DEBORAH J LANG v PETER W. LANG et al

IilOOl VERNON COOPER ,."'\ J;~. O~2f;4 12: 27 tt451S993 , ,. ," ' . I' i -.. j ... " ~. m 'l'liB HIGH CO"ORT OF JUS'.t'l:Cli: (C:rvrr.) A.D. 1994 Suit !fo.. 30 of 1991 ., BJr.:!."tiEEN: DEBORAH J _ LANG Petitioner and Respondent aon.sclida.teCl nth Suit B~. 420 of 1994 DEBORAH J. LANG Pla.intiff v r•. 1. PETER W LANG & 2.. SUNSET MOTORS LTD Defendants APPEAltUl'CBS: Mr. V. Cooper for the Petitioner and Pla.intiff lIr. A. KoHamara for the lleapondent and Def'endaDts 1994: November 14; December 7. JUDGMENT The Parties were married OIl December 22r 1979 and on July 14/ 1.992 the wife obtaLqea a decree nisi for divorce. On March 25, ~9.93 the Parties obtained a consent order in respect t - 09'112 . 94 12: 28 #4518993 VERNON COOPER • ~OO% " , of ancillary proceedings~ The order is as follows:­ f,.. nrr IS BERES'!' OIIDER.E!l BY COliSENT: 1+ That the Respondent will p~ to the Petitioner the total sum of $21 750 ~ 00 per month for the maintenance and support of the , children of the family which amount includes payment for the childrems' insurance policies which are to be' paid by the Petitioner.

2.The Respondent will increase the said sum of $2,750.00 by a.n.y increase iIl the amount used for school fees for the children plus the cost of school books . .::.

3.This amount will also be increased by such increased percentage as the cost or living in..d.l!:x. of the St. Lucia Gazette shall indicate.

4.The parties shall have j oint custody of the children of the family namely: (~) Joanna Deborah Lang (2) Jonathan Peter William Lang {3} Jason Edward Denys Lang with· the said children being in the care and control and residing with the Petitioner, and the Respondent having reasonable access at all times . ... S. The community property situated at Union in the Quarter of o9/i% '94 12: 43 'ft4518993 i. VERNON COOPER . ~OZ7 f : Castries and registered as B~ook 1050B Parcel 540 will remain 1/;1J. ·i the joint property of the Petitioner and the Respon~t with J t". the Petitioner baving the use thereof for herself and the chi~dren of the family until such time as the last of the sa.id children shall reach the a.ge of 18 years or complete a course of further education.

6.There shall be no order as to costs. n About fifteen months la.ter the. Petitioner I by a new solicitor, filed a summons for variation of the consent order. That summons was supported by a lengthy affidavit filed on June 14: I 1994. The ; effect of the affidavit was to allege that the -consent order did ~ not take into consideration her community interest in the shares of Suneet Motors Limited~ The :i?etitioner filed a supplementary affidavit .on June 24, 1994 wherein it is alleged that between ~989 and ~99~ she worked with Sunset Motors Limited and drew a monthly salary of $2,000 at first and later it was increased to $2,S~O. On July 15, 1994 tbe Respondent filed an a£fidavit in reply ~ which he stated that the applic~tion by the Petitioner to vary the consent order is without basis and where he went on to explain that the shares in the company are his separate property. He went on to give the history of his acquisitions which began with a lease of land from one Ignatius Augustin to himself on May 7, 1979 about seven m.onths before he got married to the Petitioner. The • • I 09/12 '94 12:29 U4U8993 VERNON COOPER . iii 003 I· , I ! Petitioner filed another lengthy affidavit in answer in which she j .1 alleged that whether the Court rules that the shares are separate .1 'II: s" or community property the provisions of the Divorce Act apply and she is.entitled to an order under the Act in respect of the shares of SUnset Motors Limited. On the said June 14~ 1994 the Plaintiff filed a writ of summons against Peter Lang and Sunset Motors Limited praying for injunctions against the Defendants restraining them from concealing r dealing withr transferring or in any way keeping away from the Court or the Plaintiff any documents whatsoever to defraud the Plaintiff of her just rights. The Plaintiff also sought an order to compel the Defendants to produce certain documents in Court. This was indeed a strange suit for it seems that it was meant to assist the Petitioner in her application for variation. So the High Court suit was subsidiary to the Chamber matter. The Defendants entered appearance on June 27. 