CIVIL PRACTICE & PROCEDURE - FAMILY

STUDY NOTES 2000

TUTORIAL SHEET # 1- AFFIDAVITS

Written statements of evidence sworn by the person making

it, that is, the deponent.

Must be entitled in the cause or matter in which it is

sworn.

If more than one plaintiffs or defendants it is only

necessary to state the name of the first, followed by the

words "and others", or "and another".

Suit # to be in the letter that starts the last name, eg.

Suit F 2000/W…

Always begin with the recital,eg, I Connie Chung having

been sworn make oath and say as follows:

DO NOT number the recital it is not part of the

numerically numbered paras.

This para to be followed by that which states the postal

address and occupation of the deponent.

I reside and have my true place of abode at36 College Common, Kingston 6, in the parishof Saint Andrew and I am a Bank Robber.

General rule of Evidence that witness not allowed to give

hearsay as evidence. But under S.408 of the CPC the court

in an interlocutory matter will allow hearsay as evidence

as long as the deponent states the ground and reason for

it. Must state for eg who told you so.

I am credibly informed by Flado who lives atAugust Town and I do verily believe thatFillyFonze broke the fence at 5:00 am in themorning.

Rossage v. Rossage [1959] C.A

In proceedings following divorce, father made application to

the court for mother's access to the child to be suspended -

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application supported by several affidavits which contained

scandalous imputations against the mother based on hearsay -

mother applied to have them removed from the file.

Held : Since the proceedings were not interlocutory but

final the hearsay evidence was not necessary.

N.B. The application for denial of access would decide on

the rights of the party as to who should have access.

The court referred to the RSC the equivalent of our CPC

which provide that affidavit shall be confined to such facts

which the witness is able of his own knowledge to prove.

Gleaner Co. Ltd. v Wright [1976] C.A. Jamaica

The principle: where an appellant applies for a stay of

execution of the judgement appealed from, the affidavit in

support of such application, if grounded on statements by

the deponent as to his information and belief, must disclose

the sources and grounds thereof.

The court focused on S. 408 which states that in

interlocutory proceedings an affidavit may contain

statements of information and belief, it is a condition that

the sources and grounds thereof must often be setout

therein.

The jurat must be signed by the deponent in front of the

person before whom it is sworn, ie, the JUSTICE OF THE

PEACE.

If two or more persons make the affidavit then the names

of all the deponents must be entered on the jurat.

Where all of them swear before the same person then the

jurat may state that it was sworn by both or (all the

above named ) deponents.

If the deponent is blind or illiterate the officer taking

the affidavit must certify in the jurat that

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1. the affidavit was read in his presence to the

deponent,

2. the deponent seemed perfectly to understand it,

and

3. the deponent made his signature or mark in the

presence of the oficer.

Re Longstaff (1884) Ch.D

Affidavits made by deponent were sworn by the usual jurat -

deponent read imperfectly and could only sign his name - It

was stated by the managing clerk of the court that he

prepared the affidavit from the personal notes of the

deponent- that he read it over to the deponent before he was

sworn - and that the deponent appeared to understand them -

there was however no proof that the statements were read

over in the presence of the commissioner of oaths (person

before whom it is to be sworn).

Held : Court should not allow a defective affidavit to be

filed. It must be inferred that the affidavits were not read

over in the presence of the commissioner of oaths and must

therefore be taken off the file.

The court noted that if the affidavit was not read over in

the presence of the commissioner he therefore did not know

the facts and therefore did not satisfy himself that the

deponent understood the affidavit.

Other important cases

Re Cloake (1891)

Certain affidavit was made - certain words were

interlineated but were not initialed by Cloake or a notary -

Ct. had to decide whether the affidavit was properly done

with interlineation not properly authenticated.

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Held : An affidavit with an interlineation not properly

authenticated ought not to be filed without an order of the

court. N.B. This relates to section 416 of the CPC.

Court relied on Eddowes v. The argentine Land and Mercantile

Agency Co. which held that where the words omitted from the

affidavit were an essential part of the affidavit the court

had the jurisdiction, not withstanding the defect, to allow

the affidavit to remain on file. (see s. 414 CPC)

N.B. The words omitted were "Before me" which were left out

of the jurat.

