King v Aguilar
| Jurisdiction | Belize |
| Judge | Conteh, C.J. |
| Judgment Date | 21 October 2008 |
| Court | Supreme Court (Belize) |
| Docket Number | 449 of 2004 |
| Date | 21 October 2008 |
Supreme Court
Conteh, C.J.
449 of 2004
Mr. E. Andrew Marshalleck along with Ms. Liesje Barrow for the applicant.
Ms. Lois Young SC for the respondent.
Real Property - Joint proprietors — Statutory trust for sale affixed on land — Whether the court could order partition instead of sale — No agreement between the parties for partition.
Family Law - Maintenance — Whether married spouse entitled to maintenance in the absence of judicial proceedings for divorce or separation.
Conteh, C.J. The rendition of judgment in this case only now is very much regretted. But the reasons for the delay have been described in a judgment given on 10th October 2008 in another case. This is principally due to the caseload of the Court and the then unavailability of enough judges for the Supreme Court.
In this case, the applicant Mr. Tilvan King, by his summons dated 18th August 2004 seeks from this court the following:
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(i) A Declaration under section 16 of the Married Women's Property Act that the applicant is beneficially entitled to one half share or interest in the following property:
All that piece or parcel of land situate in the Belmopan Registration Section, Block No. 20, Parcel No. 3437 containing 6.35 acres;
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(ii) An Order that the above-mentioned property be sold and the net proceeds of sale after payment of the sum due under a mortgage with First Caribbean International Bank (Barbados) Ltd., be divided equally between the applicant and the respondent.
On 20th October 2004, the respondent, Linda Aguilar, took out in effect, in so far as the land in question is concerned, a cross-summons asking the Court for the following relief:
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(i) An order that the land specified (that is the 6.35 acres) which is subject to the statutory trust for sale created, do vest in the respondent for all the estate and interest of the respondent.
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(ii) An order directing that the trustees for sale to give effect to a partition for the aforesaid property and to execute a conveyance or transfer to each of the two tenants of one-half thereof.
The respondent's summons stated that her applications were made pursuant to sections 58(1)(a)(v) and 58(1)(d) of the Trusts Act — Cap. 202 of the Laws of Belize, Rev. Ed. 2000.
The respondent in the same summons made as well an application pursuant to the inherent jurisdiction of the court to order the applicant to pay her reasonable monthly maintenance.
Both the applicant and the respondent filed affidavits in support of their respective applications” one by the applicant and four in all by the respondent. There was as well an affidavit filed by one Mr. Roque Marin, a licensed surveyor, in support of the respondent's prayer for a partition of the land in issue in this case.
At the material times of the parties' respective summons in this matter, and presumably up to date of this judgment, they were married. I have not been advised otherwise. Nor has the Court been informed of any divorce proceedings between the parties. The parties' marriage was solemnized on 9th December 2000 in the Methodist Church in Belmopan. But the parties had each been married to other persons before. Quite exactly when they first met is not clear; but met they did; and this took place when the applicant, Mr. King, was posted from Barbados to Belize as the country manager for then Barclays Bank, from 1994 to 1998. The respondent, Ms. Aguilar, was also at the time, working for the said Barclays Bank as a supervisor. (I have in this judgment referred to the respondent who is really formally Mrs. King as Ms. Aguilar, her maiden name).
At the time of the parties' marriage in December 2000, Mr. King had been posted back to Barbados as the senior manager of Barclays Bank stationed at its head office in Barbados. Mrs. King gave up her own job with the bank in order to go live with Mr. King in Barbados as his wife. There they lived as husband and wife from 2000 to November 2003, when they returned to Belize. Between Christmas 2003 and the New Year 2004, the relationship unfortunately, deteriorated between the parties. Finally on 10th January 2004, Mr. King moved out of the home the parties had occupied as their matrimonial home in Belize on their return from Barbados. This house is No. 24A St. Joseph Street, Belize City, and is owned by Ms. Aguilar.
Since moving out, Mr. King, the applicant, has not returned. There are no children from the marriage.
I have recounted, in brief, the relationship between the parties because it is pursuant to it that Ms. Aguilar has, in her separate summons, prayed this court for an order of maintenance against Mr. King. More on this later.
