Denousse v Gonthier (MA 158/2016) [2016] SCSC 334 (19 May 2016);

IN THE SUPREME COURT OF SEYCHELLES

Civil Side: MA 158/2016

(arising in  146/2010)

[2016] SCSC 334

 

 

PAQUERETTE DENOUSSE

versus

JEFFREY GONTHIER

 

 

 

Heard:                         27 November 2015, 9 December 2015, 12 January 2016 and 17 February 2016

Counsel:                      Mr. Joel Camille Attorney at Law for Petitioner

                                   Mr. Guy Ferley Attorney at Law for Respondent

 

Delivered:                   19 May 2016

 

JUDGMENT

 

Burhan J

 

[1]               This is an application for property and financial adjustments under section 20 (1) of the Matrimonial Causes Act Cap 124.  The parties were married on the 5th day of April 1989 and on an application made by the wife (petitioner) Paquerette Denousse, an order absolute granting the divorce was issued by Court on the 7th day of April 2011.

 

[2]               The petitioner in this application seeks that:

                                i.            The Honourable Court be pleased to declare a half share in favour of the petitioner in the land comprised in Title V5971 situated at Le Niole, Mahe, Seychelles and the matrimonial home standing thereon;

                              ii.            The respondent be ordered to pay the value of a half share in the land Title V5971 with the matrimonial home thereon, to the petitioner;

                            iii.            The respondent be directed to pay the costs of this matter; and

                            iv.            The court makes any other orders that is deems fit and reasonable in the circumstances.

[3]               The petitioner in her evidence under oath, admitted that she was now divorced from the respondent and stated that during her marriage with the respondent, she had contributed towards the purchase of property bearing Title V 5971 which had been purchased jointly in the names of the respondent and herself. She produced document P1 a document from the land registry to establish the fact that she owned a half share of the said property.  She further stated, that she had contributed towards the payment of the monthly instalments of the loan provided for by the government authority on a regular basis, when she worked at the Labour office and at a day care centre at St. Elizabeth Convent.

[4]               The petitioner further mentioned in her evidence under oath, that she would give money to the respondent from her earnings and he would make payments in respect of the property and obtain the receipt in his name. She stated that after the property was purchased on a loan, a further loan was obtained to build the house. She had contributed half of what she earned to settle this loan as well.

[5]               The petitioner stated that she had left the house leaving most of her clothes and everything they had bought together and taken with her only a few clothes and her sister had to come and pick her up and she stated she had to sell her three goats to survive. She further stated the respondent remained in the house with another woman with whom he was having an affair with.

[6]               The petitioner further stated she was now 60 years old and did not want to go back and live with the respondent as there was another woman with him with two children and she was only demanding her value of her half share. She further stated that during the 20 years she lived with the respondent, she had in addition to contributing towards the instalment payments, cooked and cleaned the house and done the household chores in the running of the matrimonial home. She stated that the respondent was more interested in flirting around and gave little money to run the household. She also provided documentation P2 to P4 in proof of her employment.

[7]               In cross examination the petitioner denied she had affairs with other persons during the said marriage. She stated when her husband worked at Deroshe islands she had accompanied him. She admitted she loved her husband and he loved her but stated he would beat her up. She further stated that she had left behind the television and music system they had bought together when she left the matrimonial home. She denied the suggestions that she had not contributed anything towards the purchase of the land or the construction of the house.

[8]               The respondent in his evidence admitted being married to the petitioner and admitted that during the time of the marriage purchased a property in both their names. He stated that initial payment for the land was SR 39, 400/= which was paid by him and a sum of SR 165,000/= was advanced as a loan by the government for the building of the house. He stated it was he who had paid all the instalments which were taken from his salary. He produced several payslips to indicate same. He further stated the petitioner had burned the ceiling and the curtain near the stove and he had to take a loan to repair it. He also stated that she had stolen money and left the house. He alleged she was having extra marital affairs. He denied she made any contributions to the house. He admitted after many questions being put to him in cross examination that they shared the cleaning and house hold work. He denied that the petitioner contributed any money towards the running of the house or to the payment of any instalments in regard to the house and property.