Jamculture Ltd. v. Black River Upper Morass Devp't Co. Ltd.

[1989] C.A Jam.

Affidavit did not disclose that the appellant had breached a

covenant to pay rent however documents attached to the

affidavit made mention of non payment of rent - appellant

got the court to grant interim inj. to restrain the

respondents from breaching a covenant for quiet enjoyment.-

On an application by the Respondent the Appellants exparte

injunction was dissolved by the CJ who held that there was a

material non-disclosure in the affidavit, a non-disclosure

which could have had an effect on the judge who granted the

injunction-The court noted that the fact that documents were

attached to the affidavit in which there may have been some

admission that rent was due was not sufficient as it was not

the task of judges to wade through exhibits to unearth such

an admission; an applicant is to make full and frank

disclosure by deposing expressly to the facts to enable the

court to form its judgement.

Foster v. Harvey

Affidavit of P sworn by him before one of the Clerks of his

firm, a gentleman duly qualified to administer oaths.

Held :It is no objection to the admissibility of an

affidavit of a party to a cause, who is a solicitor, that

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his affidavit is sworn before a clerk in the employ of the

firm of which such a party is a member, such clerk being

duly qualified to administer oaths, and the firm not being

the solicitors on the record for the deposing party.

Re: Bagley (1911) KBCase held that an affidavit cannot be sworn before acommissioner of oaths if he is the solicitor to any of theparties in the proceedings or a clerk to any such solicitor.

ORIGINATING SUMMONS

Used for the applications made to the supreme or highcourt under a particular statute.

N.B. RULE 53 of the Matrimonial causes rules~~~Where everin the MCA you may make an application to the court andthe section does not state what process you should useyou should go by way of originating summons

N.B S.5 MCA ~~~~If filing for a divorce, a petition forthe decree of dissolution of marriage can be presented,therefore no need for an originating summons. But notethat leave of the court needed to file for a divorcebefore the two years have passed since the marriage mustbe done by originating summons supported by affidavit.

TUTORIAL SHEET #2 - MARRIAGE

Lord Penzance in Hyde v. Hyde defines marriage as "thevoluntary union for life of one man and one woman to the exclusion of all others".

MARRIAGE ACT

By virtue of S. 4 non observance of the conditions of

this Act will not make a marriage otherwise lawful and

which is actually solemnized, null and void, except if

the non observance relates to S. 3 or S.37 of the Act

S.3 gives cases under which marriage may be void.

S. 37 deals with marriages where one of the parties is inarticulo mortis ie. At the point of death.

S. 16 tells which persons are qualified to act as

marriage officers.

S. 7 states Civil Registrar to be ex officio marriage

officer.

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S. 17 tells of the preliminaries, which should be

observed when one is being married on a Civil Registrar's

certificate.

- each party to give notice of intended marriageto the Civil Registrar of parish in which theyreside

- must reside in the parish at least 15 cleardays (exclusive of the day of issue and hearing) before the giving of the notice.

- Single notice will suffice if both persons livein the same parish or if one of the parties tothe intended marriage reside outside jamaica.

S. 18 gives preliminaries to marriage on a Marriage

officer's Certificate.

S. 22 provided for one to get special licences

S. 24 - no consent of others needed if person 18 yearsold or is a widow or widower - otherwise consent neededof father, if dead then guardian, if none, then mother ifunmarried. N.B. consequences of marriage without therequisite consent.

S. 25 makes it possible for anyone to give objection toan intended marriage by giving notice of objection toCivil registrar or Marriage Officer.

S. 27 tells how marriages are solemnized and theconditions to be observed

S. 31 tells how marriages are to be solemnized SS. 61-70 Outlines all the offences under the Act.

The Legal Consequences of Marriage

- CONSORTIUM- This means living together as Husband and

wife with all the incidents that flow from that

relationship.

R v. Jackson [1891] QB

Wife lived with relatives - H in New Zealand - When H

returned to England W did not want to resume living with

him - H when he returned abducted her saying he had a right

to her consortium and therefore could force her to live

with him - W applied for a writ of habeus corpus.

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Held : It was no defence that H was merely confining her in

order to enforce his right to her consortium.

Court stated that married women were now free to come and

go at their will.

R v. Reid [1973] QB

Court held that a H who steals, carries away or secrets his

W against her will is guilty of kidnapping.