1994. The Plaintiff then filed documents for an interim injunction as well as a list of exhibits and the Defendants filed an affidavit in reply on July 4:, 1.994. The application for injunction never really got off the ground and on October 5, 1..9.94 in Chambers it was ordered that both matters be consolidated. \ 09/12 '94 12:29 tt4518993 VERNON COOPER • IaI004 ·'. Besides the affidavit evidence already referred to the Respondent called Martha Edmunds of Barclays Bank: to produce a document which he referred to in his affidavit. Deborah Lang was cross-examined on her affidavit in support of the summons for variation and was re-examined by Mr. COoper. Peter Lang gave further evidence of how he acquired the shares ~ Sunset Motors Limited and he was cross-examined by Mr. Cooper and then re-examined by Mr. Me Namara. In his ad.dress Mr. Me !tamara submitted that there are three aspects which he needed to deal with namely: (a) The effect of the consent order; (b) The shares in Sunset Motors - whether they are separate or community property; (c) In any event the Petitioner"s entitlement to a portion of the shares in Sunset Motors Limitedr under sections 24 and 25 of the Divorce Act 1973. I am impressed with this orderly presentation and I wish to follow .that route in coming to my conclusion though not in the order put forward. I shall now consider whether the shares in Sunset Motors Limited are the separate property of Peter Lang or the community property 09)1% '94 12: 30 '8'4518993 VERNON COOPER . 141005 ·". of the Parties. !n his closing address learned Counsel for the Petitioner asked the. Court to award the Petitioner her share of the community property. Counsel who met to discuss the matter and who later ~rew up the terms of the consent ord&r seemed to be of the view that only the matrimonial home situated at Union was c:oMmWlity property and this no doubt was the reason for omitting the shares from the consent order. In his affidavit Peter Lang traced the history of the acquisition of the shares. Appended to the affidavit were certain relevant ex.bibits. On May 7, 1.979 Lang entered into a ten year lease/purchase " agreement with Ignatius Augustin in respect of a porti.on of land at Marisule. containing 12 t 66'2.5 square feet of land. He was not then married. On the strength of that lease/purcha.se agreement he seemed to have obtained a loan of $50,000 from Barclays Bank on April 6, "1979 to assist him in the construction of a building on the land. Then in August 1979 he entered into a lease with Plantrac {St. Lucia} Ltd whereby he leased the building to the company. Sunset Motors Limited was registered on September ~Sr 1.985. {I' \ '. osi12 '94 12:30 '0"4518993 VERNON COOPER . 141008 On February 3, ~986 Ingnatius Augustin executed a deed of sale of the said leased land to Sunset Mocors Limited, Peter william Lang intervening I and it is important to note that the consideration was/ only $17,000. So although 1t is true the property passed to Lang or his agent after the marriage the history of the transactions shows that Lang was for all practical purposes the owner of the building before that date. The leased land and the building was the basis from which all the Respondent's investments flowed and if tP..at was his property before the celebration of the marriage it is not an unreasonable view to hold that the shares in Sunset Motors Limited are his separate property. If instead of the shares in SUnset Motors Limited the land and building were transferred to Lang they could hardly be said to have been acquired after the marriage. In a true sense Peter Lang had possessed the building and land on the day when the marriage was 'solemnized. I am of the view that the shares in Sunset Motors Li~ted are the separate property of the Respondent. 09112 .94 12: .31 'D'4518993 VERNON COOPER III 007 \ /" .. But as I have indicated the matter does not end here. The fact - 1; that they are his separate property does not remove it from the scope of the family assets which as I shall describe below include property acquired by one spouse. In my judgment the shares in Sunset Motors Limited as also the ( matrimonial homer were family assets which had to be reallocated when the ID..arriage ended. !.teamed Counsel for the Respondent referred to suj.t No. D49 of 1984 between FrTZ MARCELLjR V ANNE M1RCELL~ decided in this Court on June 1Q r 1.987. In that case the Court ordered that a Castries property.. which admittedly would be the community property of the .spouses I should go to the wife exercising its powers under sections 24 and 25 of the Divorce Act of 1973. Counsel sought to distinguish that case by submitting that in the Marcellin case the Court ordered conmnmity property to be transferred to the wife but in the present case the shares are the separate property of the Respondent .. That submission cannot be entertained. Looked at closelyz in HARCELLIN'the Court was ordering the husband to give up what :under the community would be his share of the home. Further in the IIlany cases such as WATCH'l'EL where the Court exercises its powers Wlder sections 24 end 2S of the Divorce. Act there is no notion of --1""'-:-.