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IN THE SUPREME COURT OF BELIZE, A.D. 2011

ACTION NO. 31 of 2010

NICOLE PITZOLD APPLICANT

AND

KEVIN PITZOLD RESPONDENT

Hearings 2011 17 th March 17 th May 8 th July 29 th July

Mrs. Robertha Magnus­Usher for the Applicant. Ms. Darlene Vernon for the Respondent.

LEGALL J.

JUDGMENT

1. Marriage and Assets

The applicant and the respondent were students at the University of

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the West Indies, St. Augustine Campus, Trinidad, studying Civil

Engineering when they met in 1994. He is Belizean and she is

Jamaican. Their meeting blossomed first into dating, and later into a

promise to marry; and finally, on 17 th August, 2002, they were

married at the Stella Maris Church in Jamaica. Their relationship in

those early days was a happy one. In a questionnaire dated 15 th

August 2002, just two days before marriage, the respondent in answer

to a question about his favourite body part of the applicant, answered

that she had “a lot of assets” and that carrying the applicant down a

public street in Canada in the cold, to a banquet in a revealing outfit

was his “funniest moment.”

2. For the purpose of living in Belize after marriage, the applicant

resigned from her job at the Jamaica Public Service Co. Ltd., on 4 th

November, 2002 and sold a house and vehicle she owned in Jamaica;

and she and the respondent took up residence in Belize around the 21 st

November, 2002. Initially, they lived as husband and wife at the

respondent’s parents’ home in Belize City until February 2005 when

they bought jointly their own matrimonial home at 10 Baldy Sibun,

Belmopan (the matrimonial home).

3. During the marriage, they bought jointly a timeshare interest in

property described as Unit 600­662, at Westgate Resorts Lake 111,

10000 Turkey Lake Road, Orlando Florida USA (the Westgate

property). There were two other properties situate at East Piccini

Belmopan, namely parcels 5491 and 5492, Block 20 Belmopan

Registration Section (the Piccini Properties). Titles to the Piccini

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Properties are solely in the name of the respondent. In November

2004, the respondent and the applicant purchased jointly another

property, namely, parcel 7225 Block 20 Belmopan Registration

Section for the price of $15,600, situate at 11 Masters Street,

University Heights, Belmopan (the Masters property). The title for

the Masters property is held jointly by both parties. Yet another

parcel of land was secured in 1999 by virtue of a lease in the name of

the respondent. This parcel is parcel 3968 situate at Orchid Gardens

Extension 2 Street 2 Block 20 Belmopan Registration Section (the

Orchid Gardens Property).

4. The respondent, during the marriage, also became the owner of

another piece of land situate at Lot 32 Lake Gardens in Ladyville,

Belize District. But the applicant did not in her originating summons

claim a share of this property, and has confirmed to the court, with the

concurrence of her attorney­at­law, that she is not claiming a share of

this property. The court notes that the respondent’s answer to the

applicant’s assertion in her affidavit that this property was acquired

during marriage, is that the said property was acquired in 1994 for

$10,000 before he met the applicant, and that the correct address of

the property is Lot 34, and not Lot 32, as claimed by the applicant.

5. Other assets were also acquired during the marriage. Around

November 2002, the respondent obtained by hire purchase, furniture

for their matrimonial home, from Courts (Belize) Limited. The total

cost of the furniture was not given in evidence, though the applicant

stated that she paid over $4,000 to Courts. The furniture included

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television set, beds and other bedroom furniture, kitchen appliances,

couch, fridge, and facilities in a dining room. The items of furniture

are in the matrimonial home for the use of the applicant. Since 2006

when the respondent removed from the matrimonial home, he has not

had use of the furniture. There is also a vehicle which was purchased

with a loan of $60,000 which, since 2006 has been in the sole use of

the applicant. The loan for the vehicle was paid off by the applicant

and respondent: each paid 50% of the loan. All of the above

mentioned properties and assets are collectively hereinafter referred to

as the Properties.

6. The Divorce

The happy relationship experienced by the parties dissipated during

the marriage. Serious problems developed in the marriage due to,

according to the respondent, the aggressive, abusive and

argumentative behaviour of the applicant; and according to the

applicant, the adulterous behaviour of the respondent with one Wendy

Gillett. The marriage, a childless one, was a marriage of

psychological pain and suffering; and in September 2006, after about

four years of marriage, the respondent removed from the matrimonial

home, stating, it is alleged, that he needed to “cool his head.” In a

petition for divorce by the applicant dated 15 th March, 2009 the court

on 19 th January 2011 granted in her favour a decree absolute on the

ground of the respondent’s adultery.

7. During the divorce hearing, the applicant filed an application for

maintenance by originating summons dated 1 st June, 2010. But this

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was withdrawn, on procedural grounds; and on 4 th March, 2011,

another application for maintenance was filed, this time correctly by

petition, instead of originating summons. This new application was

filed about six weeks after the decree absolute was granted, making it

necessary under the Matrimonial Causes Rules No. 10 of 1982, which

mandate that a petition for maintenance has to be filed not later than

one calendar month after obtaining the decree absolute, except leave

of the court is granted. Accordingly, the applicant applied for leave to

file the petition for maintenance out of time, and the application for

maintenance is yet to be heard.

