Hadley v Hadley [2010] WSSC 61 (19 March 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

Misc.323/09

BETWEEN:

GEORGE HADLEY
of Matautu-tai, Businessman.
Applicant

AND:

PETELONILA ALESI HADLEY
(nee Siaosi) of Letava, Unemployed.
Respondent

Counsels: Mr A.Roma for the applicant
Mr TAI.Ponifasio for the respondent

Hearing: 10 December 2009 and 12 March 2010
Decision: 19 March 2010

DECISION OF NELSON J.

[1] The applicant is a businessman of Matautu in Apia. The respondent is his wife. The parties were married in Auckland New Zealand on 22 September 1999 and there are two children of the marriage living with the respondent in the matrimonial home at Letava near Apia. The matrimonial home is situated on what was originally an approximately 8 acre property, parts of which were subsequently sub-divided and sold off by the applicant. The applicant has sub-divided further sections of the property and wishes to sell these to settle some outstanding debts.

[2] The parties have been estranged since May 2008 and it is apparent from what I have read that their differences are irreconcilable. The wife now refuses to vacate the matrimonial home or allow sales of the remaining parts of the property to proceed claiming that she has an equitable interest in the entirety of the property. The husband has accordingly brought the present application for an order evicting the respondent from the property claiming that her occupation thereof is unlawful and unjustified.

The applicants case:

[3] The applicant says that prior to their marriage the parties entered into a pre-nuptial agreement dated 7 September 1999 ("the Agreement") wherein it was agreed that in the event of a separation, the parties would retain their respective pre-marriage properties. The Agreement listed their separate properties. The Agreement was on the applicants instructions prepared by his solicitor as the applicant had encountered a myriad of problems with his first marriage. At his lawyers suggestion the respondent was advised to seek independent counsel before she executed the pre-nuptial agreement. He says she chose the late Tupai Se Apa and as she could not drive, he drove her to Mr Apas office in Apia. He waited outside the office while she talked to Mr Apa and executed the document. The applicant said he discussed the Agreement with the respondent previously and she appeared to understand what it was all about. He also testified she had no questions about the document and further that he did not in any way coerce or force her to sign the document or rush her into executing it. The courtship with the respondent was a slow process he said, and took some two years. As the property is listed as his own personal property, he argues he is therefore pursuant to the pre-nuptial agreement entitled to do with it as he pleases.

[4] The property was purchased in 1995 using the applicants savings plus a loan facility from what was then the Bank of Western Samoa. The property was accordingly made subject to a first mortgage in favour of the Bank. Post purchase the applicant subdivided off three acres and sole them to his real estate company, Samoa Realty Limited and the company split this up into ¼ acre lots and sold them to various buyers. The remaining area of some 5 odd acres was kept in the plaintiffs name. He testified that loan payments were made either from his personal bank account or from the companys bank account as he was the majority shareholder and sole director of the company and also because the company owed him a substantial amount of money.

[5] He acknowledged that post-marriage the respondent played a role in his company but her shareholding was minor being 50 shares out of 50,000, and she was given these shares as a private company required by law at least two shareholders. The respondent was noted as company secretary but nominally only. She was employed by the company for a short period post-marriage (some 6 months in 2001) following which it was agreed that neither of the parties would receive a salary but she would receive a proportion of his weekly drawings from company funds. The applicant denied the respondent played a great role in the company or in the running of its main asset, a backpacker form of accommodation at Vaiala known as "The Princess Tui". His company was renamed Princess Tui Limited around the end of 2001.

The Respondents case:

[6] The respondent gave a different account of the pre-nuptial agreement and the post-marriage situation of the parties. Her evidence was the applicant never discussed the Agreement with her and the first she saw of the document was at Mr Apas office. She said the applicant came and fetched her from the hotel saying he needed a document signed before a lawyer. He showed her the document but did not explain it to her. He chose Mr Apa and he took her to Apas office and introduced her to Mr Apa. He explained to Mr Apa what he required and she said he stayed in the office while everything was done. The lawyer shook the applicants hand and the lawyer shook her hand, they sat down in front of the lawyer with the applicant beside her. She said the applicant got the document out of his briefcase and gave it to Mr Apa. The document was then signed and they left Apas office. She trusted the applicant and she thought this document pertained to the upcoming marriage. She also testified that the meeting in Apas office did not last very long and that no copy of the document was given to her as it was locked inside the applicants brief case following execution and subsequently inside the applicants safe. She said the applicant had promised he would explain it all to her but this was never done. She also said that if the document had been explained to her she never would have signed it and she argues that accordingly, the court should set the Agreement aside as being null and void at law.