- oeil2 '94 12:31 U'4518993 VERNON COOPER . IlJ008 separate and community property. Section 4S ot the Divorce Act 't \ would seem to give the Court power to order the owner of separate property to make provision £or the other party where the Court is satisfied that the other party made a substantial contribution to the improvement or preservation of such property. In her notice of application for an ancillary relief filed on January 18, 1993 the ~etitioner asked for maintenance for herself and a property order in respect of the matrimonial bome and shares in Sunset Motors Limited. Section 24 of the D.ivorce Act 1973 empowers the Court to make. orders for transfer and settle~ent of property and sect1Qn 25 sets .. out certain matters to which the Court is to have regard in deciding ~hat orders to make under sections 22 and 24. Section 22 empowers the Court to make financial provisions for a party to the marriage. Section 25(l} states:­ ·Zt sba11 be the duty of the Court in deciding whether to exercise i.ts power under sections 22/1 23 or 24 ill. re1at.i.0I1 to a party to the marriage and, if so, in what maz:mer, to have regard to all the ciro.UlltStances of the case illcluainsr the fo11ow:i.;gg matters r that is to sa:y~­ . , ", 09/12 '94 12:32 tf4518993 VERNON COOPER • 1;1009 ' (a.) the i..n.c0Ia.e.. ea.rning capaci.ty, property and other finaDoial resources which each of the pa::ties to the marriage has or 1s l~ely to have ~ the foreseeable future; (b) the financial needs, obligations and r.spOl:Lsibi~itie.s whic:b. each of the parties to the marriage has or is likely to have ~ ehe foreseeable future; {c} the stB.l'ldard. of living enjoyed by t:he fami.1y before the brei:tkd.owz::L of the marri.age; Cd} the. age of eaeh pa.:r:ty to the marriage and duration of the marriage; .. (e) any physical or lIleDtal di rulhi.~ity of either of the parties to the marriagei (f) contributions made by ea.ch of the parties to the welfare of the fa.m.ily including any eo:ntril:mtion made by l.cok..it.lg­ after the home or oaring .for the fa:m.i.l.y; (g) • • • • • • • • • • - * • • • • • • • • • and so to exercise those powers as to place the parties, in so far as practicable, and having regard to their conduct, just to do so, "in the financial position in which they would have been if the or her financial obligations and responsibilities towards the Goitz '04 12:33 U4518993 VERNON COOPER . taJOI0 , marriage had not broken down and each had properly discharged bis other. n Under section 25 (1) the Court is given a wide discretion in the exercise of its powers to tIli!lke financial provisions orders or orders for transfer and settlement of property and the list enumerated above is not at all exclusive. The Court must have 'regard'to all the circumstance of the particular case. The consent order did not provide for any periodical 'or lump sum payments as could have been ordered under section 22 of the Divorce .Act . .. The Petitioner states that she is presently employed on a commission basis and she earns an. average of $3 t 000 a month and the consent order provides a sum of $2/750 for the maintenance of the three children which amount is to be increased should there be' any increase in school fees or school books or increase in the cost of .living' index in St ~ Lucia. The Petitioner was given the use of the matrimonial home for herself and the children until such time as the last of the three children shall reac.h the age of 18 years or complete a course of further education. The Respondent stated that he was the Managing director of Sunset Motors Limited and owns 371,979 shares in that companYr the other 09/12 '94 12:33 'l!4518993 VERNON COOPER . IaJOll I , ,I .;t I ' I ,of three million dollars and went onto suggest that they are in he admitted that the assets of the