8. Division of Property

The applicant also filed on 1 st June 2010 an application by originating

summons for division of property under section 16 of the Married

Women’s Property Act Chapter 176 (section 16) and under section

148 A of the Supreme Court of Judicature Act Chapter 91 (the Act).

The applicant claims the following reliefs:

“(1) (a) A Declaration under section 16 of the Married Women’s Property Act, Chapter 176 and or under section 148A of the Supreme Court of Judicature (Amendment) Act No. 8 of 2001 that the applicant is beneficially entitled to two­thirds (2/3 rd ) share or interest in the properties listed SCHEDULE below.

(b) A Declaration that the applicant is beneficially entitled to more than one­half share or interest in the

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personal properties owned by the parties or such share or interest as the court shall deem just.

(2) An order that the aforementioned properties be sold and the net proceeds of sale be shared equally between the applicant and the respondent; or that the properties be settled or interest altered whereby the applicant retains the matrimonial home and such other property or interest in the remaining properties as the court deems fit.

(3) An Order that the respondent do pay the applicant such monthly or weekly sum in maintenance and make other financial arrangements in respect of the maintenance of the applicant, as may be just.

(4) An Order of injunction restraining the respondent by himself, his agents and servants or otherwise from selling, transferring, leasing, charging or in any way dealing with any of the real and movable properties aforementioned and the inventories until, the determination of the Action herein or further order.

(5) Such further or other order or relief as the court may deem just.

(6) Cost.

Schedule (1) All that piece or parcel of land

and the building thereon situated

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at 10 Baldy Sibun Street, Belmopan Heights, East Piccini Extension, Belmopan known as Parcel 5056, Block 20, Belmopan Registration Section.

(2) All that piece or parcel of land known as Parcel 7225, Block 20, Belmopan Registration Section (11 Masters Street, University Heights).

(3) All that piece or parcel of land known as Parcel 3986, Block 20, Belmopan Registration Section (Orchid Garden Extension 2 Street 2).

(4) Timeshare interest in Unit 600­ 662, interval 16 Westgate Lake lll located at 10,000 Turkey Lake Road, Orlando, Fl. 32819, USA.

(5) All that piece or parcel of land known as Parcel 5491, Block 20, Belmopan Registration Section 9 (Parcel 5491 East Piccini, Belmopan).

(6) All that piece or parcel of land known as Parcel 5492, Block 20, Belmopan Registration Section (Parcel 5492 East Piccini, Belmopan).”

9. During the hearing, learned counsel for the applicant applied to amend

paragraph 2 of the originating summons to read two thirds share for

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the applicant, instead of equal shares as pleaded. By consent the

application was granted.

10. Bank Accounts and salaries

The bank accounts and salaries of the parties give an indication of

their ability to make contributions to the acquisition of the Properties.

There were several bank accounts established by the parties. Account

No. 1900073 at Bank of Nova Scotia was opened in November 2002,

about four days after the applicant arrived in Belize, with a deposit by

the applicant of about US$2,000. This account was in the names of

the respondent and the applicant. This account was subsequently used

to deposit the applicant’s salary and remuneration from her

employment at the Ministry of Health, the Universities of Belize and

the West Indies. The respondent also made some deposits to this

account from his salary as a Civil Engineer at Burrell Boom

Associates, though from the evidence his deposits in this account did

not reach the level of the applicant’s. The applicant’s salary was paid

into this account throughout the marriage until 2007.

11. There was also a Scotia Bank Advantage Master Card in both of their

names. There was another account at the said bank, BNS No.

1931432 specifically for mortgage payments on the matrimonial home

and for loan payments on the vehicle. The mortgage payments were

divided equally between them. The respondent also had an account at

First Caribbean International Bank in which most of his salary from

Burrell Boom Associates was deposited. The applicant also opened

an account No. 15149 at the St. John’s Credit Union Ltd., with an

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initial deposit of US$2,000 and she listed in that account the

respondent as 100% beneficiary.

12. The applicant came to Belize after marriage with about US$10,000,

the majority of which was deposited in some of the above accounts,

over $4,000 were used for the furniture, and she retained about

US$1,500 in case US currency was urgently needed.

13. The applicant obtained full time employment in Belize in March 2003

at the Ministry of Health where she was employed until 2007 when

she took up her present employment at Belize Electricity Limited

(BEL). She states that her salary is $3,557.84 per month. She has not

said whether or not she is paid allowances, and if so, at what rate. The

applicant states that the respondent earns approximately $4,000 per

month from his present employment at Social Investment Fund, plus

income from UWI and private engineering jobs.

