [2006] UKHL 24, Lord Nicholls when considering the relevance of the parties conduct in an application for ancillary relief in divorce proceedings, stated in paras 59-61:

"59. Next is the question of the parties conduct. The relevance of the parties conduct in financial relief cases is still a vexed issue. For many years now divorce has been based on the neutral fact that the marriage has broken down irretrievably. Some elements of the old concept of fault have been retained but essentially only as evidence of irretrievable breakdown. As already noted, parties are now free to end their marriage and then re-marry.

"60. Despite this freedom, there remains a widespread feeling in this country that when making orders for financial ancillary relief the Judge should know who was to blame for the breakdown of the marriage. The Judge should take this into account. If a wife walks out on her wealthy husband after a short marriage it is not ‘fair’ this should be ignored. Similarly if a rich husband leaves his wife for a younger woman.

"61. At one level this view is readily understandable. But the difficulties confronting Judges if they seek to unravel mutual recriminations about happenings within the marriage, and the undesirability of their attempting to do so, have been rehearsed many times. In Wachtel v Wachtel [1973] EWCA Civ 10; [1973] Fam 72, 90, Lord Denning MR led the way by confining relevant misconduct to those cases where the conduct was ‘obvious and gross.’

[81] Then in para 65 Lord Nicholls said:

"In most cases fairness does not require consideration of the parties conduct. This is because in most cases misconduct is not relevant to the basis on which financial ancillary relief is ordered today. Where, exceptionally, the position is otherwise, so that it would be inequitable to disregard one party’s conduct, the statute permits that conduct to be taken into account.

[82] It may be that misconduct by one party which has affected the future earning capacity of the other party after the marriage is dissolved would be a type of conduct that would be inequitable to disregard.

(e) Contribution

[83] It is clear from both Miller v Miller [2006] UKHL 24 in the judgments of Lord Nicholls and Baroness Hale and White v White [2000] UKHL 54 in the judgment of Lord Nicholls that the non-financial contribution of the home-maker and child-carer to the family should be fairly and properly recognised. That was explicitly recognised by Lord Nicholls in Miller v Miller at para 1 where he stated in a passage already cited:

"1. In assessing the ‘parties’ contributions to the family there should be no bias in favour of the money-earner and against the home-maker and the child-carer. This is a principle of universal application. It is applicable to all marriages.

[84] Baroness Hale in Miller v Miller stated at para 150 of her judgment:

"150. More difficult are business or investment assets which have been generated solely or mainly by the efforts of one party. The other party has often made some contribution to the business, at least in its early days, and has continued with her agreed contribution to the welfare of the family. But in these non-business partnership, non-family asset cases, the bulk of the property has been generated by one party. Does this provide a reason for departing from the yardstick of equality? On the one hand is the view, already expressed, that commercial and domestic contributions are intrinsically incommensurable. It is easy to count the money or property which one has acquired. It is impossible to count the value which the other has added to their lives together. One is counted in money or money’s worth. The other is counted in domestic comfort and happiness. If the law is to avoid discrimination between the gender roles, it should regard all the assets generated in either way during the marriage as family assets to be divided equally between them unless some other good reason is shown to do otherwise."

[85] On the approach to be applied when evaluating the contributions made by each party to the welfare of the family, Lord Nicholls in Miller v Miller said in paras 66-68:

"66. A point of a similar nature concerns the approach to be adopted when evaluating the contributions each party made to the welfare of the family. Apparently, in this post-White era there is a growing tendency for parties and their advisers to enter into the minute detail of the parties married life, with a view to lauding their own contribution and denigrating that of the other party. In the words of Thorpe LJ, the excesses formerly seen in litigation concerning the claimant’s reasonable requirements have now been ‘transposed into disputed, and often futile, evaluations of the contributions of both of the parties’: Lambert v Lambert [2002] EWCA Civ 1685; [2003] Fam 103, 117, para 27.

"67. On this I echo the powerful observations of Coleridge J in G v G (Financial Provision: Equal Division) [2002] EWHC 1339 (Fam); [2002] 2 FLR 1143, 1154-1155, paras 33-34. Parties should not seek to promote a case of ‘special contribution’ unless the contribution is so marked that to disregard it would be inequitable. A good reason for departing from equality is not to be found in the minutiae of married life.