Incidents of consortium

- Wife's right to H's surname which she can retain even after

divorce. H has no property in the name and cannot sue W for

using it except if she uses it especially for fraudulent

purposes (Cowley v. Cowley [1900]). If she holds herself

out as his wife after he has remarried, she may be guilty

of libel or slander if the reasonable inference is that he

is not legally married to his second wife. N.B Nothing in

the Marriage Act makes it mandatory for W to take H's name;

it is purely custom.

- Martimonial Home. Both parties have a duty to live together

as far as the circumstances would permit. Both parties have

a right to be heard and which they must settle by agreement

where the matrimonial home is to be. (Dunn v. Dunn [1949]).

This case also states that if the H is the sole bread

winner he may have the last word on this. King v. King

[1941] 2 AER states that if the wife is working and the H

is not, her consideration must come first.

N.B What ever arrangement either proposes must be

reasonable from the other's point of view. Eg. H cannot

expect W to live with his mom if the two will not get

along.

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- Sexual Intercourse. There is a duty on each spouse to

consummate the marriage. This mutual right to intercourse

continues after consummation.

R v. R [1991] HL - The law on Marital Rape

W left H and went to her parents home - told H she intended

to petition for divorce - H went to parents, broke in and

attempted to have sexual intercourse with her against her

will.

Held : Marriage is in modern times regarded as a

partnership of equals no longer one in which the W must be

the subservient chattel of H

There was no longer a rule of law that a W was deemed

to have consented irrevocably to sexual intercourse with

her H.

H can be convicted of rape or attempted rape where W

does not consent to sexual intercourse.

N.B. Sexual Offences (Amendent) Act 1976 in defining rape

using the words "unlawful sexual intercourse " perpetuates the

former law of H not being guilty of rape when it comes to

his wife.

NB. The rights to consortium is reciprocal (Place v. Surl

[1932])

Nanda v. Nanda [1967]

W whose H had deserted her went to his house against his

will where he lived with another woman and their two

children.

Held : H entitled to injunction to restrain her from

trespassing on property which was never matrimonial

property.

Duty to respect marital confidences

Argyll v. Argyll [1965]

After divorcing the plaintiff, the defendant wrote a series

of articles for a newspaper based on her adultery - this

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contained information relating to P's private life,

personal affairs and private conduct communicated to D in

confidence during the subsistence of the marriage.

Held : Injunction granted to prevent D from divulging the

confidences and the newspaper from publishing them.

Per Ungoed-Thomas J~~~~ "There could hardly be anything

more intimate or confidential than is involved in that

relationship, or than the mutual trust or confidences which

are shared between H and W."

The meaning of separation

Santos v. Santos [1971] CA

Laid down that where the parties to a marriage live in

separate places, it does not follow that they are living

apart within the meaning of the divorce act. Living apart

implies more than physical separation. It is necessary that

at least one of the parties regard the marriage as at an

end. This additional element to physical separation is

capable of being brought into existence unilaterally, in

that it depends on the attitude of mind of one of the

parties to the marriage. It is not necessary for this

thought to be communicated to the other party for it to be

operative in law. Proof of when the condition of living

apart starts, following a period of physical separation,

depends on the circumstances of each case.

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TUTORIAL SHEET #3 - NULLITY OF MARRIAGE

S.4 MCA

Grounds on which one may apply for a decree of nullity of

marriage.

One of the parties has a husband or wife still alive at

the time of the marriage.

R v. Yacoob [1981] CA

W's marriage to H1 was ended by divorce in 1964 - in 1965

she married H2 who unknown to her was already married to X -

in1968she married H3, but did not see him after the ceremony

- in 1969 she married H4 who disappeared - in 1970 she

obtained a decree of nullity in respect of the marriage to

H2, and in 1971 she married to the defendant.

Held : Marriage to D void since at the time she was still

married to H3.

Marriage falls under S. 3 Marriage Act which gives

additional grounds on which a marriage will not be

considered valid.

Corbett v. Corbett [1970] Probate Division

W registered as male at birth - later underwent sex change

operation which produced an artificial vagina - the court

had to decide whether W was a woman for the purposes of

marriage and therefore capable of consumating a marriage.