14. The respondent has given evidence that his salary is $5,775 per

month; that he does not get any allowances, but is entitled to a gratuity

every two years. He also, as part of his employment package, gets the

use of a fully maintained vehicle. But the respondent swore in

paragraph 36 of his first affidavit that the annual income of the

applicant, as at 24 th September, 2010 at BEL, was over $50,000 per

annum, and he listed twelve items of allowances and other benefits

payable to the applicant. He states that her earnings are higher than

his. But at the date of trial 17 th May 2011, he gave evidence that he

did not know her current salary. The applicant in response has not

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addressed the particulars of the alleged allowances and benefits

payable to her, but simply denied them, and states her salary is

$3,551.84 monthly.

15. The Legislation

The applicant grounded her application for a share of the Properties

mentioned above, on section 16(1) of the Married Women Property

Act Chapter 176, and section 148A of the Supreme Court of

Judicature Act, Chapter 91. Section 16(1) states:

“16.­(1) In any question between a husband and wife as to the title to or possession of property, either party, or any such bank, corporation, company, public body or society as aforesaid in whose books any stocks, funds or shares of either party are standing, may apply by summons in a summary way to a judge of the court who may make such order with respect to the application as he thinks fit, or may direct such application to stand over from time to time, and any inquiry touching the matters in question to be made in such manner as he thinks fit.”

16. Section 16 provides for an application for property rights to be made

by summons in a summary way, which usually means a speedy

disposition of the dispute between husband and wife without the need

for a trial or a full proceeding. This section provides a summary and

informal form, which can sit in Chambers for the resolution of

disputes between husband and wife as to title to or possession of

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property, whether real or personal. It is to be noted that the section

does not use the word “rights” with respect to property, as appears in

section 148A below of the Act. But there seems to be merit in the

view of Davis CJ that section 16 “is a procedural section and does not

prevent actions between spouses for declaration of rights”: see Tittle

v. Tittle 1976 23 WIR 174, at page 176. Section 16 seems available

while the husband and wife are living together, as well as when the

marriage has broken down; and also in relation to property acquired

while they were courting which crystallized into marriage later on.

Section 16 does not suffer from the limitation of section 148A, as we

shall see below, which limits the jurisdiction of the Supreme Court to

property acquired during the subsistence of the marriage. Under

section 16 monies contributed by parties before marriage, with a view

to purchase property which is intended to be a family asset, are in the

same position as monies contributed by them after marriage. When

the marriage takes place the property becomes their joint property;

becomes an asset belonging to both of them: see Ulrich v. Ulrich

1968 1 AER 67 per Denning MR.

17. Section 148A of the Act, on the other hand, allows an application to

the Supreme Court for a declaration of title or rights in matrimonial

properties. Section 148A is as follows:

“148A.(1) Notwithstanding anything contained in this Part or in any other law, a husband or wife may during divorce proceedings make application to the court for a declaration of his or her title or rights

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in respect of property acquired by the husband and wife jointly during the subsistence of the marriage, or acquired by either of them during the subsistence of the marriage.

(2) In any proceedings under subsection(1) above, the court may declare the title or rights, if any, that the husband or the wife has in respect of the property.

(3) In addition to making a declaration under subsection (2) above, the court may also in such proceedings make such order as it thinks fit altering the interests and rights of either the husband or the wife in the property, including:­

(a) an order for a settlement of some other property in substitution for any interest or right in the property: and

(b) an order requiring either the husband or the wife or both of them to make, for the benefit of one of them, such settlement or transfer of property as the court determines.

(4) The court shall not make an order under subsection (3) above unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

(5) In considering whether it is just and equitable to make an order under subsection (3) above, the court shall take into account the following:­

(a) the financial contribution made

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directly or indirectly by or on behalf of either the husband or the wife in the acquisition, conservation or improvement of the property, or otherwise in relation to the property;

(b) the non­financial contribution made directly or indirectly by or on behalf of either the husband or the wife in the acquisition, conservation or improvement of the property, including any contribution made in the capacity of housewife, homemaker or parent;

(c) the effect of any propose order against the earning capacity of either the husband or the wife;

(d) the age and state of health of both the husband and the wife, and the children born from the marriage (if any);

(e) the non­financial contribution made by the wife in the role of wife and/or mother and in raising any children born from the marriage (if any);

(f) the eligibility of either the husband or the wife to a pension, allowance, gratuity or some other benefit under any law, or under any superannuation scheme, and where applicable, the rate of such pension,

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allowance, gratuity or benefit as aforesaid:

(g) the period when the parties were married and the extent to which such marriage has affected the education, training and development of either of them in whose favour the order will be made;

(h) the need to protect the position of a woman, especially a woman who wishes to continue in her role as a mother;

(i) any other fact or circumstances that in the opinion of the court the justice of the case requires to be taken into account.

(6) Where the court makes an order under subsection (3) above, it may also make such consequential orders in respect thereto including orders as to sale or partition, and interim or permanent orders as to possession, and may further order that any necessary deed or instrument be executed, and that such documents of title to the property be produced or such other things to be done as are necessary to enable the court’s order to be carried out effectively, or that security be provided for the due performance of an order.

(7) Any order made by the court under this section shall be binding on the husband and the wife, but not on any other person.

