Freminot v Pauline (MA169/2019 (Arising in DS159/2016)) [2020] SCSC 190 (11 March 2020);

Headnote and Holding: 

Application for ancillary relief and leave to file application out of time. Application dismissed with costs.

Legislation considered: 

CAROLUS J

Background

[1]       The Parties in this matter are divorced and the conditional order of divorce granted in the divorce proceedings was made absolute on 9th June 2017.

[2]       The applicant has now filed an application for “division in kind of matrimonial property” which was filed on 21st May 2019. Counsel for the respondent at the time Mr. Georges Robert, whilst reserving his right to file a reply on the merits of the application, raised a number of pleas in limine litis alleging procedural defects in the application arising from non-compliance with the Matrimonial Causes Act and the Rules made there under. On that basis he moved for dismissal of the application or in the alternative for an order that the applicant correct the said defects. One of the points raised by counsel for the respondent was that “the Applicant has failed to request leave of the Court as per Rule 34(1) of the Rules as the application is outside the prescribed time”.

[3]       In the meantime the matter was referred to mediation and it was understood that Counsel for the applicant would also take the time to rectify the defects in the application. Mediation failed and the matter referred back to this Court but no such steps had been taken in that time by counsel. He was granted further time to do so and filed another application on 19th February 2020 which is substantially the same as the previous application and more importantly fails to address the issues raised by the respondent.

[4]       Counsel for the respondent reserving her right to file a reply on the merits of the second application raised 4 pleas in limine litis which was filed on 4th March 2020 and on the basis of which she moved the Court to dismiss the application. The pleas raised are as follows:

1.   The Applicant's Petition fails to comply with Rule 4 (1) of the MCA Cap 24 Subsidiary Legislation Section 27, of the Matrimonial Causes Rules in that it fails to set out under which provision of the MCA the Application/Petition is being made.

2.   The Applicant has failed to request leave of the court as per Rule 34 (1) of the Rules before filing the present Application/Petition as it is outside the prescribed time limit for bringing such applications.

3.   The first application made by the Applicant/Petitioner dated 6th March 2019 having been dismissed and the Applicant/Petitioner having been given time by the Court to correct the defects contained therein and to file a fresh application and the Applicant having failed to do so, even in this second Application, any further Application by the Applicant would be an abuse of process.

[5]       I note that the first application was never dismissed but as stated above, counsel for the respondent was given time to rectify the defects therein, in the first instance during the time that mediation was ongoing, and secondly when the matter was referred back to this Court after failure of mediation proceedings. Despite being given time, Counsel failed to rectify the said defects. I note in particular that no application for leave as provided for Rule 34(1) of the Matrimonial Causes Rules has been filed.

[6]       Section 21(1)(g) of the Matrimonial causes Act empowers the Court, on the granting of a conditional order of divorce or at anytime thereafter, to “make such order, as the court thinks fit ,in respect of any property of a party to a marriage or any interest or right of a party in any property for the benefit of the other party or a relevant child”.

[7]       Rule 34(1) of the Matrimonial Causes Rules provides for the time within which such an application for such an order must be made. It reads as follows:

34. (1) An application … in relation to property in accordance with rule 4(1) (f), (h), (i) or (j) where a prayer for the same has not been included in the petition for divorce or nullity of marriage, may be made by the petitioner at any time after the expiration of the time for appearance to the petition, but no application shall be made later than two months after order absolute except by leave.”

[8]       In the present case the conditional order of divorce was made absolute 9th June 2017. The application was filed on 21st May 2019, a little short of two years later. The applicant should therefore have sought leave of the Court to file the application. He did not do so even if ample opportunity was given to him and has still not done so. At this point in time, this Court has only an application before it for which no leave has been sought and which the respondent seeks to have dismissed

[9]       In the circumstances, this Court has no option but to accede to the respondents prayer and dismiss the application with costs. However, this Court reserves the right to consider any further application for ancillary relief under the Matrimonial Causes Act and Rules made there under. Counsel is however cautioned to ensure that any such application complies with the provisions of the said Act and Rules.

Signed, dated and delivered at Ile du Port on 11th March 2019

 

 

 

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E. Carolus J