Greenaway v Greenaway

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Redhead, J.
• Judgment Date: 31 March 1993
• Neutral Citation: MS 1993 HC 6
• Docket Number: No. 48 of 1993
• Date: 31 March 1993

Greenaway

and

Greenaway

Redhead, J.

No. 48 of 1993

High Court/Court of Appeal

Family law - Matrimonial property — Parcel of land bought by wife before marriage — Land later registered in both names — After marriage both parties obtained loans for construction of matrimonial home — Mortgage obtained to extend matrimonial home — Mortgage in name of both parties separately in specific amounts — Husband neglected to make monthly repayments — Mortgagees demanded full payment of husband's liability — Whether land on which home stands owned solely by wife — Ratio for division of property.

1 JUDGMENT OF THE COURT: This is an application brought by the plaintiff by way of Originating Motion filed on 8 ^th March, 1993 seeking the determination of the court in the following motions:–

• “1. The property as the Matrimonial home in St. John'S and described as Block 14/14 Parcel 52, is owned by the plaintiff absolutely, or such Order as to ownership thereof as may be just;

• 2. That the property be sold, and the proceeds for sale be applied first in the discharge of all money and costs due to Barclays Bank PLC, the mortgagees of the property, in respect of a demand mortgage dated 16 ^th July, 1991 executed by both the plaintiff and the defendant Registration No. 1128/91 and filed at the Land Registry on 31 ^st July, 1991 and that the balance be divided in proportion to the respective interests of the plaintiff and the defendant, or otherwise as may be just.

• 3. That it should be declared that certain furniture and various articles of household use set out in the Schedule hereto are the property of the plaintiff;

• 4. That the defendant should pay the costs of these proceedings.”

2 The Summons was supported by an affidavit filed on the same date as the Summons. The documents were served on the defendant. Up until the 22nd of March, 1993 the defendant put in no appearance to the Summons. The matter came on for hearing on 22nd March, 1993, ex parte.

3 Mr. Sergeant sought leave and was filed on behalf of the defendant and an affidavit in support of that Summons filed on 25th March, 1993.

4 Although the matter was heard ex parte on 22nd March, 1993, in the interest of justice and because of the nature of the application. Counsel was given leave to enter an appearance and to argue the matter. The matter was again set for hearing on the 31st March, 1993 when the matter was argued by counsel.

5 The parties were married in September, 1984 there are children of the marriage whose ages are five (5) years and six (6) years. According to the plaintiff before the marriage, in August of 1984, she obtained a loan from Barclays Bank PLC in the amount of $8,000.00 with which she purchased a piece of land at St. John's from one Joseph Anthony Guy Farrell. She deposit that the loan was paid in full by her.

6 After the marriage, according to the plaintiff, she and the defendant decided to build a house on the land which she had purchased. The house was intended to be used as the matrimonial home. In 1987 they obtained a Income Housing Loans Scheme in the amount of $19,428.85 to assist in the construction of the matrimonial home. The loan was taken in the name of he defendant alone. The defendant, according to the plaintiff, repaid only $1,379.67. As at 25th March, 1991 the balance outstanding on the loan was then $18,049.08. The plaintiff deposed that when the loan was granted, the arrangement was that the defendant would pay the amount of $238.60 per month. The defendant neglected and or/refused to meet this obligation.

7 The plaintiff further deposed that at the time when they received the Low Income Housing Loan, they negotiated with Barclays Bank PLC for a loan to assist with the construction of the house and obtained a house loan in the amount of $15,000.00 from the said Barclays Bank PLC which was taken in the name of the defendant alone, on the agreement and understanding that it was to the sum according to the plaintiff was repaid in full on 4th July, 1991 from the proceeds of a mortgage from the said Barclays Bank PLC.

8 The plaintiff deposed that she and the defendant subsequently made application to Barclays Bank PLC for mortgage finance in order to make extension to the house, and on the 7th May, 1991 they were granted a mortgage in the amount of $146,270.00 to complete the extension of the house. Of this amount $66,110.00 was taken in the name of the defendant repayable over twenty (20) years at a rate of $683.00. The remaining $80,160.00 was taken in her name, repayable over twenty (20) years at a rate of $530.00 per month.

9 The plaintiff said that the arrangement whereby the loan was in their separate names was at the insistence of the bank security for this mortgage, there is a legal mortgage over the property described as St. John(s 14/14/52 which was executed by both herself and the defendant, supported by insurance over the said property in the amount of $240,000 and also separate life insurance on both their lives, having a face value of $75,000.00 for the defendant and $10,000 for the plaintiff.

10 The plaintiff deposed that one of the conditions of the mortgage was that all the outstanding loans, namely the balance of outstanding on the loan of $15,000 and the balance under the Government Low Income Housing Loan Scheme would be refinanced from the proceeds of the mortgage, so as to consolidate the debts. At the date of the mortgage these balances amount to $24,270.00

11 The plaintiff states that she began her monthly repayments of $530.00 per month to the mortgage of $80,160.00 with effect from 30 ^th October, 1991 and has been paying every month since, payments made by her up to February, 1993 totalled $9,010.00

12 According to the plaintiff the defendant was due to commence his monthly payments of $683.00 with the effect from 27th February 1992, despite several requests from her and the bank the defendant at the date of

13 filing of the affidavit made only three payments totalling $1,095.00. The plaintiff as a result deposited $200.00 from her own resources towards the defendants loan on 24th June, 1992. The plaintiff further states that in or about July, 1992 the defendant informed her that he was going to England on vacation, she objected vehemently reminding him of his liabilities to the bank and the dire financial straints they were experiencing and the need to bring his arrears up to date. Inspite of her objection and beseeching him not to travel to England, he insisted on going to England. At this point his monthly payments were five months or $3,415.00 in arrears. The defendant spent five months in England and according to the plaintiff, during which time he remitted (50.00 only towards his loan...