[9]               It is apparent when one peruses the record that parties were married on the 5th day of April 1989 and divorce absolute granted on the 7th of April 2011. According to document P1 produced by the petitioner, the parcel of land bearing title registration V5971 was purchased during the subsistence of the marriage with half share belonging to the petitioner herself. Therefore document P1 itself, entitles the petitioner to half share of the property.

[10]           In regard to the contributions made by either party learned counsel for the respondent went to great lengths to show that no contributions had been made by the petitioner. It is apparent from the perusal of the documents tendered by the respondent himself that the monthly instalment for the house were deducted from his salary but this does not indicate that the petitioner did not contribute any money towards it, as her evidence is that she did not pay the housing authority directly but gave the respondent money from her earnings as her contribution towards the instalments.

[11]           Further the respondent has produced receipts since the year 2006 but the petitioner in her evidence states the she had taken the loan earlier while document D1 produced by the respondent himself indicates the land was purchased in 1998 and both the petitioner and the respondent had paid a sum of SR 39,400.00 for purchase of same and a loan had been taken as far back as 1998 in a sum of SR 165,713.00 jointly by both parties from the Seychelles Housing Development Authority for construction of a building thereon. It appears that the receipts shown by the respondent do not correspond to this period of time but very much later in 2006. Thus the petitioner’s version that she too contributed the payments of the monthly instalments is plausible though, denied by the respondent.

[12]           Further case law indicates, in deciding issues in respect of the division of matrimonial property, one must not only consider the monetary contributions made by each party but other circumstances such as the age of parties, the prospect of future earnings of either party and the length and duration of the marriage between the parties are matters also be taken into account. In this instant case the petitioner is now 60 years of age with little prospects of remarrying and the resulting divorce and difficulties faced by her having to adjust herself to a new way of life, without the security of a husband are factors court have to consider as held in the case of Paul Florentine v Laurence Florentine SCA 4/1990. The respondent on the other hand as borne out by the evidence has the comfort of being in occupation of the matrimonial home and has found himself a new partner already.

[13]           In the case of  Samori v Charles (2012) SLR 371  the Seychelles Court of Appeal  held as follows:

We have no reason to interfere with any of the above findings of fact made by the learned Trial Judge as regards the financial contributions made by the two parties to the marriage.  But a marriage is not only about financial contributions, it is also about love, of friendship, of security, of commitment, of moral and emotional support; which combine together to make a success of the lives of the two people to the marriage.  These are matters that cannot easily be measured in monetary terms and also cannot be ignored when a court is called upon to make a determination on matrimonial property.” 

[14]           In this case too, the parties had been married for over 20 years prior to being divorced. The length of the marriage does indicate that there would have been a certain amount of love, friendship, commitment, moral and emotional support during the subsistence of the marriage, despite parties attempting to throw allegations at each other at the time of giving evidence in this case. In fact the respondent grudgingly admits at one stage of his evidence that they shared the household chores.

[15]           I also draw reference to the case of Marie Andree Renaud v Gaetan SCA 48 of 1998 which states that the duty of court, at the stage of apportioning matrimonial property upon the dissolution of marriage, is to ensure a party to a marriage is not put at an unfair advantage in relation to the other and the party applying for relief, should be placed in a position where the party is able to maintain a fair and reasonable standard of living, commensurate or near the standard the parties maintained before the  dissolution. It is clear from the evidence before court, that the respondent is at present in a position of unfair advantage as he lives in the matrimonial home with a new partner while the petitioner has lost the security and comfort of her home and is presently living in conditions less secure to what she had at the time of marriage.

[16]           Having also considered the fact that the petitioner  in terms of document P1 has title to a half share to the property and the aforementioned factors contained herein, this court is satisfied that the petitioner has established on a balance of probabilities that she is entitled to the reliefs claimed in the prayer of the petition. This court therefore holds in favour of the petitioner and proceeds to:

a.                   Declare a half share in favour of the petitioner in the land comprised in Title V5971 situated at Le Niole, Mahe, Seychelles and the matrimonial home standing thereon;

b.                  Order the respondent to pay the petitioner, the current market value of a half share in the Land Title V5971 and the matrimonial home thereon;

c.                   Each party to bear their own costs.

 

 

 

Signed, dated and delivered at Ile du Port on 19 May 2016

 

 

M Burhan
Judge of the Supreme Court