The Supreme Court website has been updated to include judgments delivered as recently as July 2013, but this means that judgment delivered prior to 2009 are no longer available on the website.
As I set about updating myself on recent family-law cases, I came across the judgment in the case of Belnavis v Belnavis. The case involved the typical claim for declaration of interest in marital property, but also raised two interesting points of law. The first is whether, having declared the relative interests of parties in property, the court should defer its sale in consideration of the needs of the child of the union. The second is whether the Partition Act was applicable to the proceedings.
In answer to the first question, the judge confirmed that section 23 (1)(d) of the Property (Rights of Spouses) Act empowered him to make an order "postponing the vesting of any share or part hereof in the property until such future sale contingent on such future happening as may be specified in the order," which gave him wide discretion.
He considered that the court had to balance the interests of the child with the interests of the parent who desired the sale of the property. However, in this case, it was found that the parent wishing to sell the property was maintaining the child and that there was no evidence to show that there would be detriment to the child as a result of the sale of the property. For these reasons, the judge concluded that there was no basis for exercise of the discretion to postpone the sale.
On the second issue, the judge also found that section 23 of the act empowered him to order the 'partition' of property and that this meant that the Partition Act was applicable to the case. For that reason, it was determined that the joint owner of property had a right to demand the sale of the property. Such a ruling did not depend on the court's discretion. The order should be made as of right.
Despite the wife's protests, and stated concern for the fact that she is likely to be evicted from the family home, the husband's demand for sale of the property was successful. However, the wife was given the option to purchase the husband's interest in the property within a limited period of time in order to avoid the property being sold to a third party.
I noted that the judge clearly stated that he preferred the evidence of the husband to that of the wife, and he cited some glaring instances in which he found that the wife was being less than forthright in her evidence. This serves as a lesson to all potential witnesses to be frank and truthful in giving evidence, especially in cases in which the judge is being asked to exercise his discretion, because it is very difficult to correct a bad first impression.
Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send your comments and questions to email@example.com or firstname.lastname@example.org on twitter @lawsofeve.