Held : Marriage being essentially a relationship between a

man and a woman, the validity of the relationship depended

on whether W was or was not a woman. W being a biological

male from birth, the marriage was void.

Per Ormond J : The criteria must be biological, for even the

most extreme degree of transsexualism in a male or the most

severe hormonal imbalance which can exist in a person with

male chromosomes, male gonads and male genitalia cannot

produce with a person who is naturally capable of performing

the role of a woman.

Re Pand G [Transsexuals] [1996] QBD

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Transsexualism - after gender reassignment Registrar General

refused alteration of birth certificates of two adults -

They applied for judicial review

Held : The court applied Corbett v. Corbett and stated that

at the time no medical evidence at the time to prove that

the boys were in correctly registered at birth. Neither

articles 8 or 14 had been violated.

In the Rees Case the applicant who was registered as female

at birth underwent gender reassignment said Art 8 and 12 of

the convention had been violated when the registrar refused

to alter the register - Courts held neither art. Had been

violated. N.B The relating to transsexuals still in a

transitional stage.

The problem surfaced again in B v. France [1992] and the

court noted that the re still remains some uncertainty as

to the essential nature of transsexualism, therefore the

legal situations which results are extremely complex.

Pugh v. Pugh [1951] Probate

Party to marriage under 16 years - marriage took place in

Austria - W from Hungary - H from England - marriage legal

under Austrian and Hungarian law but illegal under English

law - W petitioned for nullity on the ground that she was

under 16- Court had to decide whether the UK act which

prohibited this had extra territorial effect and hence the

validity of the marriage.

Held : Act which prohibited marriages with persons under 16

had extra territorial effect and applied to British subject

where ever he married.

Court referred to Brook v. Brook [1858] which held that the

law of the country in which a marriage is solemnized cannot

give validity to a marriage prohibited by the laws of the

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country of the domicile and allegiance of the contracting

parties.

Lack of a valid consent. This applies only to marriages

celebrated after feb. 1, 1989.

When is consent not valid :

1. If obtained by fraud or duress

Buckland v. Buckland [1967] Probate division

Applicant sought declaration from court that his marriage

was null and void because it lacked his consent. Fear was

brought about because of an unjust charge preferred against

him. He got married on the advise of his solicitor in order

to avoid going to prison for impregnating a young girl.

Held : Petitioner agreed to marriage because of fears, which

were reasonably entertained. Fear arose because of external

circumstances for which he was not responsible. Marriage

declared null and void.

N.B. Court relied on H v. H which stated that while fear can

no doubt vitiate consent, but in order for this to happen it

must first be shown that (a) fear of a sufficient degree was

present, and (b) that the fear was reasonably entertained.

Szechter v. Szchter [1970] Probate Division

Sir Joscelyn Simon P stated the proposition that it is

insufficient to invalidate an otherwise good marriage

because a party entered into it in order to escape a

disagreeable situation, such as social degradation or

penury. In order for the impediment of duress to vitiate an

otherwise valid marriage, it must be proved that the will of

one of the parties thereto has been over-borne by genuine

and reasonably held fear caused by threat of immediate

danger (for which the party is not himself responsible) to

life, limb or liberty, so that the constraint destroys the

reality of consent to ordinary wedlock.

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Hirani v. Hirani [1984] CA

Marriage arranged for young Indian Muslim - Parents

threatened to oust her from home if she did not consent to

arranged marriage - Marriage took place - Petition for

nullity on the ground of duress.

Trial judge held :Refused the decree since no duress to

life, limb or liberty.

Held on appeal : It was not necessary to find threat to

life, limb or liberty for duress to operate. The crucial

question was whether the threats or pressure were such as to

overbear the will of the individual and destroy the reality

of consent. Duress, whatever form it took, was a coercion

of the will so as to vitiate consent. The threats and

pressure of parents had clearly overborne her will and thus

invalidated her consent.

2. If one party mistaken as to the identity of the

other party or

3. Mistaken as to the nature of the ceremony performed

Vervake v. Smith [1982] HL

Belgian born woman married English man in England - Woman

married a second time to man in Italy - on the same day

husband of marriage #2 died leaving real property in England

to which she was entitled to if marriage #2 valid - Sought

declaration that marriage #1 null and void for lack of

consent and ignorance of the true nature of the ceremony -

Court dismissed petition because petitioner knew of the

nature of the ceremony - Petitioner returned to Belgium and

sought declaration that marriage null - Belgian court

declared it to be void ab initio - Petitioner tried

unsuccessfully to get declaration recognised in English

courts.