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18. As can be seen from section 148A(1), the application by husband or

wife to title or rights to property has to be made “during divorce

proceedings.” In this case before me the petition for divorce was filed

by the applicant in 2009 and the decree absolute was granted on 19 th

January 2011. The application by originating summons for a

declaration of the applicant’s rights to the Properties was filed on 1 st

June, 2010. The application was therefore made during the divorce

proceedings.

19. Section 148A(1) stipulates that the application for a declaration of title

or rights to property has to be in respect of property acquired by the

husband and wife jointly during the subsistence of the marriage or

acquired by any of them during the subsistence of the marriage. I

therefore, with the greatest respect, agree with Barrow JA in Vidrine

v. Vidrine Civil appeal No. 2 of 2010 (unreported) that it is under

this section “clear ….. that it is only in respect of property acquired

during the marriage that the court may exercise the newly conferred

jurisdiction.”

20. The burden is on the applicant to prove, on a balance of probabilities,

that the Properties were acquired during the subsistence of the

marriage for purposes of section 148A of the Act. Having identified

such properties, the court is authorized by section 148A(2) to declare

the title or rights of the husband or wife in respect of the Properties.

The court is also authorized by section 148A (3) to make such order

as it thinks fit to alter the interest and rights of either spouse in the

Properties. But the court is not authorized to make such an order

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under section 148A(3), unless it is satisfied, that in all the

circumstances it is just and equitable to make the order. Section 148A

(5) of the Act provides in paragraphs (a) to (i) matters to be taken into

account in considering whether it is just and equitable to make the

order under subsection (3). Under section 148A the first task of the

court is to identify the properties that were acquired during the

subsistence of the marriage, jointly and individually by the spouses.

21. Properties Acquired

(1) The matrimonial home. This property was acquired in February

2005 during the marriage in the joint names of the respondent and the

applicant. They secured a mortgage in the sum of $100,000 from the

Bank of Nova Scotia, and both of them have been paying off the

mortgage which has a balance of about $70,000. The applicant states

that she wishes to continue living in this house and would agree to be

responsible solely for paying the mortgage.

22. (2) Parcel 7225: The Masters Property. This property was purchased

jointly by the applicant and respondent in November 2004 during the

marriage for the price of BZ$15,600.

23. (3) Parcel 3968: The Orchid Gardens Property. The respondent

became the lessor of this piece of land in 1999 before the marriage.

But the parties made payments towards the purchase price of the land

during the subsistence of the marriage. The vendor, Reconstruction

and Development Corporation (Recondev), on full payment of the

purchase price, prepared a document in 2008 to transfer title to the

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piece of land to the applicant and the respondent jointly. Recondev

signed the transfer document which was also signed by the applicant;

but the respondent refused to sign, and title to the property was not

issued to either of them. Neither of them has title to this property to

prove ownership. The question is this: was this land, on the basis of

the payments made during the marriage, acquired during the

subsistence of the marriage for purposes of section 148A(1) above?

In the absence of evidence of a formal written agreement to transfer

the land to the applicant and respondent, and in the absence of any

title to that land in their names, it may be that no acquisition of that

land by the parties occurred during the subsistence of the marriage.

The phrase “property acquired” which appears in section 148A(1)

could not be intended by parliament to mean property physically

acquired without any legal or equitable right or interest in the

property. The phrase would seem to include property acquired by title

or some other form of legal or equitable interest during the

subsistence of the marriage.

24. I think there is enough evidence in writing to show that there was an

agreement by the parties to purchase this parcel from the vendor

Recondev. There is no single formal document entitled agreement to

purchase the land. But there are receipts of payments dated April

2008 containing the name of the applicant, the parcel and location of

the land, the amount paid for the land and the name of the vendor.

There is also evidence from the respondent that in July 2004 he paid

$2,009. by Scotia Bank Cheque to the vendor for his interest in the

said parcel of land. I hold that there is enough memorandum or an

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agreement in writing during the marriage by virtue of the documents

to sell the land to the applicant and the respondent. The question is

whether that agreement of sale of land conferred rights, interest or title

in the parcel to the purchasers. The immediate effect of a binding

agreement for sale of land is to pass the equitable estate in the land to

the purchaser. The legal estate remains in the vendor until

conveyance has been executed, but meanwhile equity regards the

vendor as a trustee for the purchaser and is prepared to decree specific

performance at the instance of the latter: Shaw v. Foster (1872) LR

5HL 321; The moment you have a valid contract for sale the vendor

becomes in equity a trustee for the purchaser of the estate sold, and

the beneficial ownership passes to the purchaser, the vendor having a

right to the purchase money: …. see Lysaght v. Edwards 1876 2

CHD 499 per Jessel MR at p 506. I therefore hold that this property

was acquired during the marriage.