[7] As for the business operation, she said that pre-marriage she worked for a local pharmacy in Apia. The applicant courted her over a two year period and had shown her his house saying it was to be her house, also his business which she was going to share in as evidenced by the fact that she was in fact given 50 shares in the company and was listed in the 2001 Annual returns as company secretary. She said Princess Tui came into being in 2001 and she was on the payroll as an employee of the business from June to December of that year. Previously she had worked for the applicants company Samoa Realty and had helped out in the clearing and surveying of various company subdivisions. She also testified that she in effect managed the Princess Tui hotel operation while the applicant took care of the Samoa Realty real estate part of the business. She was also extensively involved in the bookwork of the hotel even though she had had no experience in that regard. All this she did for free and when the applicant travelled overseas, she was left solely in charge of the businesses. She denied being responsible for the companys losses and disputes the applicants suggestion that despite his best efforts, she was in fact a liability to the Princess Tui operation. There is no dispute the couple had two children and it appears the family resided in the family home at Letava until the relationship soured.

[8] As for the property in question she accepts that when they married the applicant already owned the property but she says she helped in clearing the land and in repairs of the matrimonial home together with her brothers who worked for free fixing the stairs and the bathroom of the house. She also said the phone and electricity bills for the property were paid for by Princess Tui and her affidavit refers to payments made by Princess Tui towards the loan for the property with the bank. It is on the basis of all of these that she argues she has an equitable interest in the matrimonial home and the remaining lands registered to the applicant.

The applicable law:

[9] At the heart of these proceedings is whether and if so, to what extent the respondent is entitled to a share in the matrimonial property of the marriage. As there is no legislation in Samoa covering this very important but increasingly topical issue, the answer is to be found in the case law, in this regard the landmark judgment of Sapolu, CJ in Arp v Arp [2008] WSSC 35 which lays down in my view quite succintly what should be the prevailing principles of law in this country. There the Chief Justice said at paragraph 67:

"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 division of matrimonial properties."

And the primary objective of the English approach is to achieve fairness namely "what is a fair outcome taking into account all the circumstances of the case" (Sapolu in Arp). An approach geared "to produce a result which is fair, just and does not discriminate against either party on the grounds of gender or for any other reason" (NG v KR [2009] 1FCR 35 a decision of the English High Court of Justice, Family Division).

[10] The English authorities also established two other factors that are critical to the present proceedings: firstly that there exists an unofficial yardstick, not strong enough to be categorized as a legal presumption but it is what the cases term a "yardstick of equality" of division of matrimonial property. As explained by Lord Nicholls of Birkenhead in the leading case of White v White [2000] UKHL 54; [2001] AC 596 in a passage cited in Arp:

"In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their 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 wife, or forced upon them by 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, each 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-carer.

A practical consideration follows from this. Sometimes, having carried out the statutory exercise, the judges 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 judges 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".

In the subsequent case of Miller v Miller [2006] AC 618 the learned law lords developed the concept further by saying:

"This element of fairness reflects the fact that to greater or lesser extent every relationship of marriage gives rise to a relationship of interdependence. The parties share the roles of money-earner, home-maker and childcarer. Mutual dependence begets mutual obligations of support. When the marriage ends fairness requires that the assets of the parties should be divided primarily so as to make provision for the parties' housing and financial needs, taking into account a wide range of matters such as the parties' ages, their future earning capacity, the family's standard of living, and any disability of either party. Most of these needs will have been generated by the marriage, but not all of them. Needs arising from age or disability are instances of the latter".

