ANDRE J

Introduction

[1]       Marie Camille (nee Joubert) (“Petitioner”) filed for divorce petition on the 24 May 2010 against Pierre Claver Camille (“Respondent”). The Court granted a conditional order of divorce, which was made unconditional on the 7 October 2010. The Petitioner subsequently made an application on the 3 February 2011 for matrimonial property adjustment orders under the Matrimonial Causes Act (“the Act”) and subject matter of this Judgment.

Pleadings

[2]       The Petitioner seeks property adjustment orders in respect of the following properties: immovable property Title C6759, motor vehicle registration S15490 and pickup truck registration S10422. She has sought an order that the immovable property and vehicles be shared equally between the parties, with the Respondent paying her half share of the value of each. She also sought orders to prevent the Respondent from disposing of the immovable property in question and for a valuer to be appointed to value the same.

[3]       The Respondent filed an affidavit in reply on the 17 June 2011 denying the joint nature of the property and vehicles. He accordingly sought that the petition be dismissed with costs.

Evidence

[4]       The Petitioner testified on her own behalf and explained that the parties lived together at Pointe Au Sel. She took care of the house and cared for the children. The Respondent purchased the immovable property (Title C3508, later C6759) in his sole name during the marriage. The Petitioner explained that the property was purchased in part with money she had earned from selling ‘baka’ and from working as a waitress and at the tuna factory. She noted that the Respondent also acquired a car and a pickup in the course of the marriage, which are also in his name. She estimated the value of the car to be Seychelles Rupees Seventy Thousand (SCR70,000/-). She testified that she has spent money on fixing the car. She estimated the value of the pickup to be Seychelles Rupees Sixty Five Thousand (SCR65,000/-). She further testified that the pickup was with her brother but the car was with their youngest son. She added that she contributed to the purchase and/or maintenance of the vehicles. She confirmed that she now works as a child-minding assistant.

[5]       The Respondent testified in his defence that he worked at several organisations, the longest being at the PUC, where he worked for 25 years before retiring. He explained that he purchased the land, Title C3508, from Mr. John Pillay for Seychelles Rupees One Hundred and Seventy Five Thousand (SCR175,000/-). The registration of the immovable property was produced as Exhibit D1. The transfer of the said Title was subsequently admitted as evidence, which conversely records that the property was transferred for a sum of Seychelles Rupees One Hundred Thousand (SCR100,000/-), Exhibit D4. The parties did not live on this property and there is no house on it. The land was eventually subdivided by the Respondent, who transferred half of it to his daughter. The daughter sold it and moved to Australia with her family and the Petitioner. The valuation of the immovable property prepared by Jacques Renaud (Exhibit P2), valued the property (now Title C6759) at Seychelles Rupees Nine Hundred and Thirty Seven Thousand (SCR937,000/-).

[6]       The Respondent explained that he lives at Pointe Au Sel on his family’s land, which is co-owned by him and others (Title C5653). He inherited this land with his siblings. The certificate of official search of the Title indicates that the owners are Flavie Camille (1/7), Vivienne Camille (1/7), and Claver Camille (the Respondent) (5/7) (Exhibit D2). The respondent averred that after the parties were married the Petitioner’s aunt also gave them some land in Anse Boileau. He submitted that he built a house for the family there with his own money, though he has no evidence of this. Counsel for the Petitioner conversely submitted that their son built the house. He believes that the property is in his wife’s name. The Petitioner apparently moved to this house at Anse Boileau after the parties split. The parties’ handicap child, Johan Camille of 39 years old, lives with the Respondent. Regarding the ‘baka’ production, he initially denied that the Petitioner had ever assisted with it, though he acknowledged that she helped in some way. The business was run by himself and his son. 

[7]       In relation to the vehicles, he confirmed that the pickup is with the Petitioner’s brother. It is, however, still under his name. The other vehicle (S15490) is still with the son after he crashed it. The Respondent said during evidence that the petitioner can keep the vehicles.