company were presently in excess ... Ii ~ j I "­ share belonging to his mother, Margo Lang. Under cross-examination I ... • I houses and vehicles. It seems to me t..l:J.at in the foreseeable future the vicinity of six and a half million dollars including land, I the Petitioner will continue to earn her living as outlined above and the company will continue to do well. The Respo~dent stated that although the Petitioner worked while they were married she made no contribution to the maintenance of the family from her salary and he paid for food, maid, water z electricity and telephone. So it ~e~~s the Petitioner now has to ~ meet these expenses . .. The Petitioner is 32 years of age and the Respondent is 7 years older and they were married for about l2 to 13 years. The Petitioner l s romance started from an early age. She got married at ~7 and she actually got to know the Respondent when .she was between 15 and 16 and was then at school. Not unexpectedly she got pregnant while she was going to school and was unable to complete her secondary education at the Convent. I note there is no physical or mental disability of either of the Parties to the marriage. It seems as though the Petitioner during the marriage did not spend 0911.2 '94 12:34 tt4518993 VERNON COOPER • III012 .... the amount of time that a wife should in the home. In fact the Respondent described her as a ·party anjEsl·. He said frequently he had to stay home to care the children while the Petitioner was out and on one occasion the Petitioner returned home at day break. So I find the Respondent made a greater contribution to the welfare of the family and even now the children seem quite comfortably with him and spend a lot of time at his home. He stated, and that was not challenged, that the oldest boy Jonathan has moved out of the matrimonial home and resides with him and for the past three weeks before the date of hearing his daughter Joanna had been spending every night at his home. Even Jason, the YOll.!l.gsst child, had been spending the nights with the Respondent_ .. • As far as the contribution to the development of the company is concerned' I have no doubt that the Respondent was the dominant. force. It was his business acumen which led to the success of the company. The Petitioner worked with the company for a. time between 1989 and 199~ at a monthly salat:y of $2 1 000 which was later increased to $2,500 but I believe her when she said she worked 'extra hours la.te at nights in excess of what a normal employee would do and that she even washed motor cars. I rej act the at.tempt of learned Counsel for the Respondent to quantify the half share interest of the Respondent to the Petitioner while the Petitioner lives in the matrimonial home with • the children. In KOSAR"S case the wife was given a home in which 09/12 .94 12: 34 '6'4518993 VERNON COOPER • i1013 t .' she would live and take care of the children. The petitioner .. cannot be givan half of a home for the children and the Respondent f ""~• to be given or credited with the value of the other half. I have regard to the fact that the Respondent is at the moment building his home. The Petitioner had asked for maintenance but this was not specifically addressed in the consent order. Rather than order maintenance I think I would award a lump sum thus adopting the clean break principle as I said in suit D43 of 1993 CECILE JOSID V ANTOINE JOSEPB: decided on November 9, 1.994. In that case I also said that ancillary matters could not be decided purely on the law of separation and connmmity property & Pecause of the enactment of the Divorce Act Ho. 2 of 1973. In all the circumstances of this case if I had the jurisdiction I would order that the consent order should be varied to provide a large capital and/or financial provision for the Petitioner. Learned COunsel for the Petitioner was quite concerned that after the last child had attained 18 years in the next ten years or so the Petitioner would be thrown out of th.e matrimonial home wi:thout a roof o~er her head. And learned Counsel for the Respondeqt in the very last statement of bis closing address was asking that the Petitioner's application • ., ., 09/12 '94 12:35 U4518993 VERNON COOPER • ~014 be dismissed but in the event that the Court were minded to make any adjustment it should look at the community property which according.to the consent order is the matrimonial home. I would have made an order which would