[11] The court then went on to draw an important distinction between property acquired during the marriage which can properly be regarded as 'matrimonial property' and property acquired prior to the marriage but brought into the relationship by either or both of the parties, the latter being, property that was brought into the marriage-pot as it were. Such property can be regarded as 'non-matrimonial property' per se. Again, Lord Nicholls at paragraphs 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 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 [2010] UKSC 31; [2011] 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."

This was an approach endorsed by Baroness Hale in her judgment:

"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 [2001] 1 A 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). 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."

[12] In citing these passages with approval Chief Justice Sapolu in Arp noted that:

"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 paragraphs 167-169 of his judgment, Lord Mance stated:

167. 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] EWCAn 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 acknowledged that the difference between the two approaches will in the great majority of cases be irrelevant."
     

[13] Arp v Arp was a case involving what was clearly matrimonial property but that does not make these general principles that I have referred to any less applicable. On the question of contributions and the respective values thereof, an issue which both parties in the present proceedings have also addressed, see Arp v Arp paragraphs 83-85. I only propose to quote two passages therefrom which would seem to have application to the evidence adduced in the present case:

Baroness Hale in Miller v Miller:

"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."

And Lord Nicholls in the same case:

"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.

On this I echo the powerful observations of Coleridge J in G v G [2002] EWHC 1339 (Fam); 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."

[14] The second factor relevant to the present proceedings established by the English authorities is that a pre-nuptial agreement as a matter of general principle is not a creature recognized by the English common law unlike jurisdictions like the United States of America and some countries of continental Europe. The English courts have traditionally viewed such agreements as contrary to public policy and have declined to enforce them. The current position seems to be that this does not mean they are therefore completely valueless for they will be taken into consideration, but only as one of the circumstances of the case when the court comes to consider the issue of what is a fair result for the parties. See NG v KR [2009] 1 FCR 35 at paragraph 109:

"I accept the submission by Mr Mostyn QC that pre-nuptial agreements are not enforceable, per se, in English Law. In X v Y [2002] 1 FLR 508 Munby J set out in convenient form the current position. In particular paragraphs 78-81:

[78]. In this area of the law there were three distinct but related cases in which the common law treated a contract or any other form of inter vivos or testamentary disposition as being unenforceable on grounds of public policy: (i) agreements between spouses or intending spouses for future separation; (ii) certain collusive and other agreements in contemplation of divorce; and (iii) agreements purporting to oust the jurisdiction of the court. In each case equity, following the common law, similarly treated the contract or disposition as void and accordingly refused to decree specific performance of the 'obligation'.

[79]. It remains the rule that any agreement or arrangement entered into by a husband and wife, whether before or during the marriage, which contemplates or provides for the separation of husband and wife at a future time is against public policy and void: see N v N [1999] 2 FLR 745, 751 where it was said: "an agreement made prior to marriage which contemplates the steps the parties will take in the event of divorce or separation is perceived as being contrary to public policy as it undermines the concept of marriage as a life-long union."

[15] Some may perceive this to be an antiquated notion but it nevertheless remains a fundamental principle of the common law. However as stated although held to be unenforceable, such an agreement will have evidential value when its terms are relevant to an issue before the court. As observed in S v S [1997] 1 WLR 1200, 1203, there will be cases –

"where the circumstances surrounding the prenuptial agreement and the provision therein contained might, when viewed in the context of the other circumstances of the case, prove influential or even crucial. Where other jurisdictions, both in the United States and in the European Community, have been persuaded that there are cases where justice can only be served by confining parties to their rights under prenuptial agreements, we should be cautious about too categorically asserting the contrary. I can find nothing to compel a conclusion, so much at odds with personal freedoms to make arrangements for ourselves, that escape from solemn bargains, carefully struck by informed adults, is readily available here. It all depends." (my emphasis).

[16] In K v K [2003] 1 FLR 120 at page 131, the court approached its task by setting out a serious of questions to be considered in determining whether or not to uphold the terms of a prenuptial:

"I distill from the authorities the following questions, which I ask myself in determining the issue whether as against the wife the agreement is binding or influential in any of the decisions I have to make.