Findings

[8]       Several properties were referred to in the course of the proceedings, though the parties are limited by their pleadings. In relation to immovable property, the petition only seeks a property adjustment order in relation to the Title C6759. The Petitioner has not claimed a share in the home in which the family lived, or at least where the Respondent now lives, which the evidence indicates is on the inherited land and is jointly owned by the Respondent (Title C5653). For his part, the Respondent has not claimed a share in what appears to be the house in which the Petitioner lives in now (or did live in after the marriage collapsed) at Anse Boileau, which he claims to have built. Neither of these properties are subject to these proceedings, having not been included in the pleadings.

[9]      The Title C6759 is a bare piece of land, which is in the sole name of the Respondent. It was initially Title C3508 (Exhibit D4), but the Respondent subdivided the land, giving half to his daughter. The remaining portion at issue is C6759. The current value of the property is Seychelles Rupees Nine Hundred and Thirty Seven Thousand    (SCR937,000/-). The family has at no point lived on this land. The evidence supports the finding that the property was acquired primarily with funds of the Respondent. The Petitioner gave evidence that some of her earnings from the ‘baka’ business and prior work contributed to the purchase price. This is indeed possible, but it was likely a very small portion of the purchase price. There is no doubt, however, that the property was acquired in the course of the marriage, and that the Petitioner contributed in kind.

[10]    The petition also seeks half share of the value of the two vehicles owned by the Respondent. The Respondent indicated that he would be willing to allow the Petitioner to keep these vehicles, neither of which are in his possession. The petition avers that the motor vehicle S15490 is valued at Seychelles Rupees One Hundred Thousand (SCR100,000/-), and the pickup truck S10422 – at Seychelles Rupees Three Hundred Thousand (SCR300,000/-). These values were not, however, supported by the evidence given by the parties. During examination in chief, the Petitioner estimated the value of the car to be Seychelles Rupees Seventy Thousand (SCR70,000/-) and the value of the pickup to be around Seychelles Rupees Sixty Five Thousand (SCR65,000/-). Similarly, the Respondent’s evidence was that the pickup truck was purchased for Seychelles Rupees Seventy Five Thousand (SCR75,000/-). The Court accordingly finds that the value of the vehicles collectively was, at the highest end, around Seychelles Rupees One Hundred and Thirty Five Thousand (SCR135,000/-), but probably was much lower, particularly given there is evidence that the car was crashed by their son. An assessment and valuation of vehicle registration numbers S10422 and S15490 was also itemized, but not admitted as evidence.

Law

[11]     The relevant provision of the Act is section 20 (1) (g). It provides:

“20. (1) Subject to section 24, on the granting of a conditional order of divorce or nullity or an order of separation, or at any time thereafter, the court may, after making such inquiries as the court thinks fit and having regard to all the circumstances of the case, including the ability and financial means of the parties to the marriage-

(g) 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.”

[12]     The Court in Maurel v Maurel SCA 1/1997 (9 April 1998) noted that the Act does not establish ‘in any form, the system of community of property between spouses during marriage’. It does, however, grant the Court a discretion to take account of all of the circumstances of the case when making an order in respect of any property of a party to a marriage.

[13]     The Court of Appeal in Esparon v Esparon 12/1997, LC 1998, ([1998-1999] SCAR 191) noted that:

“When considering ‘all the circumstances’ under section 20(1) of the Matrimonial Causes Act, a court may have regard to –

a)   Standard of living before the breakdown of the marriage;

b)   Age of the parties;

c)   Duration of the marriage;

d)   Physical and mental disability of either party;

e) Contributions made by each party to the welfare of the family, including housework and care roles; and

f)    Any benefit which a party loses as a result of the divorce.

‘Ability and financial means’ under section 20(1) of the Matrimonial Causes Act covers factors such as income, earning capacity, property and financial resources that each party has or is likely to have in the foreseeable future as well as the financial needs and obligations each party has or is likely to have in the foreseeable future.”