allay the fears of Mr. Cooper while taking the hint from Mr. Me Namara. I have already found that the Petiti9ner though earning a salary from her employment at Sunset Motors Limited did work in excesS of what a normal lI10rker would be called upon to do and this 'WaS at t!he time the business was in its infancy. Learned Counsel for the Respondent submitted that the Court should not vary the consent order because from the start the question of the shares was referred to in the Petitioner's affidavit and the Respondent in bis affidavit had denied that she bad an interest in them and the issue became more specific in letters exchanged by the solicitors of the Parties on March 17 and 19 of 1993. He said negotiations went on where documents of title were examined and both parties had legal advice and were fully cognizant of the facts. Counsel referred to passages from the 14th edition of RAYDKN on Divorce and to the case of BDGA:R. V BDGAR {:J.980} 3 A.BR 887 c.,A.. OSi1% '94 12:36 '0'4518993 VERNON COOPER • IdJ015 , ' In his closing address learned Counsel for the Petitioner submitted that no mention of the Divorce Act 1973 was made by the solicitors "who drew up the consent order. In EDGAR V EDGAR the parties had entered into a separation deed even though the wife's lawyers had advised her that she could obtain a better settlement in divorce proceedings. under the separation deed executed on April 1, 1976 the wife obtained a house where she "could live with the children and also payment to her of ~6,000 per annum and further the husband had to make periodical payments for the children. In accordance with the negot"iated agreement between the parties the deed contained a clause whereby the wife agreed that if she obtained a divorce she would not cla.im & -lump sum or property transfer orders~ The husband fully carried out his obligations under the deed. In 1979 after obtaining a decree of divorce the wife proceeded with an application tor ancillary relief in which she applied for, inter alia, a lump sum payment under section 23 of the Matrimonial Causes Act, ~973. The Judge who heard the matter decided not to give effect to the agreement "and ordered the husband to pay a lump sum of ~70,OOO~ The husband appealed and the court of Appeal dismissed the wife' 5 application for a lump sum. and allowed the husband's appeal." The Court of Appeal held that the Court I when exercising the .discretion given to it under section 23 (J.) of the ~973 Act to order lump sum payment, -was required to give effect to a. prior -, 09/12 '94 12:36 U4518993 VERNON COOPER • IgJ018 ! .". ," agreement by the wife not to claim a lump sum by treating that r ..iI I '\i. agreement as conduct of the parties which was to be taken into r ~ account when considering under section 25{1) of that Act ~hat was just between the parties in all the circumstances. The Court went on further to sta.te that in deciding the weight to be given to the prior agreement in order to do justice between the partiesl,the Court had to take into account, inter alia, the parties' conduct ,leading up to the agreement I their subsequent conduct r and the circumstances surrounding the tttaking of the agreement such as undue pressure by one party on the others exploitation by one party of a dominant positionr the inadequate knowledge of one party, and any unforeseen or overlooked change in the circumstances existing at the date of the agreement. However, the Court said that disparity .. of ba.rgai:ning power between the parties was not enough of itself to justify the Court in ignoring the terms of the deed. At page 893 letter (oJ ORMROD L. J. stated that inadequate knowledge and possibly bad legal advice are relevant to the question of justice between the parties. When he gave evidence in chief Peter Lang spoke of a meeting in the precincts of the Court between himself and the Petitioner and their lawyers which took place before the hearing of the ancillary proceedings which lasted in excess of an hour and as a result of that meeting the consent order was drawn up . • 09/1.2 '94 12: 37 'ft4518993 VERNON COOPER • fdI017 This is a good indication of the haste with which the agreement .a I ~as entered into. In ~ negotiations took place for several .T ....