1. Did she understand the agreement?

2. Was she properly advised as to its terms?

3. Did the husband put her under any pressure to sign?

4. Was there full disclosure?

5. Was the wife under any other pressure?

6. Did she willingly sign the agreement?

7. Did the husband exploit a dominant position, either financially or otherwise?

8. Was the agreement entered into in the knowledge that there would be a child?

9. Has any unforeseen circumstance arisen since the agreement was made that would make it unjust to hold the parties to it?

10. What does the agreement mean?

11. Does the agreement preclude an order for periodical payments for the wife?

12. Are there any grounds for concluding that an injustice would be done by holding the parties to the terms of the agreement?

13. Is the agreement one of the circumstances of the case to be considered?"

In M v M [2002] 1 FLR 654 it was said at paragraph 44:

"The prenuptial agreement in my view is relevant to tending to guide the court to a more modest award than might have been made without it. I reject outright the suggestion that it should dictate the wife's entitlement; but I bear it in mind nevertheless".

[17] In the recent case of Crossley v Crossley [2008] 1 FCR 323, a case involving a short marriage between 2 wealthy individuals who entered into a prenuptial agreement after both taking independent legal advice, the wife asserted that her husbands disclosure had been inadequate and therefore the prenuptial agreement should be avoided. The Court of Appeal in that case emphasized that this was a –

"childless marriage of very short duration, for a substantial portion of which the parties were living apart. The marriage was between mature adults, both of whom had been previously married and divorced; both parties have and had prior to the marriage very substantial independent wealth. The prenuptial agreement provides for the retention by each of the parties of their separate properties and division of joint property............ the combination of these factors gives rise to a very strong case that a possible result of the section 25 exercise will be that the wife receives no further financial award"

The husband successfully argued for upholding of the agreement because as the Court of Appeal said:

"All these cases are fact dependent and this is a quite exceptional case on its facts, but if ever there is to be a paradigm case in which the court will look to the prenuptial agreement as not simply one of the peripheral factors in the case but as a factor of magnetic importance, it seems to me that this is just such a case."

[18] As concluded by Baron, J in NG v KR at paragraphs 118 and 119, these authorities show that:

"Over the years, Judges have become increasingly minded to look at the precise terms of agreements and will seek to implement their terms provided the circumstances reveal that the agreement is fair. Despite this, having considered the authorities, I am clear that the old common law rule remains to the effect that a party who has made a pre-nuptial agreement cannot sue on it as if it were a valid contract so as to enforce its terms; for example in the Queens Bench Division by seeking an injunction to enforce it or by seeking specific performance of its provisions.

Upon divorce, when a party is seeking quantification of a claim for financial relief, it is the Court that determines the result. The Court grants the award and formulates the order with the parties agreement being but one factor in the process and perhaps, in the right case, it being the most compelling factor...... The enforceability of the parties agreement results from the Court order and not from the agreement itself".

[19] And the rationale for the rule? Again I refer to NG v KR paragraph 129:

"It is understandable that English society in general (therefore the state) regards Court supervision as a necessary safeguard. To my mind, independent scrutiny of these agreements remains as necessary in modern times as it was in last century because of the vulnerability of parties involved at times of high emotion where inequality of bargaining power may exist between them. Although civilization has made much progress over the centuries and the roles of men and women have altered so that, in some cultures, equality has been achieved that does not mean that fundamental human nature has changed. Whilst the Court must permit of current mores and will take full account of contemporary morality it should not be blind to human frailty and susceptibility when love and separation are involved. The need for careful safeguards to protect the weaker party and ensure fairness remains."

Discussion:

[20] Applying these various principles to the facts of the present case: firstly I will deal with the prenuptial. This is a case of a mature, successful businessman undergoing his second marriage. The first having ended in acrimony and the second being to a young and if the respondent is to be believed, starry-eyed young girl who worked in a local pharmacy, who did not know how to drive and who had never been on a plane in her life. The wooing process took two years and the parties decided to marry in September 1999. Some two weeks before the wedding, the parties entered into the prenuptial agreement. The marriage took place in Auckland, New Zealand on 22 September 1999 presumably by way of a civil ceremony as the marriage was only solemnized subsequently by a church wedding in Apia on 5 August 200, almost one year later. The first child of their union was born on 7 May 2000 and I surmise from that, the respondent was pregnant when she got married on 22 September 1999. It is likely the Auckland civil ceremony was done because of this very fact.