25. (4) Parcels 5491 and 5492: The Picinni Properties

The applicant claimed that these two parcels of land were purchased

by her and the respondent for $4,000, but the titles were registered in

the respondent’s name alone in October 2002. In other words,

according to the applicant, these parcels were legally by title acquired

by the respondent during the marriage. The respondent states that

these parcels were fully purchased by his parents for his benefit in

April 2002 and May 2002 respectively before marriage. The

respondent has tendered receipts in the name of his father Carl Pitzold

dated April 2002 and May 2002 which state that payment in full for

these parcels in the amount of $3,000 each. The respondent has also

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exhibited the land certificates for both parcels of land in his name

dated 8 th October 2002. The applicant states that she paid the stamp

duties for the parcels on 8 th October, 2002 but she also said she did

not physically pay the stamp duties.

26. The receipt for the stamp duties has the words “Received from Mrs.

Kevin Petzold” and so the applicant states that she paid the stamp

duties for the parcels during the marriage. But the applicant has

sworn in her first affidavit that “I left Jamaica on November 21, 2002

to reside in Belize.” The respondent states that the applicant was not

in Belize in October 2002 to pay the stamp duties, and that the “Mrs.

Kevin Petzold” appearing on the receipts was a mistake. I accept that

the applicant was not in Belize in October 2002; and she admitted that

she did not pay the stamp duty physically, but has failed to show how

otherwise it was paid by her. The stamp duties, according to the

respondent, were paid by his mother. Based on the evidence, I hold

that these parcels 5491 and 5492 were not acquired during the

marriage, but were acquired on the date of the receipts for the parcels,

April and May 2002.

27. (5) Furniture and vehicle

As shown above, these were acquired during the marriage. The

applicant and respondent paid for the furniture, though the applicant

contributed a greater share; and both of them paid equal amounts for

the vehicle.

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28. Rights under Section 16

As held above, the Piccini Properties were not acquired during the

marriage for purposes of section 148A. But does the applicant have

rights to these properties under section 16 based on any contributions

made by her. The question that arises is whether the money sent by

the applicant to the respondent in Canada while he was a student, and

before marriage, included the purchase of these properties. Was this

money sent and received with the intention by both parties that a

portion of it was to purchase these properties which would later

become matrimonial property or assets? The applicant states that the

money was intended to purchase the property as well as to assist the

respondent with his education. The respondent states it was to assist

him in providing educational facilities, such as a computer which

would later be of use to both of them, and that the money was not

intended to purchase these properties.

29. The money was sent by the applicant to the respondent around

January 2001 in the amount of about US$2000. The properties were

purchased around May 2002, more than one year after the money was

sent. Why send the monies to a student in Canada to purchase

property in Belize more than one year before the property is in fact

bought? This question raises doubt in my mind in relation to the

truthfulness of the applicant’s assertion that the money was sent

towards the purchase of the Piccini Properties.

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30. There are discrepancies in the respondent’s evidence, including

discrepancies in relation to these parcels of land. These discrepancies

are narrated forcefully in the written submissions of the applicant,

which the court considers, but do not see the need to repeat them here.

There are discrepancies in the evidence of the applicant also. I am not

satisfied, on a balance of probabilities, that money was sent to

purchase these properties. Considering all the discrepancies, I am not

satisfied that by sending the money, and then receiving it, that there

was a common intention by the parties, that the interest or beneficial

interest in these properties would be shared. For an applicant to

acquire a beneficial interest in property under section 16, the evidence

has to show a common intention of the parties that the applicant by

sending the monies should acquire a beneficial interest in the

properties: Pettitt v. Pettitt 1970 AC 777 and Grant v. Edwards

1986 Ch. 638.

31. But there is clear and convincing evidence, including a document

agreed to by the parties – Ex. NP9 – that contains shared expenses,

including the payment of property taxes for these properties, that both

parties paid property taxes. This document was written by the

respondent with the agreement of the applicant; and it states the

property taxes payable by the applicant and respondent in relation to

these parcels. I have no doubt that with the agreement of the

respondent, the applicant paid property taxes for these properties, and

the question is whether the applicant is entitled to a beneficial interest

in these properties under section 16 based on the payment of the

property taxes.

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32. Both the applicant and respondent paid property taxes with respect to

these properties in the amount, according to Ex. NP9, of $28 twenty­

eight dollars each a year. This is an infinitesimal and de minimis

amount. Under section 16 the judge is authorized to make an order as

“he thinks fit.” These are words which undoubtedly give a judicial

discretion to the judge, but they cannot be interpreted, “as endowing a

judge with the power to pass the property of one spouse over to the

other ……” per Lord Morris in Pettitt v. Pettitt above at page 799.

Since the court has a discretion to declare rights under section 16, I

think on the basis of the principle de minimis non curat lex such a

declaration should not be made. Moreover, as shown below, the

applicant gets the whole of parcel 7225 although, on her own

evidence, she made only 80% contribution for this property.

