The Court of Appeal's decision in Vidrine v Vidrine(1) was delivered on January 27 2011. This decision is a significant addition to the jurisprudence of Belize relating to the division of matrimonial property. Justice of Appeal Denys Barrow made a thorough and clear examination of the principles to be considered in actions brought pursuant to Section 148A(3) of the Supreme Court of Judicature Act, which empowers the Supreme Court to alter property rights during divorce proceedings.
Justice Barrow disagreed with the application by former Chief Justice Conteh of the principles set out in White v White,(2) Miller v Miller and McFarlane v McFarlane,(3) which considered the provisions of Section 25(2) of the Matrimonial Causes Act 1973 (UK), and with his conclusion that, as held in those cases, the objective of the court when considering Section 148A of the act is to achieve a fair and just outcome in the division of assets with regard to fairness, equality and non-discrimination.
Rather, Barrow highlighted that Section 148A of the act follows the Australian and Barbadian Family Law Acts and that therefore cases based on the legislation from those countries offer better guidance as to how Belize law should be applied on requests to alter property rights within divorce proceedings.
Cases from these countries confirm that the correct approach is comprised of two steps:
- identifying and valuing the property acquired by the parties during the marriage; and
- considering and evaluating the matters listed in subsections (5)(a) to (i) of Section 148A.
Barrow made several important observations when discussing each heading.
In identifying property, neither property acquired before the marriage nor the proceeds of sale of such property should be considered, even if the property was sold during the marriage. Conversely, property acquired while the parties are separated is still deemed to have been acquired during the marriage.
Each of the matters set out in subsections 5(a) to (i) must be considered equally, although the weight given to each may be different.
The court should not allow financial contributions to overshadow non-financial contributions and must consider the weight to be given to each.
A distinction must be made between a spouse's non-financial contribution to the acquisition, conservation or improvement of the relevant property, and a spouse's non-financial contribution in the role of a spouse (ie, a consideration of the help and support given by a wife to a husband).
"Other facts or circumstances" as listed in Section 148A(5)(i) should be taken into account only if the justice of the case requires it. Therefore, this section does not allow consideration of matters other than those specified in Sections 148A(a) to (h), except to that limited extent.
Applying the principles to the case before the court, Barrow held that:
- two properties owned by the husband were excluded from consideration by the court. One was acquired before the marriage, and while the second was acquired during the marriage, the wife was unable to show any contribution to its acquisition since it was acquired while the parties were separated.
- the wife had made a non-financial contribution to the third property in her role as wife, which had "significantly benefited and positively impacted the husband, the home and the family unit in a general way at a time when the husband was engaged in the acquisition, conservation and improvement [of that property]". The court assessed her interest in that property at 30%.
The award saw a significant reduction on the Supreme Court's judgment, where orders were made in favour of the wife in respect of all the properties.
The Court of Appeal also took the opportunity to clarify some aspects of the law relating to the Supreme Court's jurisdiction in matrimonial cases.
Applications under Section 148A may be made only once divorce proceedings have begun. Conversely, applications for declarations of property rights by a husband or wife can be made at any time under Chapter 176 of the Married Women's Property Act.
An application for maintenance must be made by a separate petition pursuant to Section 152 of the Supreme Court of Judicature Act and Rule 65 of the Matrimonial Causes Rules. The application is made after the grant of the decree nisi and not later than one month after the grant of the decree absolute.
The matters to be considered on such an application are limited to:
- the wife's fortune;
- the husband's ability; and
- the parties' conduct.
For further information on this topic please contact Eamon Courtenay at Courtenay Coye & Co by telephone (+1 345 814 2013), fax (+1 345 949 4901) or email ([email protected]).