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4. If one party mentally incapable of understanding the

nature and effect of the marriage ceremony at the

time of the marriage

In the Estate of Park [1953] CA

The courts in considering whether or not a marriage is

invalid on the ground that one of the parties was of unsound

mind at the time the marriage was celebrated, the test to be

applied was whether he /she was capable of understanding the

nature of the contract being entered into, free from the

influence of morbid delusions on the subject. To ascertain

the nature of the contract of marriage, a person must be

capable of appreciating that it involves the duties and

responsibilities normally attaching to marriage.

At the time of the marriage the parties were of the same

sex.

N.B. Rule 30 of the MCA which makes it possible for the

petitioner in proceedings for nullity to get an order

from the court for a medical examination of the parties.

N.B. Although rule 30 implies that nullity on the ground

of impotence or incapacity makes a marriage void one

should not read the rule as such. The MCA rules is a

regulation which supplements the MCA and does not take

precedent over it.

N.B S.15 which tells us when the court has jurisdiction

to hear nullity proceedings

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TUTORIAL SHEET #4 - DIVORCE-Divorce in Jamaica is based on the No Fault Model and is

governed by the MCA

Under S. 5 :

-Either party to the marriage may petition for the

dissolution of marriage.

-The court empowered to grant it if the marriage has broken

down irretrievably.

-Irretrievable breakdown evidenced by 12 months separation

immediately preceding the date of the presentation of the

petition for dissolution

- The court must be satisfied that there is no reasonably

likelihood of cohabitation being resumed.( N.B The onus of

proving a reasonable likelihood rests on the party asserting

it and the court must investigate the allegation. In the

Marriage of Bates and Sawyer )

-The parties will still be deemed to have separated for 12

months if the continuous period is broken by one period of

resumption of cohabitation, not exceeding 3 months, with a

view to reconciliation.

What constitutes separation

- See S. 6 MCA

- See Santos v. Santos, supra

-Additionally, in Main v. Main the court stated that a

marriage does not end so long as both spouses bona fide

recognise it as subsisting, and in particular it does not

end by reason of separation brought about by the pressure of

external circumstances such as absence on professional or

business pursuits.

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-N.B. Like the court in Santos v. Santos the court in Main

v. Main concluded that a state of affairs of living apart is

established by something more than the mere physical

separation of H and W. This necessary additional element

must involve at least a recognition that the marriage is in

truth at an end and has become a shell.

What degree of proof is needed to establish that the

condition of living apart has commenced.

- This depends on the circumstances of each case

- The evidence may be derived from a letter, a reduction or

cessation of visits to a spouse in prison, or cohabitation

with a third party

Can there be separation if H and W continue to live under

the same roof?

- The parties to a marriage may be held to have separated

and to have lived separately notwithstanding that they have

continued to live in the same house or that either party has

rendered some household service to the other.

Pavey v. Pavey (1976)

Parties to the marriage had continued to live in the

matrimonial home throughout the relevant 12 month period

necessary to support a petition for divorce.

- The court noted that the crucial question was whether

there had been a change in their relationship, gradual or

sudden, constituting a separation. One has to consider the

nature of the matrimonial relationship that had subsisted

between the parties, and the changes that had taken place in

that relationship. The court would have to decide whether

those changes are such as to support a finding that the

marriage had broken down.

Under S.8- No petition for divorce can be presented

until 2 years have passed since the date of the marriage.

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However, one can present the petition before 2 years once

you can prove special circumstances and one of the

parties with the assistance of an approved marriage

counsellor attempted reconciliation. ( N.B rule 4 of

theMCA Rules )

Under S. 9 - If a party to the marriage has been absent

for 7 years or more the other may petition to the court

to make a decree of presumption of death and order for

dissolution of marriage.

S. 11-14 The court seeks first to save the marriage by

making provisions for counselling and reconciliation.

S.15 - Outlines the situations in which the court has

jurisdiction to grant a

decree for dissolution of marriage.