[21] It is in this background that the respondent was asked to enter into the prenuptial agreement dated 7 September 1999, a document prepared at the applicants instigation and on his instructions by his lawyer. The document was produced as an exhibit in this case and even on a cursory perusal, it is apparent it is a detailed legal document that contemplates separation and a dissolution of marriage. Its terms are more divisive than anything and its fundamental premise is to keep the couples respective properties separate, one may think a strange way to begin a shared relationship. The document also purports to oust the jurisdiction of the court (e.g. regarding custody and maintenance) a matter which is anathema to the common law tradition on many fronts. The Agreement is unenforceable as contrary to public policy.

[22] But as the authorities I have referred to show the real question is whether notwithstanding that, it should be taken into consideration as one of the circumstances of the case, that is whether it would be fair to uphold its terms and/or its purported intent and spirit? If I were to apply the K v K question by question analysis, the answers would be:

1. Did the respondent understand the agreement?
   

Probably not, for even if it were fully explained to her by Mr Apa and having known the late Tupai Se Apa for many years, I have no doubt he would have explained to her the meaning and intent of the document she was about to sign. I do not believe the respondent then had the capability of absorbing in one short meeting in front of a lawyer she did not know (there being no evidence she was a client of or had any association with Mr Apa) the intricacies and implications of such an agreement. Little weight must also be given to the applicants insistence that he explained the document to her because the agreement is obviously more beneficial to him than to her.

2. Was the respondent properly advised as to the documents terms?
   

She probably was by Mr Apa but doubt remains as to her capability to understand and fully comprehend its terms and legal significance.

3. Did the husband put her under any pressure to sign?
   

I have no doubt there was pressure on her to sign in view of her pregnancy and the upcoming wedding. I apprehend that the respondent would have felt she had little choice but to sign the document.

4. Was there full disclosure?

Yes, both parties assets are fully listed in the document.

5. Was the respondent under any other pressure?
   

This has been dealt with in my observations above.

6. Did she willingly sign?
   

That she willingly signed is clear but the question remains whether this was an informed consent and as stated I do not believe that it was.

7. Did the applicant exploit a dominant position?
   

That the applicant was in a dominant position financially and otherwise is clear but whether he chose to exploit it for his own purposes is not.

8. Was the agreement entered into in the knowledge there would be a child?
   

As noted above, the answer to this must be "yes".

9. Was there any unforeseen circumstance arising post-agreement that would make it unjust to hold the parties to the agreement?
   

The obvious unforeseen circumstance is the birth of two children (one now almost 10 years of age and the other almost 7 years) and the breakdown of the marriage relationship while the children remain of tender years and under the age of majority. Children who are according to the evidence I have heard resident with their mother in the matrimonial home which is at the centre of these proceedings.

10. The meaning of the agreement?
    

The agreement provides for the separation of the pre-marriage properties of the parties and as to joint custody and particular terms thereof in respect of the children. Conspicuous however by its absence is a provision as to maintenance and the other life expenses of the children including educational expenses.

11. Does the agreement preclude periodical payments?
    

The agreement purports to do this in clauses 9 and 10.

12. Are there grounds for concluding an injustice would be done by holding the parties to the terms of the agreement?
    

Most definitely there would be an injustice done if the children were to be evicted from the matrimonial home with no provision made as to where they would then reside, with whom they would reside and with no provision for their education and upkeep.

13. Is the agreement a relevant circumstance?
    

Yes but in the circumstances, it is not necessarily conclusive.

I note in passing there are other questions posed in the K v K judgment but for present purposes, they are irrelevant.