"68. This approach provides the principled answer in those cases where the earnings of one party, usually the husband, have been altogether exceptional. The question is whether earnings of this character can be regarded as a ‘special contribution’, and thus as a good reason for departing from equality of division. The answer is that exceptional earnings are to be regarded as a factor pointing away from equality of division when, but only when, it would be inequitable to proceed otherwise. The wholly exceptional nature of the earnings must be, to borrow a phrase more familiar in a different context, obvious and gross. Bodcy J encapsulated this neatly when sitting as a Judge in the Court of Appeal in Lambert v Lambert [2002] EWCA Civ 1685; [2003] Fam 103, 127, para 70. He described the characteristics or circumstances which would bring about a departure from equality:

"...those characteristics or circumstances clearly have to be of a wholly exceptional nature, such that it would very obviously be inconsistent with the objective of achieving fairness (i.e. it would create an unfair outcome) for them to be ignored."

(f) Alimony

[86] The power to make an order for alimony is provided in s.22(3) and (4) of the Divorce and Matrimonial Causes Ordinance 1961 which provides:

"(3). On any petition for divorce or nullity of marriage the Court shall have the same power to make interim orders for the payment of money by way of alimony or otherwise to the wife as the Court has in proceedings for judicial separation.

"(4). In all cases where the Court makes an order for alimony the Court may direct the alimony to be paid either to the wife or to a trustee approved by the Court on her behalf, and may impose such terms or restrictions as the Court thinks expedient, and may from time to time appoint a new trustee if for any reason it appears to the Court expedient to do so."

[87] What is alimony pendente lite was explained in Jeffery v Jeffery [1949] HCA 28 where Latham CJ said in para 6 of his judgment:

"Alimony pendente lite is a provision for the proper maintenance of the wife during the pendency of the suit. Marriage continues up to the pronouncement of a decree absolute (see Brown v Walters [1931] HCA 45; (1931) 46 CLR 290). Accordingly, an order can be made in respect of the period between service of petition and order absolute."

[88] Dixon J in para 6 of his judgment said:

"[The] purpose of alimony pendente lite was to provide for the wife’s maintenance during the progress of the suit..."

[89] It is also clear from the judgment of Latham CJ in Jeffery v Jeffery at para 10 that the jurisdiction of the Court to make an order for alimony pendente lite does not end when a decree is made absolute. The Court may still make an order after a decree absolute with retrospective effect for alimony pendente lite for the maintenance of the wife during the pendency of the divorce suit.

[90] Our divorce law contains no provision for a decree nisi or a decree absolute in a divorce suit. A petition for dissolution of marriage is simply filed and served on the other party. If at the hearing which follows the petition is granted, the marriage is dissolved and the suit is at an end. There is no decree nisi to be followed by a decree absolute. In terms of what was said by Latham CJ and Dixon J in Jeffery v Jeffery [1949] HCA 28, the time interval during which the divorce suit is pending and for which alimony pendente lite can be claimed for the maintenance of the wife is from the service of the petition to the dissolution of the marriage. In other words, alimony pendente lite may not be claimed for the period prior to the service of the petition or after the dissolution of the marriage. The reason is that no divorce suit is pending at those times.

[91] It follows that the wife’s motion for alimony on the grounds of her contributions to the family and the conduct of the husband is misconceived. Not only is the claim unrelated to the maintenance of the wife during the pendency of the divorce suit, but the grounds of the motion relate to events that occurred well before the divorce suit was pending.

(g) Custody

[92] I accept that the welfare of the child is the paramount consideration in custody cases. I also accept that the conduct of a party to a custody dispute is a relevant consideration to the issue of custody where such conduct would affect the welfare of the child. In Hadley v Hadley [1997] WSMC 2, Vaai J stated:

"The conduct of the parties is relevant to the issue of custody if it affects the welfare of the children"

Discussion

(a) Matrimonial property

[93] As earlier mentioned, the parties were married in Auckland on 2 November 1973 when the husband was 22 years and the wife was 19 years. They then lived and started up their family in Auckland. In 1980 their eldest child, a son, was born and in 1984 their second child, another son, was born. The parties used to give financial assistance to their respective parents and families when requested. They also helped financially in bringing over from Samoa to Auckland some of the husband’s siblings and paid for their education in New Zealand. Nothing else is known about how the parties lived their lives in Auckland but they must have lived their lives in the normal way many married couples do.