S. 27 - The restriction on the court not granting decree

for dissolution of marriage or nullity if it is not

satisfied of the arrangements for the care and upbringing

of the relevant children who are under the age of 18

years.

N.B Rule 8 which deals with the forms and content of a

petition.

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TUTORIAL SHEET # 5 - FINANCIAL PROVISION

S. 20 - 22 Outlines the power the courts have to make

financial provisions.

- The guiding principle is the need or means of

the W and the ability of the husband to pay.

The court must also consider all the

circumstances of the case.

- The power of the court to make provision for

the W is based on her contribution to the

acquisition of property financial or otherwise.

It is not based on any rights being claimed by

the wife.

- The application by the W is for the court to

make an order for H to put a gross sum in a

fund from which W can get the interest. This

fund has to be untouched by H. This continues

throughout the lifetime of the W even after the

death of H .

- The court may if it thinks fit order H to pay

to W during their joint lives periodic payments

(whether weekly or monthly) for her maintenance

and support. This order may be given either in

addition to or instead of the secured provision

order.

- The Secured Provision Order under S.20 (1) is

not based on maintenance. The court can make a

separate order based on maintenance.

Ancillary financial provision for the children

N.B. S.23 - In any proceedings under S.10 or in proceedings

for nullity or dissolution of marriage, the court may make

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such orders as it thinks fit for the custody, maintenance

and education of any relevant child.

- On granting a decree or anytime thereafter

(either before or after the decree is made

absolute) the court may order the H or W to

secure for the benefit of the relevant children

such gross or annual sum of money.

- This secured provision order shall not extend

beyond 21 years of the child unless the child,

because of illness or infirmity is unable to

maintain himself.

- In granting this order the Court to consider

the extent to which that party, after accepting

the child as a child of the family, assumed

responsibility of the maintenance of the child.

TUTORIAL SHEET # 6 - MWPA

Until the passage of the Married Women Property Act

married women could not own property separately from her

husband.

Under the MWPA the court has jurisdiction in divorce

cases to order such settlement as it thinks reasonable to

be made of the property for the benefit of the innocent

party and the children of the marriage.

The MWPA does not give court jurisdiction to vary

existing titles or any wider power to transfer or create

interest in property than it would normally have.

Generally, therefore, on divorce the parties would leave

the marriage with what they owned (in law and equity)

since the court in Jamaica has the power only to declare

property rights and not redistribute property on divorce.

The wife may apply for additional financial provision.

PRESUMED RESULTING TRUST

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If Faldo pays for property and conveys it in the name of

Rac, there is a presumption that Rac holds the property

on trust for Faldo him maving paid the purchase price.

If Faldo pays for property and conveys it in the joint

names of both Faldo and Rac, then Rac holds her interest

in the property on trust fof Faldo.

If both Faldo and Rac pay for property which is conveyed

in the name of Rac only, then a resultig trust arises in

favour of them both in proportion to their contribution.

Springette v. Defoe [1992]

Principle laid down If two or more persons purchased property

in their joint names and there has been no declaration on

trust on which they should hold the property, they will as a

matter of law, if there is no evidence to the contrary (i.e.

evidence of common intention communicated between them ,

made manifest at the time of the transaction itself, that

they should be entitled to other proportion), hold the

property on a resulting trust for the persons who provided

the purchase money, in the proportion in which they provided

it. In other words, when a purchase money resulting trust

arises in favour of a person who has contributed the

purchase price, beneficial ownership will be enjoyed in the

proportion in which the purchase money was contributed.

Cowcher v. Cowcher [1971]

Matrimonial home acquired - house purchased in H's name -At

the time of purchase, payments by W to H and H's business.

Held : W's beneficial interest in the house arose under a

resulting trust from the actual provision of the purchase

price unless a contrary consensus as to the proportions in

which the parties were to be taken as having provided the

purchase moneys could be inferred from the facts.

Midland Bank v. Cooke [1995] C.A

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H and W purchased house - financed by mortgage and money

from H's parents as wedding gift to both of them - property

conveyed into heir joint names - trial judge held her

interest to be quantified at 6.4% of the value of the

property being the proportion borne by her share of the

wedding gift.

C.A. Held : The court was not bound to deal with the matter

on the strict basis of the trust resulting from the cash

contributions to the purchase price, and as free to

attribute to the parties an intention to share the

beneficial interest in some different proportions.