[23] From this perspective, the balance would lie against a finding that the agreement should be held to bind the respondent. As stated earlier, the primary objective of the court in resolving matrimonial property disputes is to do what in all the circumstances of the case is fair. In my view it would be unfair to hold the prenuptial agreement against the respondent. She was young, impressionable and pregnant at the time of its execution, two weeks before an intended marriage to the applicant. If I recall her evidence correctly, her plane trip to Auckland was the first time she had been on an aircraft or had left the country. She comes from an unremarkable background and only attained Yr. 12 level at school. Going by the relevant dates, she would have completed school in 1996, met the respondent one year later and married two years after that in 1999. Even accepting what the applicant says, in my view she was incapable of fully grasping the significance and content of what she was being asked to sign. Fairness requires in these circumstances that the agreement not operate to her detriment after two children and nine years of marriage.

[24] If one then discounts the pre-nuptial agreement, that only leaves for consideration the issue of the respondents contributions to the marriage and what entitlement this should nett her in respect of the matrimonial home. The evidence shows that post-marriage the parties occupied the matrimonial home and the two children were born while they were so resident. The two children being Lagi Tuaiva Hadley born on the 7 May 2000 and Nafanua Elizabeth Hadley born on 31 March 2003. The marriage deteriorated for reasons that are not relevant to the present exercise and in May 2008, the parties separated and the wife and children were evicted from the family home by the applicant. They consequently moved in with the respondents parents and it appears from the respondents affidavit Exhibit "R-1" that life was difficult for both her and the children while resident in her familys home. The applicant at the time appears to have temporarily vacated the family home to resolve problems with the Princes Tui operation and accordingly the respondent and the two children took advantage of that opportunity and moved back into the matrimonial home and have been in occupation thereof ever since. It also seems from the respondents affidavits that she alone is supporting and taking care of the children.

Conclusions:

[25] The evidence establishes that the respondent at one time worked for the applicants business and the applicant accepted she played a role albeit he says she was more of a hindrance than a help in the running of the companys operations. It also establishes she is a minor shareholder in the company as well as being nominally company secretary. Further it is clear from the evidence that the company was responsible for payment of the loan for the matrimonial home payments having been made sometimes out of company funds and sometimes from the applicants personal accounts. There is no evidence that the respondent at any time made a direct payment towards the matrimonial home loan. But she would have been the home-maker and played the usual role of a Samoan wife in the home, rearing the children, etc. To that extent the evidence establishes that the respondent has indirectly contributed to paying off the home loan and has to my satisfaction established she has an interest in the matrimonial home.

[26] However the exact quantification of that interest is difficult based on the evidence adduced before me because the evidence lacks the degree of detail and specificity that would allow the court to make a reasonable assessment of the value of the respondents contributions to the marriage. And one must always bear in mind what the authorities have talked about that there will be no discrimination in the gender roles of the respective parties. The evidence also suffers from the defects pointed to in the extracts quoted earlier in this judgment in relation to the issue of contributions. But one thing is clear: it shows that the wife has a sufficient basis for claiming that she has a legal interest in the matrimonial property having been not only an employee of the company servicing the home loan but also having been married to the applicant for a period of 9 years and having raised two children with him. That coupled with the fact that the matrimonial home is the only home the children have and appears to be the only home they have known means the application for an eviction order should be refused.

[27] As a final matter I express this to the parties: they may wish to litigate this further because I recognize that this decision does not resolve their problems. More litigation is their right but I would seriously suggest that given what is contained in this judgment, they consider the shorter more expedient and in the long term less costly route of meditation through a professional mediator, many of whom are available in the private sector. Whatever route they choose to adopt the issues they must now address are to define the respective shares of the parties in the matrimonial home and take urgent steps to make provision for the custody, maintenance and upkeep of the children of the marriage. Ancillary to that would be a consideration of what to do in relation to the sub-divided lots surrounding the matrimonial home property, a matter in respect of which I would say based on the evidence I have heard, the respondent has much less of an entitlement to than the matrimonial home property itself.

[28] Costs on the present application are reserved and if the parties cannot reach agreement as to same, it can be referred back to me for consideration.

JUSTICE NELSON