• months. When aile looks at the consent order there is no specific provision for the Petitioner save that while the children are below the age of majority she would be enjoying the use of the matrimonial home. I agree with Mr. Cooper that there seems to have been no consideration of the Divorce .Aot 1.973 whatsoever. It seems to me that the discussions were limited to the law of separate and community property. Section 53 of the Divorce Act states:­ -Where a conflict exists between this Act and any other law the provisions of this Act shall prevail-. Parliament did not enact that provision by chance. Cases like ~TCBBL V ~~I (1973) 1 AER 82.9 CA spoke of family assets, not separate and community property. The te:r::m is defined at page 83a of WATCEEL to refer to things acquired by one or other or both parties with ~he intention that they should be continuing provision for them and their children during their joint lives and used for the benefit of the family as a whole. A similar definit.ion is given at page 718 of the t.we1fth edition of RAmEN on Divorce. Although I reject the v~ew of learned Counsel for the Petitioner vhen he emphasizes the wealth of the Petitioner as a ground for interfering with the consent order, because neither of the Parties • IS Otll12 '94 12: 37 tt4518993 VERNON COOPER • 141018 nor their solicitors seemed to have. regard to the Divorce Act justice would require me to relieve the Petitioner from the effect <.i of the consent order. But have I the jurisdiction to do so? I . founded upon section 29 of the Divorce Act» Neither of the Parties ~he Petitioner's summons to vary the consent order could only be II . made any reference to that section. I ! ! Section 29(1} states:- IIWhere the Court has made an order to which' this section appl.:les, thm:L, sUbject to the provisions of this section, the Court shall have power to vary or discharge the order or to suspend a;u.y prov:i..sicm. thereof ~orar.ily and to revive the operation of aDY provision so suspeDded-. Section 29(2) states that the section applies to orders made under various sections but these do not include orders made under section 2~ for the transfer of property or the settlement of property on the granting of a decree of divorce. In his closing address Mr. Cooper referred to DA SJ:Lvi V DA SILD Civil Appeal No. 10 of 1991 and to a sub-section similar to sub­ section {7} of our Act where it states that the sub-section gives a wiCle discretion to the Court in the exercise of its powers conferred by the section. But unless the particular order falls within the. scope of the section it does not seem to assist the 09/12 ·94 12: 38 '8'4518993 VERNON COOPER • la)019 Petitioner. f ... In Da S11vai s case there was a consent order that a company transfer a. property to the wife, the Respondent in the case. There was legislation eropowering the Court to vary or discharge orders on the lines of section 29 of our Act. Byron. J ..A .. said it was section 40 of the St. Vincent legislation. SUb-section {2} of section 40 stated the orders to which the section applied and that included an order for a settlement of property under section 32(1} (b) of the legislation. As he said at page 5 section 32(~) (b) provides' for "it. settlement of such property as lIUii.y be specified", beiu.g property to which a. party to the :marriage is so entitleci, • being made to the satisfaotion of the C'.ourt for the benefit of the other party to the marriage- .. He went on to say that the statutory provisions ~n section 40 do not leave any room for doubt that the Court had power to vary the order in Da Silva's case. Here lies the difference with the St. Lucia legislation. Note that section 32 (1.) (b) of the St. Vincent legislation is strik;ingly similar to section 24 {b} of the St. Lucia legislation. Section 24 of the latter legislation is the one which provides for orders for transfer and settlement of prope-rty. . Sub-section (2) of section 29 states the orders which are capable .. 