Presumption of advancement

This works as a rebuttal of the presumption of a

resulting trust. Because of the nature of the

relationship of H and W the court will take as prima

facie evidence that H intended to make a gift to his W, a

situation where H pays the purchase money for property

which is conveyed in W's name or transferred property in

the W's name.

This presumption does not apply to de facto marriages or

a situation where W puts up the money and the property is

conveyed in the name of H.

Reliance on this presumption is often attacked and the

courts seem to be applying it less frequently. The courts

seem to be more interested in scrutinizing the evidence

so as to determine the intentions of the parties.

CONSRTUCTIVE TRUST

Must prove that there was a common intention or agreement

between the nominal owner and the claimant that the

claimant should have a share in the property.

This common intention may be expressed or implied.

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The claimant must have acted to his detriment in relying

on this common intention, i.e. the conduct must be such

that the claimant could not be reasonably expected to

embark on unless she was to have an interest.

Lloyds Bank Plc. v. Rosset [1991] H.L

Property (matrimonial home) acquired in H's name - no

expressed agreement - W took on renovation work, decorating

almost daily - W made no financial contribution either to

the purchase price or to the cost of renovation - Bank

claims possession because of H's non payment of loan - H did

not resist the claim but w did claiming that she had a

beneficial interest in the property

Held : W's renovation was insufficient to justify drawing an

inference of a common intention that she should have a

beneficial interest in it.

The court stated :

The fundamental question which must always be resolved

is, was there at any time prior to acquisition, or

exceptionally at some later date, been any agreement,

arrangement or understanding reached between them that

the property is to be shared beneficially.

This agreement or arrangement must be independent of any

inference which can be drawn from the conduct of the

parties in the course of sharing the house as their home

and managing their joint affairs.

This agreement or arrangement to share can only be based

on evidence of expressed discussions between the parties,

however imperfectly remembered and however imprecise

their terms may have been.

Once a finding to this effect is made the claimant must

show that he or she acted to his or her detriment or

significantly altered his or her position on reliance on

the agreement.

22

An expressed agreement may be derived from a situation

where direct contributions are made to the purchase price

by the claimant

This direct financial contribution may be made initially

or by payment of mortgage instalments.

What is evident from this case is that nothing short of

direct contributions to the purchase by the non owning

partner will suffice.

Pettitt v. Pettitt [1970] H.L

Lord Reid stated with regard to the H that "…he should not

be entitled to a share in the house simply by doing the '

do-it-yourself' jobs which H's often do" and with regard to

the wife he stated that " the W does not get a share in the

house simply because she calls the walls or works in the

garden or helps her husband with the painting or decorating.

These are the sort of things which a wife does for the

benefit of the family without altering the title to, or

interest in the property. BUT if a spouse provides, with the

assent of the spouse who owns the house, improvements of a

capital or non recurring nature, I do not think that it is

necessary to prove an agreement before that spouse can

acquire any right

Gissing v. Gissing [1971] H.L

W spent money on furniture and clothes for the children -

Court did not see this as sufficient to refer to a common

intention - The sole beneficial therefore belonged to H.

BUT NOTE Burns v. Burns Court stated that indirect

contribution will give rise to a beneficial interest in

favour of the wife or mistress e.g. where payment of

household expenses leaves H's salary free to pay the

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mortgage installments or where W's unpaid work in the family

business enables H to accumulate money which is used to

acquire the property. But work such as looking after the

children does not count.

NOTE HOWEVER, Sharma J in Harrinsrine v. Aziz [1982] in

referring to the unique position in common law marriages in

the c'bbean stated that where W out of her earning look

after the children and the household and other expenses,

this constitutes prima facie evidence of a common intention

that she would have a beneficial interest in the property

which is solely in the name of the common law H.

Grant v. Edwards [1986]

Female partner was told by male partner that the only reason

for not acquiring the property in joint names was to avoid

prejudicing her since was involved in divorce proceedings.

Court stated that these facts raise a clear inference that

there was an understanding between the parties, or a common

intention that the female was to have some sort of

proprietary interest in the house; otherwise no excuse for

not putting her name on the title would have been needed.