[94] Sometime after the birth of their second son in 1984, the parties migrated to Los Angeles in United States. The husband worked in the Los Angeles agency of the Commonwealth Bank of Australia whilst the wife worked at another bank. They both contributed to the upkeep of their family and the maintenance of their children from their respective earnings. They also kept some money from their earnings in a joint bank account. They still sent financial assistance to their respective parents when so requested. One day, prior 5 September 1988, the husband’s mother who was then in Auckland wrote requesting US$5,000.

[95] I find as a fact, for reasons already given, that the husband and the wife did send US$5,000 to the husband’s mother by instalments of about US$500, US$600 and the like. Most of that money came from the husband and the wife also made a little contribution. Most of the instalments were remitted by the wife but the husband also remitted a few of the instalments to his mother. I am also satisfied that the money the husband remitted to his mother was from the money he earned during the marriage. That must be the same with the little money the wife remitted to the husband’s mother. That money was remitted in full prior to 5 September 1988, the date of the final receipt from the husband’s mother for the total amount of US$5,000.

[96] I also find as a fact that the real reason that the land at Alafua was transferred to the husband by his mother was because of the US$5,000 remitted to her. Even though the transfer of the land is described as a ‘gift’ in the deed, I am satisfied that it was not a ‘gift’ in the strict sense of the word gift. It was actually property acquired by the husband during the marriage from his earnings during the marriage. It is, therefore, matrimonial property: Miller v Miller [2006] UKHL 24, per Lord Nicholls para 22; per Baroness Hale para 152; and see Lord Mance paras 167-169.

[97] In 1995 the parties and their two sons left Los Angeles and came to Samoa. They stayed at the house of the wife’s parents at Tualele. From there they operated their rental car business, Southpac Rentals, which became very successful. Both parties worked hard in their rental business.

[98] The rental business was set up by the husband when he visited Samoa in 1994. He did this with US$11,165 being his severance pay from his former employer in Los Angeles and a loan of $50,000 from the then Pacific Commercial Bank in Apia. The husband and the wife were each allotted a 40% shareholding in the rental business and their two sons were each allotted a 10% shareholding. When the parties separated in January 2001 they split their fleet in equal division also probably taking into account the shareholding of their two sons who remained with their mother. The rental car business is therefore not an issue in these proceedings.

[99] In 1997, the husband moved out of the house of the wife’s parents at Tulaele. He left behind his wife and their two sons. He built a house on the land at Alafua which his mother had transferred to him in August 1991and has been registered under his name. A few months later, when the house was almost complete, the parties resumed co-habitation. This was 27 December 1997 according to the husband or early 1998 according to the wife.

[100] The husband said that $124,401.38 was spent on the construction of the Alafua house. All the money came from him except for $20,270.60 which was paid from the rental car business and $25,000 from a personal loan. The husband therefore said that the Alafua house belongs to him alone. The wife claims that the Alafua house belongs to both of them. As it will appear shortly, I agree with the wife. As a matter of law, the Alafua house is matrimonial property and both the husband and the wife have an interest in it.

[101] The Alafua house was constructed during the marriage with money earned by the husband and their rental car business during the marriage. Even though the husband said that most of the money spent on the construction of the house belonged to him, it is clear that most of that money came from his personal funds, pension funds and the proceeds from the two rental cars that he sold. All of that money was earned by the husband during the marriage whilst the wife was also playing her role in the family. The personal loan of $25,000 that the husband made must also have been repaid with money earned during the marriage, most likely from the rental car business.

[102] The wife also said that she had contributed to the enhancement of the Alafua house as a home for their family. She said that when she and the husband resumed co-habitation, the Alafua house was only a shell. This is consistent with what the husband said that when they resumed co-habitation, the Alafua house was almost complete. In other words, at that time the house was incomplete.

[103] The wife then said that she set out to make the house a good home for their family to live in. She attended to the furnishings of the interior, she built verandas to the front and rear of the house, and she was also responsible for the landscaping of the land and the gardens. After they separated in January 2001, she also built a garage.

[104] On the principles articulated in Miller v Miller [2006] UKHL 24, per Lord Nicholls 22, per Baroness Hale para 152, and the explanation by Lord Mance paras 167-169, the Alafua house would clearly be matrimonial property. It is an asset built during the marriage with money earned during the marriage.