33. The Properties: Declaration of Rights

Having identified and valued the properties acquired during the

marriage, the next task is to, under section 148A(2) of the Act, to

declare the title or rights that the applicant and respondent may have

in relation to the properties acquired during the marriage. On the

basis of the evidence referred to above, Lots 5491 and 5492, were not

acquired during the marriage, and therefore the court has no

jurisdiction to declare title or rights of the parties in relation to these

parcels under section 148A. Based on the evidence, the matrimonial

home, the Westgate property, (timeshare), the vehicle, and Parcel

7225, the court declares that the applicant and the respondent have

fifty percent title, rights or shares to each of these properties. In

relation to the furniture, the court declares that the applicant has

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eighty percent rights to the furniture; and in relation to the Orchid

Gardens property the court declares that the rights in this property are

in the proportion of 60% ­ 40% in the applicant and respondent

respectively.

34. Alteration of Property Rights

Having declared the title or rights of the parties in the Properties, the

court may under section 148A(3) make such order as it thinks fit to

alter the interest and rights of the parties. The alterations may require

the applicant or the respondent or both of them to make for the benefit

of one of them, such settlement or transfer of property as the court

determines. But the court shall not make an order altering rights of

the parties unless in all the circumstances, it is just and equitable to do

so. In considering whether it is just and equitable to do so, the court

has to take into account several matters, all of which carry equal

weight. The matters which the court has to take into account are

contained in section 148A(5)(a) to (i). In relation to this case,

paragraphs (c) (e) and (g) of section 148A(5) do not seem to be

applicable. The relevant matters to be taken into account are as

follows.

35. 5(a) Financial Contribution

Under this subsection, the court takes into account the financial

contribution made directly or indirectly by or on behalf of the husband

or wife in the acquisition, conservation or improvement or otherwise

in relation to properties acquired during the marriage.

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(i) Matrimonial home: This property was acquired by mortgage for

about $100,000 and the mortgage payments were divided equally

between them. Both parties paid half of the mortgage installments to

the bank, though it is alleged that the respondent did not pay for about

one or two months. The applicant states that the respondent continues

to contribute 50% of the mortgage payments. The balance remaining

on the mortgage is about $70,000 which the applicant states she is

prepared to assume. Both parties continue to pay the mortgage

installments on the property which is owned jointly by both of them.

Property taxes for this property were paid by both of them. Exhibit

NP9 gives the monthly contribution of each party to this tax. The

applicant alleged that she paid property tax from 2007 to January

2011 after the respondent left the home and also paid annual property

insurance.

36. (ii) Westgate Property (Timeshare)

This property was bought jointly by both parties at a price of

US$10,800. The applicant states that she paid the deposit of

US$1,381.19 and made monthly payments of US$196.48 from

September 2002 to March 2003, after which payments were made

jointly by both parties. By email dated May 7 th 2003 from the

applicant, a request was made to Westgate to have charges payable to

Westgate be switched from the applicant’s credit card to the

respondent’s visa card, which the applicant submitted was evidence

that she paid the payment to Westgate up to May 2003. But it also

indicates that the respondent made payments afterwards, though there

is evidence from the applicant that between May 2003 and April 2005

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the respondent paid the charges through his credit card. But the

applicant states both of them paid for the said credit card.

37. (iii) Parcel 7225: The Masters Property

This property was purchased jointly for the price of BZ$15,600 in

November 2004. The applicant swore that she contributed 80% of the

purchase price, but the respondent states that they both contributed

50% each of the purchase price. To support her submission that she

paid 80% of the purchase the applicant swore that in 2004 her taxable

income was $55,000 a year, $16,000 more than the respondent and

therefore she was able to pay 80% of the purchase price. Earning a

higher income certainly makes the applicant capable of making a

larger contribution to the purchase price of this property, but it does

not necessarily prove, and the burden is on the claimant to prove on a

balance of probabilities, that the applicant in fact paid 80% of the

purchase price of the property. It is however clear to me, on the

evidence, that both parties contributed to the purchase price, though in

my view it is not satisfactorily proven on the evidence – the only

witnesses being the applicant and the respondent – the exact

percentage of the purchase price paid by each of them.

38. (iv) Parcel 3968: Orchid Gardens Property

In relation to this piece of land, both the applicant and the respondent

made monthly payments. The respondent states that he made

payments amounting about $3,000. There is a cheque dated 8 th April

2008 signed by the applicant for an amount of $2,006.35 paid for this

piece of land. The applicant also swore that she paid $2,009.00 on

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21 st July 2004 with respect to this property. The cheque was sent in a

letter signed by the respondent. The purchase price of the land was

$10,480 and was paid in full.

39. (v) Motor Vehicle

This vehicle was bought jointly for $60,000, and was paid off by the

parties in equal shares. This vehicle is in the sole use of the applicant.

It is submitted for the applicant that no claim is made for the vehicle,

but the wording in the reliefs claimed in the originating summons

would seem to include the vehicle.

40. (vi) Furniture

The applicant paid off the bill to Courts (Belize) Limited for the

furniture, about $4,000, which furniture is in the matrimonial home

for the sole use of the applicant.

41. (vii) Loan

There was a loan of $18,000 for the wedding and the applicant paid

off the balance remaining on the loan, which amount of balance is not

clear to me from the evidence.