Cracknell v. Cracknell [1971] C.A

House bought conveyed in the joint names of H and W -

Purchase price derived from mortgage and their pooled

savings - W left H - H continued to pay mortgage

installments and other outings.

Held : Although the conduct of the parties which led to

separation was not relevant in determining their respective

rights in the property, the court may take such conduct into

consideration in adjusting payments made after separation.

-H's continued payment of the mortgage installments

increased the value of the house, therefore he was entitled

by reason of her voluntary departure, to deduct from her

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share of the equity, half the mortgage installments paid by

him, without giving her credit for his continued use and

occupation of the premises.

National Provisional Bank v. Bishop [1965]

Unless money is pooled for a particular purpose, if either

party draws money from the joint account, whatever is bought

is for the individual solely. The other party does not have

a share in it - it is not for joint ownership.

Azan v. Azan (1987)

W and H had joint account - H was the one who put the money

into the account - money was drawn to purchase shares in a

company - W said she had an interest in it - Court said no

since her name was put there just so she could draw from the

account - the account was not for a special purpose.

Jones v. Maynard

H used the words "our savings" and this put the special

purpose title on it -Investments they made in joint names

therefore remained equally to both. - H had stated that

money in bank and investments were to be our savings.

Samson v. Samson

There was no principle of law that wedding gifts were joint

interest - If H's father gives gifts he must state that the

gift was for both for them to have joint interest - This

depends therefore on the intention of the donor.

Hesletine v. Hesletine

W had made most of the financial contributions but the title

was in H's name for convenience. PRINCIPLE

Where it would be inequitable that one spouse should have

sole interest in property because his name is on the title,

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The court will apply trust principles to divide the

property.

TUTORIAL SHEET # 8 - CHILDREN GUARDIANSHIP & CUSTODY

Governed by the Children (Guardianship and Custody) Act

The first and paramount consideration is the welfare of

the child

This takes precedence over parental rights.

Mothers are now given the same rights and authority of

fathers

Finlayson v. Matthews (1971) C.A

Application by mother to Sup. Ct. for custody and

maintenance of illegitimate child. Argued on behalf of

father that child being illegitimate, the action should not

have been brought under the Children Guardianship and

Custody Act since the child was filius nullius and custody

resided in the mother. The court dismissed the order. On

appeal it was argued that the said Act related to both

legitimate and illegitimate children.

Held : - The term mother in the Act includes mother of an

illegitimate child.

- Father does not include putative father.

This case recognizes the principle that the mother of an

illegitimate child could apply for custody.

The mother of an illegitimate child has at least a prima

facie right to custody of child at least until the child was

18 years.

Re C J (an infant) [1979]

Illegitimate child - application for order of custody by

mother - meaning of parent

Does the term mother in s. 7 includes an unmarried mother .

The court argued that since the term parent in the Infant

Act includes an unmarried mother in respect of her

illegitimate child, then it would be illogical to limit the

26

operation of S.7 of the Custody act to application of

mothers in respect of legitimate children. Therefore court

has jurisdiction under S. 7 of that Act to make an order for

custody of an illegitimate child upon applicationof the

child's

mother.

Even where conduct of spouse is responsible for the

breakdown of the marriage the court still has to first

consider the welfare of the child.

Allen v. Allen [1948] C.A

Divorce granted to H - W committed adultery - Child taken

from mother and care and custody given to Father - Judge

gave consideration to the moral of the child and took the

view that the mother once committing adultery was likely to

do it again.

Held on appeal : Judge had not applied the proper test. The

welfare of the child, both moral and physical, were the

paramount consideration.

Clarke v. Carey [1971] C.A

Custody application by mother of illegitimate children -

children in de facto custody of father - children were well

cared for - went to school and Sunday school regularly -

mother became engaged and wanted custody - prospects of a

stable home disappeared when marriage did not take place.

Held :Custody to be awarded to father. If it were given to

the mother then the children would be removed from a stable,

comfortable and suitable home in which their material and

spiritual needs were satisfactorily provided for to a home

where there was no adequate accommodation and no comfortable

life for them.

The court was not interested in balancing the wealth of the

father against the poverty of the mother.

27

The court relied on Re MacGrath and R v. Gyngall which

stated that the dominant consideration was the welfare of

the child and that the court had to consider the whole of

the circumstances of the case.

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