09/12 '94 12:39 '0'4518993 VERNON COOPER • 141020 of variation under sub-section (1). · r • A property order such as the one made by consent in this case in respect of the matrimonial home could properly be made J.lD.der section 24(a) or section 24(b) of the Divorce Act on the gran~ing of a decree of divorce but an order granted under section 24 (a) is not within the scope of section 29 {2); and although an order under section 24(b) is within the scope of section 29(2) it is only So when the ordar is made on or after the grant of a. decree of judicial separation. So unlike the position in Da Silva it cannot be said that the statutory provisions of sectio.'1'l 29 do not leave any room for doubt • that the Court has power to vary the order in this case. It appears that lily hands are tied. I might have been tempted to make a financial provision order in favour of the wife under section 22 but section 29 (~) states that variation applies where "the Court has made an order to which the section appl~es and the Court did not make a financial provision order for the Petitioner under the consent order. And if I were tempted to make a better order for the wife in respect of the matrimonial home my jurisdiction is limited by section 29(2). Counsel for the Petitioner also referred to the case of B (SC) v B (BA) (1970) 1 AER 913 _ This case emphasized that the Court had the • 09/12 '94 12:39 tt4518993 VERNON COOPER • IaIO%l widest possible powers under the MC_A 1965, section 31, to vary .... orders for maintenance and the COurt was not precluded from entertaining a husband-A" 5 application to vary maintenance orders made by consent on the ground that they were based on a mistake as to his means and a mistake as to the amount of his liabi~ity to income tax. This decision must be subject to the limitation expressed in the section itself which empowers variation. And it dealt with maintenance orders and not a property order as in the Da S.i1va case and the present one lmder consideration. '" What I have been saying above is borne out by a passage at page 64S " of the 14th edition of Rayden on Divorce. It deals with varia.tion of orders and 1ists which orders may be varied 'The passage is as L follows:­ 1t142 .. What orders may be varied. Aspects of variation have been dealt with in the individual sections of this chapter. The following orders, once. made I are capable of being varied. .or discharged by the court all.d any provision in such an order may be suspended and, if suspended, may be revived: (i) an order for maintenance pending suit for a sI?ouse on the filing of a petition for divorces nullity or judicial .. separation and any interim order for maintenance; 'D'4518993 VERNON COOPER iii 022 09/12 '94 12:40 . '. {ii} an order for periodical payments to be made or secured .for a sponse or former spouse on the granting of a decree. of divorce, nullity or judicial separation; (iii) any order provi.ding for payment of a lump sum. by instalments whether in the case of a decree of divorce, nUllity or judicial separation or failure to maintain; (iv) an order (which may be made at any time before or after the granting of a decree or if the proceedings are dismissed after the begbL~jng of the trial, either then or within a reasonable time thereafter) for periodical payments to be made or secured to or for a child of the family; • (v) an order as to the instalments by which a lump sum for a child is to be paid (the time when such an order may be made is as in (iv) above); (vi) an order for the settlement of property for the benefit of a spouse and/or children of the family or an order varying a settlement for the benefit of the' spouses and/or children of the family or extinguishing or reducing the interest of either spouse in such settlement • where such an order is made after the granting of a decree of judicial separation and there are subsequent • 09/12 '94 12:40 '0'4518993 VERNON COOPER • fl]023 proceedings for rescission of that decree or for " .. dissolution of the marriage~. Although what is stated above is releYant to section 31 of the English legislation it is interesting to note that, like our section 29, the order for settlement of property is related to a decree of judicial separation only_ The case of LEWIS v LEWIS ~977 3 AER 992 is another case which indicates the wide power of the Court when it acts under the equivalent of section 29 of our act to "tUy or discharge a periodical payment order but as I said earlier that does not assist the Petitioner unless she can put herself within section 29(21 . .. In the caae of HZNTQN V HINTON 1979 A.C. 593 the Kouse of Lords held that on its true construction section 23 (1) of the ~t (our section 22{l) equivalent) did not empower the Court to make from time to time a second or subsequent maintenance order after an earlier application had been dismissed and, although the consent orders dealt with other matters besides the diSInissal of the wife" s original application for periodical payments; they had the effect of discharging her claim in respect of them and effecting a clean break