42. (vii) General

The respondent states that he paid a portion of all bills or expenses up

to the time he left the matrimonial home in 2006. The applicant and

the respondent, according to him, shared the payment of the bills up to

2006 when he left the home. According to the respondent, some

receipts and cheques evidencing the payments would be in the

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applicant’s name alone, because only one person did the physical act

of payment. He also said he paid other bills, such as water, electricity,

insurance for the house and motor vehicle. After he left the home in

2006, the respondent says the applicant paid bills for the matrimonial

home such as repairs, plumbing, maintenance of the yard and property

taxes. The respondent continues to pay his share of the mortgage for

the matrimonial home.

43. 5(b) Non­Financial Contribution

The applicant contends that she did the housekeeping, cooking, the

washing of the clothes and making of fruit juices and the general care

of the home. The respondent states that he washed his own clothes,

purchased his own food and made his own breakfast and he wears his

clothes without them being pressed. But he admitted that on

occasions the applicant made orange or fruit juices. Both of the

parties were employed full time and the applicant and the respondent

had more than one job. They are both professional engineers and

there are no children of the marriage. In those circumstances, it is not

difficult to accept that the housework was shared between them. As I

mentioned earlier, the burden is on the claimant to prove that she did

all or most of the housework; and in order to prove that she relies on

her evidence alone, not supported by any other witness, such as a

friend or relative. I am not satisfied that the applicant has proven, on a

balance of probabilities, that she did all or most of the housework.

44. 5(d) Age: State of Health

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The applicant is 36 years old and the respondent is 37. I have no

evidence of the state of health of the respondent; but the applicant

states that since 2007 she has been diagnosed with recurring acute

pharynx inflammation and sinusitis. Though the applicant claimed

she was diagnosed with this illness, no medical report or evidence of a

doctor was presented to substantiate and explain this malady. She

said that due to the sickness, and her activities as a Jehovah Witness,

she had to give up supplemental jobs, such as teaching; but once again

no supporting medical testimony that her illness was responsible for

preventing her from keeping the jobs; and to what extent was the

illness responsible for this, as opposed to her religious work. The

respondent states that he has no knowledge of the illness of the

applicant and states that the illness claimed by the applicant did not

prevent her from vocally scandalizing his name in public on a regular

basis. Once again the burden is on the applicant to prove, on a

balance of probabilities, that she suffers from the illness which

resulted in her giving up the jobs. On the evidence, I am not so

satisfied.

45. 5(f) Gratuity and other benefits

The respondent is employed at Social Security Board at a salary of

$5,775 a month. He gets no allowances, but gets a gratuity which is a

percentage of his salary at the end of a two year contract. He was the

facilitator at a workshop for which he received $3,000. It seems that

the workshop is not a regular form of employment, but it occurred on

one occasion. An approximate amount of the gratuity was not given.

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He also gets as part of his employment, the use of a vehicle as a

benefit from his job.

46. The applicant states that her salary at Belize Electricity Limited, as a

project coordinator is $3,557.84 per month; but has not given any

evidence as to allowances or benefits, if any, attached to her

employment. The respondent swore that the applicant receives over

$50,000 as her annual income, and he listed in paragraph 36 of his

first affidavit an impressive list of benefits and allowances payable to

the applicant. The applicant has simply denied the benefits and

allowances as stated by the respondent. I have no details from the

applicant of any allowances or benefits payable to her by virtue of her

job at BEL.

47. The list of benefits payable to the applicant as alleged by the

respondent is given in the appendix to this judgment. Once again, as I

have mentioned in relation to the applicant, there is no supporting

evidence from the respondent, such as evidence from the applicant’s

employer, to support the list of benefits. It is also difficult to imagine,

bearing in mind the applicant’s job as project coordinator at BEL, that

no allowances are attached to her job.

48. 5(h) Need to protect the position of a woman

This is one of the matters which the court is required to consider

under section 148A(5) of the Act. In this case, there is no child of the

marriage. As mentioned above, both parties are professional

engineers holding good jobs and receiving a fairly good salary. There

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is evidence that the applicant’s salary package is higher than the

respondent’s. This subsection requires the court to consider the

position of the woman, and not the man or the position of both parties.

In these modern times where both the man and the woman have equal

opportunities to educational facilities and employment; and as in this

case, where both parties are employed as professionals earning about

the same salaries, it is difficult to understand the general gender

discrimination contained in this subsection which may be

unconstitutional. There are, undoubtedly, many instances where the

employment status and earnings of a woman may not approach the

level of the man, and in that sense the subsection is understandable.

But, on the other hand, there are certainly numerous instances where

the reverse is also true. Bearing that in mind, perhaps this subsection

should have been worded in such a way as to make it applicable to

either the husband or the wife, depending on the circumstances of the

case or to both of them. But having said that, I am bound to take into

account, and I so do, this subsection as worded in considering whether

it is just and equitable to make an alteration of the rights of the parties.