[105] Furthermore, even though the Alafua house was built in 1997 and the parties lived in it with their children for only three years, the house is clearly their matrimonial home. As such, it is an asset which falls within the pool of matrimonial properties to be the subject of distribution when the marriage was terminated.

[106] However, the Court has been spared the task of having to apportion the respective interests of the parties in the Alafua property, which includes the house and the land on which it is situated, because the husband and the wife both want the Alafua property to be transferred to their two sons. I have decided to make an order to carry out their wish.

[107] The only other problem that arose in relation to the Alafua property is that whilst the husband is agreeable to let the wife and their two sons stay in the house, he does not want the wife’s new partner to stay in the house. In my view, once the house is transferred to the sons, it will be for them as the new co-owners to decide what to do with the house. The house is then their property.

[108] The husband also wanted the Alafua property to be awarded to him and then he will transfer it to his sons. That is a problematic request because, as I have indicated, the wife would also have an interest in the Alafua property as it is matrimonial property and she would not want the house to be transferred to the husband first and then it is for him to transfer the house to their sons. The best thing to do is to order that the Alafua property be transferred direct to the two sons as tenants in common in equal shares. It will then be for them to decide on what to do. The alternative, if that path is not taken, will be for the Court to apportion the interests of the husband and the wife in the Alafua property. But that is not the wish of the parties.

[109] The other asset which the parties had was a house which they purchased in Auckland in 1998. They jointly owned that house. After they separated in 2001, the wife bought out the husband’s interest. That house is not an issue in these proceedings.

[110] Perhaps, I should also mention that since their divorce in 2004, the husband has purchased land and built a house for himself and his new wife. On the other hand, the house of the wife’s parents at Tulaele has been transferred to the wife who has to repay a mortgage on it. So both parties have a house of their own. It is a sign of their respective financial abilities.

[111] I have left out the allegations of misconduct made by each party against the other. It is not relevant to this particular case. After all, both parties wish to transfer the Alafua property to their sons. So it is not necessary to take into account the alleged misconduct in relation to the Alafua property even if it was relevant.

(b) Alimony

[112] As it would be clear from what has already been said about alimony pendente lite, the claim for alimony is misconceived.

(c) Custody of the daughter

[113] In respect of the parties adopted daughter who was born on 1 January 1998. I have already indicated that her custody should be awarded to the wife with reasonable access reserved to the husband. Both parties love their daughter but I agree with the husband that for her stable upbringing, one of the parties should be awarded the custody of their daughter. In the circumstances, I have decided to award the custody of the daughter to the wife with reasonable access reserved to the husband.

(d) General comment

[114] I have been conscious throughout this judgment that I have relied on principles articulated by the House of Lords in Miller v Miller [2006] UKHL 24 and White v White [2000] UKHL 54 where in England the law on matrimonial property is a mixture of statute and common law. However, I make no apology for this. Firstly, statutory law may be used to inform the development of the common law. Secondly, this is one important area of the law where the Samoan Courts have been in search for legal principles to guide its approach; and it has been no easy tack. If, therefore, the Court in this case has to rely on principles based on the interaction of statute and common law then so be it. Principles whether based on a mixture of statute and common law are much better than no principles at all. It is also needless to say that the source of the principles referred to and relied upon in this case are highly authoritative. And thirdly, matrimonial property disputes are now the subject of legislation in England, Australia and New Zealand that it is not possible to find any common law principle in those jurisdictions without a statutory context.

[115] However, there may be cases where the application of the principles referred to in this case has to take into account our own unique circumstances. Here; I have in mind, for example, matrimonial property disputes which involve customary land which, under the Constitution, cannot be alienated.

Conclusions

(a) Pursuant to the express wish of the husband and wife, the property at Alafua which includes the land and the house built on it, is to be conveyed within 28 days to the two sons of the marriage as tenants in common in equal shares.

(b) The wife is to continue in occupation of the property at Alafua until that property is conveyed to the two sons of the marriage as tenants in common in equal shares; it will then be for the two sons as co-owners to decide whether their mother should continue in occupation of the Alafua property; and, if so, on what conditions, if any.

(c) The wife’s motion for alimony is denied.

(d) The custody of the female child of the marriage is awarded to the wife with reasonable access reserved to the husband.

Counsel to file submissions as to costs in 10 days if they have not done so already.

CHIEF JUSTICE

Solicitors
Toa Law
K ruse Enari & Barlow