But for now I turn first, to the property, the disposition of which is in contention between the parties.
The land that is in contention between the parties is said to comprise in total some 6.35 acres. It is situate in the Belmopan Registration Section and is Block No. 20 of Parcel No. 3437.
The land itself was bought in 2000. There is no agreed position between the parties as to how the purchase price for the land was provided. Mr. King states in paragraph 4 of his affidavit that
“The land was purchased for $87,000.00 with a loan from Barclays Bank PLC for $75,000.00 and the fees and balance of the purchase price were paid from my account. I have been meeting all loan installments, land taxes and costs of upkeep since the land was acquired. The land was charged to Barclays to secure the repayment of the loan.”
Mr. King exhibited a copy of the charge to secure the loan by Barclays.
Ms. Aguilar on the other hand states in paragraph 9 of her first affidavit that –
“9. In the year 2000 the applicant (That is Mr. King) and I decided to purchase the property jointly. The land is registered in our joint names as evidenced by Land Certificate No. 6750/2001 dated 18th September 2000 for Parcel 3437, Block 20 in the Belmopan Registration area.”
She further however states in paragraph 4 of her third affidavit that:
“4. Payments on the loan from Barclays were met by petitioner (sic) (no doubt referring to Mr. King) because he told me that his wife will not work and that he wanted me to be a homemaker and to cater to him exclusively.”
It is therefore reasonable to conclude that Mr. King contributed substantially if not exclusively the purchase price of the land. But the undisputable fact, which is common ground between the parties, is that the land was registered in the joint names of both Mr. King and Ms. Aguilar and pledged jointly by them, as chargors, to secure the loan by way of a mortgage in favour of Barclays Bank: see in particular Exhibit T.K. 1 of Mr. King's affidavit.
It is, also, not in dispute between the parties that the land itself is subject to the provisions of the Registered Land Act — Cap. 194 of the Laws of Belize, Rev. Ed. 2000. Although for the purposes of her application, Ms. Aguilar relies on the provisions of the Trusts Act — Cap. 202 of the Laws of Belize.
However, on the disposition of the land, the parties have taken diametrically opposed positions, which simply put can be stated thus: to sell and distribute equally between them the proceeds realised from such sale, after payment of the mortgage on the land; or simply to partition the land in almost equal halves between them.
The former position was vigorously contended by Mr. Andrew Marshalleck, the learned attorney for Mr. King, while the latter course, that is to partition the land, was equally vigorously supported by Ms. Lois Young SC, the learned attorney for Ms. Aguilar.
The question for resolution on the respective applications of the parties in relation to the land is whether to sell it or partition it.
The applicant, Mr. King, in respect of the land has moved the court (to order a sale) pursuant to section 16 of The Married Women's Property Act — Cap. 176 of the Laws of Belize, Rev. Ed. 2000. He seeks first a declaration that under this section of the Act he is beneficially entitled to one half share or interest in the land in issue; and secondly, that the land in question be sold and that the net proceeds of sale after payment of the sum due under a mortgage with First Caribbean International Bank (evidently the successor of Barclays Bank), be divided equally between him and the respondent, Ms. Aguilar.
The respondent, Ms. Aguilar, in respect of her application concerning the land, has moved the court under sections 58(1)(a)(v) and 58(1)(d) of the Trusts Act.
I listened with great care to the arguments and submissions, including the written submissions by both Mr. Marshalleck for Mr. King and Ms. Young SC for Ms. Aguilar, which I read with care, and carefully considered the affidavit evidence of the parties and I conclude that on that evidence and the applicable law, I must ineluctably, accede to Mr. King's application in respect of the land.
For understandable sentimental reasons such as the residence of her mother and her brother, David Aguilar, in Belmopan, which is not too far from the location of the land, and the fact that she had hoped to live in the area on her retirement, Ms. Aguilar is desirous that the land be partitioned so that she could still build her own retirement home on her own portion of the partitioned land which she seeks. But this partition, in my view, can only be done if the other co-trustee were agreeable.
It is an undeniable fact that the parties though married, do not live together any more and the land itself on which there is no building or residence could hardly be regarded as the matrimonial home. Yes, both parties had, in happier times, contemplated building their matrimonial and retirement home on the land. But this did not...
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