Diane Lori Tabony v August Tabony

• Jurisdiction: Belize
• Judge: Madam Justice Martha Alexander
• Judgment Date: 31 August 2023
• Court: Supreme Court (Belize)
• Year: 2023
• Docket Number: ACTION No. 6 of 2018

BETWEEN:

Diane Lori Tabony

Petitioner

and

August Tabony

Respondent

BEFORE

THE HONOURABLE Madam Justice Martha Alexander

ACTION No. 6 of 2018

IN THE HIGH COURT OF BELIZE A.D. 2023

APPEARANCES:

Mr. Fred Lumor SC and Ms. Sheena Pitts, Counsel for the Petitioner

Mr. Andrew Marshalleck SC and Ms. Stacey Castillo, Counsel for the Respondent

DECISION

INTRODUCTION

1 There are two applications before me. The respondent filed the first summons on 23 January, 2023 to amend his pleadings. By the summons, he seeks leave to file a supplemental affidavit to be treated as pleadings in the matter, but limited to pleading foreign law applicable to the Marriage Contract (i.e. a pre-nuptial agreement) of the parties dated 24 October, 1986. The second summons was filed on 18 April, 2023 by the petitioner to strike out the 23 January, 2023 summons to amend.

2 I find that this is not a suitable case for granting the amendment sought so I dismiss the respondent's summons. I grant the petitioner's strike out application for reasons which are set out below.

BRIEF FACTUAL HISTORY

3 The parties are currently engaged in more than one matter before the court: (i) Action No. 6 of 2018 and (ii) Action No. 260 of 2019. By Action No. 6 of 2018, the petitioner sought a declaration of rights and the division of matrimonial property pursuant to section 16 of the Married Women's Property Act 1 and section 148(A) of the Supreme Court of Judicature Act. 2 A brief history of this matter is necessary to place the current summonses in their proper context and for their just disposal, as these parties have had a long sojourn before the courts.

4 The present summons to amend follows a previous application by the respondent for a trial of a preliminary issue on whether the petitioner could properly rely on the substantive laws of Belize in making her application for ancillary relief. In that previous application, he argued that the parties were married in Louisiana so the doctrine of lex domicilii matrimonii must apply (i.e. the state of Louisiana). He wanted the terms of

the Marriage Contract signed by the parties to determine how matrimonial properties are divided between the parties. He argued that the Marriage Contract was valid and subsisting under the laws of Louisiana, so its terms ought to be enforced by the Belizean courts. The respondent also filed an amended summons on 10 March, 2020 to strike out the petitioner's case

5 These double-barrel applications were disposed of in a written judgment dated 25 July, 2022 3 by the Honourable Madam Justice Sonia Young. In that decision, Justice Young addressed issues of jurisdiction, conflict of laws 4, enforceability and foreign law. Justice Young found that the petitioner has a right to have her ancillary matters determined by the Belizean court, which has the jurisdiction to determine them. She, therefore, refused to strike out the petitioner's case.

6 In her decision, Justice Young stated that “ by submitting to the jurisdiction of the Belizean court for the divorce proceedings, the Belizean court has jurisdiction to deal with the originating summons” 5 of the petitioner. The kernel of the judge's reasons on the Marriage Contract was that, “ even if valid, [it] can not (sic) oust the jurisdiction of the Belizean court which both parties submitted to during the divorce proceedings.” 6

7 Justice Young frontally addressed the issue of foreign law in that decision and determined it. She explored the state of the law and stated that foreign law is a matter of fact so it was necessary for the respondent to plead and prove it, if he wanted to argue that the Marriage Contract was

binding on the parties in these proceedings. 7 She also pointed to the absence of expert evidence on foreign law. Given that it is a factual dispute, expert evidence is required for the court to consider and make a determination. She concluded that the lack of such evidence alone militated against the grant of the strike out order or of a proper determination of this limb of the preliminary issue. She then dismissed the strike out summons

8 At paragraphs 69–89 of her decision, Justice Young adjudicated upon the issue of whether prenuptial agreements are enforceable in Belize. At paragraph 89, she concluded that Belizean courts, unlike our English and Australian counterparts, are not empowered to enforce prenuptial agreements “ until changes are made to its laws.” There was no appeal of her decision.

9 The respondent now brings the present summons to amend the pleadings through use of a supplemental affidavit. He claims that the supplemental affidavit would be limited to pleading foreign law applicable to the Marriage Contract dated 24 October, 1986 between the parties.

SUBMISSIONS OF PARTIES

10 Counsel for the respondent submits that as the present matter involves property division between the parties, what he is seeking to do is to help the court determine the real issues in controversy between the parties. He is not seeking to re-litigate jurisdiction or other issues but wants to assist with the foreign law aspect only. The court will need help with the foreign law, specifically on how the Marriage Contract impacts the division of

matrimonial property. Counsel telegraphed that this will involve calling expert evidence on foreign law

11 Counsel admits, further, that since Justice Young highlighted the deficiencies in the previous application before her, the respondent brings the present application to address those limited concerns. It is the petitioner's summons to strike out that ought to be dismissed since it seeks to prevent the court from having all the issues before it to properly dispose of the matter. Counsel for the respondent states that the court has the power to allow the amendment under order XXXI Rule 1 of the Supreme Court of Judicature Rules 8 and that it will be just to do so.

12 Counsel for the petitioner rejects the attempt by the respondent to amend his pleadings. This is not the first attempt by the respondent to introduce the Marriage Contract as the relevant document for determining property division between the parties. The issue was dealt with by the previous judge having carriage of both matters; the respondent was unsuccessful and no appeal of that decision was made. The present application is, therefore, an attempt to re-litigate the same issues in the judgment of Justice Young. The petitioner argues that it is an abuse of process and ought to be struck out. Her counsel provides nine grounds to justify why the present application ought to be dismissed.

ISSUES

13 The issues that arise from the present applications are:

• a. Whether the application to amend should be allowed?

• b. Whether the application ought to be struck out as an abuse of process?

Whether the application to amend should be allowed?

14 The respondent brings his summons to amend pursuant to order XXXI Rule 1 of the Supreme Court of Judicature Rules, which states:

[1] The Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

15 He argues that the amendment will be just, as the court will be able to determine the real question in issue between the parties. The amendment is limited to pleading foreign law so will allow the court to assess the impact of the Marriage Contract on the division of the matrimonial properties of the parties. By allowing the amendment, the court will get the assistance of expert evidence on...