from the marriage in accordance with public policy. Lord Scarman stated at page 608" letter E: IIOnee au a.pp~.ication has belii!D. deal.t with upon .its·meritsl the 09112 '94 12:41 'ft4518903 VERNON COOPER . '. IiJO%4 , . t ' I , it. Court has no :future jurisdiction save where there i.e a continuing order capable of variatiOl:l. or discha.rge under StiH:!tJ.on 31 of the Act-_ The Hong kong case of de LASALA V de LASALA 1979 2 ABa 1146 P.C followed Minton. This also related to financial provisions in a consent order. There is a. relevant passage from the speech of LQrd Dip~ock beginning at the last paragraph of page 1153 as folloWB:~ D'Under the lfatrimDma.l causes Ordinance which was in force in 1970, the COurt had. power to make two different types of orders malting fillallC!i.al provisiOI;ls for a wife; (a) periodi.cal f• '" payme!n.ts, both secured and unsecured; (b) a lUDP S1,!ID. pa.:yment. Orders of the former type oould be varied or discharged .by the Court on subsequent application. by ei-ther spouse. Lump SlIlWJ. orders were once for all; they coul,d :a.ot subsequently be vari.ed. There was r however" at that time no power in the Court to make an order for ~e transfer of property between ~uses or for the benefit of a spouse- The power to ~e transfer of property o:r:dars and setUement o:r::Uers was conferred on the Court in 1972 by section 6 of the Hatrimon:i a:L Proceedings and Property Ordinance. Like lump sam payments they are once for a.l~ orderS; thex-e :is no pcwe:r' to vary them. on subsequeu.t appl.icati.on- • .. • The case of ~D v TBJlAI'l'E 1981 2 ABR. 789 CIA rela.ted· to a c U4618993 , . VEftNON COOPER. . E £1 II '5 11 F IJ b Ii i\JI • !til025 property order. On April 3 a I 1979 the Registrar made a consent S order which included a term that the husband would transfer his ~ interest in the matrimonial home to the wife if he returned the children fx-om Australia to England ana thereafter the wife's other applications ::Eor ancillary relief would be dismissed from the date of the conveyance. '!'he wife returned the children to England but the husband took some time hefore he could convey the house so the wife returned the children to AUstralia where they remained . .In August 1979 the husband a.pplied to the Registra.r to vary the consent order. The wife cross - a.pplied. to enforce the transfer of • the husband' a interest. On March 12, 1.980 the Registrar dismissed. the husband's application and ordered him to execute the transfer. The husband appealed to the Judge. The Judge expressed doubts whether there could be an appeal from a consent order aDd determined the mateer under the liberty to app~y reserved in the consent order. He allowed the husband's appeal from that part of I the Registrar's order directing him to complete the conveyance of his interest in the house. However he diSmissed the hUSband's .appeal. a.gainst the Registrar's refU$al to va h ry t e consent order. .. Be then went on to make a financial proviSion orda . the wife who did not consent r ~n fa~ f to tha.t Coq..... ...S9. !'he ·f W~ e appealed. .. 09/12 '94 12:42 U4518993 VERNON COOPER • I'aIOZ6 , " iJo The Court of Appeal held that the Judge was right to dismiss the • husband's appeal against the Registrar's order refusing to vary the consent order a:na. he was right to allow the husband' !ill appeal against the Registrar's order that he execute the conveyance., . The c~ of Appeal held also that the Judge had jurisdiction to hear the appeal from 'the consent order in the circumstances of the case as there was fresh evidence and he was entitled to make new ancillary relief in favour of a wife despite her refusal to ; consent. At page 795 letter (a) ORHROD L.J. states the reason why the Judge it was right to dismiss the husband's appeal in respect of the variation of the consent order. He said:­ f * "The dismissal of the husband's appeal from the ~egistrarls order dismissing his application to vary the consent order of 30th April 1979 was right. The crcier in queatiOJ:l. was a. final order in the sense that it was not an order within seoti.on 31(2) of the 1973 Act (Ou. equival~t in section 29(2)}, so tbat there was no jurisdiction eo vary..... It seems that I am constrained by authority to dismiss the Petitioner's summons to vary the property order made by consent on. March 2S I 1993. There shall be DO order as to costs . .

Suit No. 30 of 1991 & 420 of 1994 Matthew, J. Delivered: 07/12/94