[14]     The Court must, therefore, exercise its discretion on the basis of the circumstances in the particular case, as noted in Hoareau v Hoareau [2013] SLR 155 (SCA 37/2011) that, ‘each case has to be decided on the basis of its own facts’. The Court will look beyond the financial contributions of the parties to also consider ‘indirect contributions which the family explicitly or impliedly intended during the subsistence of the marriage.’ (Hoareau v Hoareau (supra), Samori v Charles [2012] SLR 371 (SCA 38/2009), (Fernando J)).

[15] In Etienne v Constance (1977) SLR 233, the Supreme Court (Sauzier J) took the view that property acquired by one spouse with their own resources remains that spouse’s personal property. The judgment expressly noted that, ‘the fact that a married woman devotes herself to the household work and thus helps her husband to save money with which he acquires property does not make that married woman have any share in the property thus acquired’. This case, however, predates the Act and, moreover, there is now ample modern jurisprudence that recognizes that one party’s indirect contributions may in fact mean that a party acquires a share in matrimonial property, even if they are not one of the owners on the registered title.

[16]     In Chetty v Emile SCA 11/2008 it was stated that under section 20 (1) (g) of the Act, ‘the court may make an order in respect of any property of a party to a marriage for the benefit of the other party even though the other party has not contributed financially in any way to the acquisition of such property provided the circumstances so warrant.’ And further that, ‘contributions towards the matrimonial property cannot be measured in pure monetary terms . . . the cooking, the sweeping, the cleaning, the sewing, the laundering, tending to the children and many other nameless chores in a home are not things for which a value can be put on, but certainly contributes towards the build-up of matrimonial property’.

Analysis

[17]     The Court must now address whether it should issue a property adjustment order in favour of the Petitioner in respect of the Title C6759, registered in the sole name of the Respondent. If the Court does issue such an order, it must then consider what proportion the Petitioner is entitled to. The Court must also decide what orders to grant in respect of the vehicles, which are also registered in the name of the Respondent.

[18]     Taking into account the above-mentioned jurisprudence, the Court considers that the Respondent is entitled to 25% of the property value of the Title C6759. This is primarily on the basis of the Petitioner’s indirect contributions to the purchase of the property. The property was purchased in 1996, which was nine years into the marriage. Though, the family did not live on this property, the Respondent’s ability to save his earnings to purchase the property was undoubtedly facilitated by the Petitioner’s responsibilities in respect of the children and the household. The evidence further supports that the Petitioner did in fact contribute directly to the acquisition of the property, albeit minimally, owing to her primary role as housewife. The Court also takes into account the long duration of the marriage, which lasted 23 years, and the fact that the couple raised five children together. The marriage was clearly one of strong partnership. The value of the property is Seychelles Rupees Nine Hundred and Thirty Seven Thousand (SCR937,000/-). The Petitioner is therefore entitled to 25% of this value, being Seychelles Rupees Two Hundred and Thirty Four Thousand and Two Hundred and Fifty (SCR234,250/-).

[19]     In respect of the vehicles, the Respondent indicated that he would be willing to transfer the vehicles to the Petitioner. The Petitioner has not sought an order to this effect, but requested that the court make any other and further order as the Court deems fit. The evidence is that neither of the vehicles are in the possession of the Respondent: the pickup truck is in the possession of the Petitioner’s brother and the car is in the possession of their son. The Court, therefore, orders that the Respondent transfer the vehicles into the name of the Petitioner.

Conclusion

[20]     The Court makes the following orders:

(i)        The Respondent is to pay Seychelles Rupees Two Hundred and Thirty Four Thousand and Two Hundred and Fifty (SCR234,250/-) to the Petitioner;

(ii)       Once the Respondent has paid the above-mentioned sum to the Petitioner, the Land Registrar shall remove the inhibition order in respect of property Title C6759;

(iii)      The Respondent is to transfer the registration for vehicles S15490 (car) and S10422 (pickup truck) to the Petitioner;

(iv)      Once the Respondent has transferred the registration for the above-mentioned vehicles, the Seychelles Licensing Authority shall remove any inhibition orders in respect of the vehicles; and

(v)       Each party shall bear their own costs.

Signed, dated and delivered at Ile du Port on the 3rd day of April 2020

ANDRE J

Judge of the Supreme Court