49. 5(i) Other facts and circumstances

Under this subsection, I am persuaded that there are other facts and

circumstances, apart from those under the other paragraphs of the

section, that the justice of the case requires to be considered. For

instance, the applicant after marriage brought US$10,000 which

amounted as a great help to the newly married couple to start on the

marital journey together. Her negotiations with Recondev which

resulted in a reduction of the purchase price for parcel 3698, though I

31

accept that the negotiations were done on behalf of her and the

respondent, I think this ought also to be considered. Also to be

considered under this heading is the fact that the applicant, after the

respondent left the matrimonial home in 2006, continued to pay

expenses and property taxes on the properties acquired during the

marriage. I also accept the respondent evidence that the applicant

earns a higher salary than him, and I accept that the applicant receives

some form of allowances or benefits as part of her salary package at

BEL.

50. Having considered the properties acquired during the marriage, and

having taken into consideration the relevant matters is section 148A

(5)(A) to (i) is it just and equitable, under the circumstances of this

case, to make an order to alter the rights and interest of the parties. I

consider, based on the evidence and the facts examined under

subsection 5 of section 148A above, that it is just and equitable to

make orders to alter the rights and interest of the parties to the

Properties acquired during the marriage.

51. The Picinni Properties were not acquired during the marriage and the

contribution made by the applicant in relation to these properties was

small as we mentioned above. The court under section 16 is

authorized to declare, not to vary or alter, property rights of the

parties: see Pettitt v. Pettitt above. Section 16 does not entitle the

court to take property from one spouse and allocate it to the other. In

a question as to title to property under section 16, the question for the

court is “whose is this, and not to whom shall this be given”: see

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Pettitt v. Pettitt above, per Lord Morris at page 798. The power to

alter rights and interests in properties given under 148A(3) applies to

properties acquired during the marriage.

52. I am satisfied, in all the circumstances, that it is just and equitable to

alter the interest and rights of the parties shown above. In considering

whether it is just and equitable to alter the rights, I take into account

paragraph 5(a)(b)(d)(f)(h) and (i) of section 148A. I alter the interest

and rights by conferring on the applicant the matrimonial home on

payment by her of the mortgage. The applicant is entitled to the

furniture and the vehicle and 50% of the proceeds upon the sale of the

Westgate property and she is also entitled to the Masters property.

The respondent is entitled to the Orchid Gardens properties and 50%

of the proceeds of the sale of the Westgate property. The respondent

will retain full ownership of the Picinni Properties which were not

acquired during the marriage and which the court, as we saw above,

has no jurisdiction to alter.

54. I therefore make the following orders:

(1) The applicant shall:

(i) have title in her name alone to all that piece (i) piece parcel

of land and the building thereon situate at 10 Baldy Sibun

Street Belmopan Heights; Belmopan known as Parcel 5056

Block 20, Belmopan Registration Section. The applicant

shall be solely responsible for paying the balance owing on

the mortgage with respect to this property.

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(ii) have all the furniture in the property mentioned at (i) above,

(iii) have a fifty percent of net proceeds of sale of the Westgate

property, namely Unit 600­662 Interval 16 Westgate Resorts

Lake 111, 10000 Turkey Lake Road, Orlando Florida USA.

This property shall be sold and the net proceeds of the sale

shared equally between the applicant and the respondent.

(iv) have full ownership of vehicle presently in the custody of the

applicant; and

(v) have title in her name alone to all that piece or parcel of land

known as Parcel 7225 Block 20 Belmopan Registration

Section 11 Masters Street University Heights.

(2) The respondent shall:

(i) have title in his name alone to all that piece or parcel of land

known as Parcel 3986 Block 20 Belmopan Registration

Section Orchid Gardens Extension 2 Street 2.

(ii) retain sole ownership of all those parcels of land known as

Parcels 5941 and 5942 Block 20, Belmopan Registration

Section, East Picinni, Belmopan.

(iii) have fifty percent of the net proceeds of sale of the Westgate

Property described above.

(3) The Registrar of Lands is authorized to convey to the

applicant and the respondent such respective parcels of land

granted to them under this order on the necessary deeds,

documents or instruments being or required to be executed,

and may do such things as are required or necessary to give

effect to this order.

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(4) Each party to bear his and her own costs.

Oswell Legall JUDGE OF THE SUPREME COURT

29 th July, 2011

PTO

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APPENDIX

Benefits Paragraph 37

i. Housing grant of $6000.00 or more ii. Telephone expense of approximately

$1,200.00 iii. Cellular expenses of $3,000.00 iv. Vacation grant of over $300.00 v. Electricity rebate of over $1,000 vi. Medical insurance vii. Health insurance for husband/kids viii. Vehicle grant of over $11,000.00 per

annum ix. STI – over $9,000.00 x. Life insurance (which is 2xs annual

salary or 4xs if on the job) xi. BEL contributes a matching 6%

pension of your salary which earns annual interest of 9% per annum

xii. Annual increments – BEL pays up to 6% increase in salary per annum based on performance and item (iii) above is tied to this. (BEL also evaluates all jobs salaries against the local market and Caribbean every 3 year and Belize is in the top 90 percentile)

xiii. BEL also offers annual overseas training at least one time per year for management personnel.

xiv. Receives 20 days paid vacation