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PHILLIPS v. ALLEYNE

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Citation # BB 1989 HC 1
Country Barbados
Court High Court
Judge Belgrave, J.
Subject Family law
Date January 9, 1989
Suit No. No. 247 of 1987
Subsubject De facto spouses - Property adjustment - Family Law Act, 1981.
Full Text Appearances:
Mr. Herbertson Arthur for the applicant.
Mrs. B. Walrond for the respondent.

BELGRAVE, J.: On July 15, 1987 the applicant applied to the High Court for the
following orders in accordance with the Family Law Act, 1981-29:

(a) that the respondent be ordered to leave the dwellinghouse of the applicant with
whom she lives without prejudice to any rights she may have arising out of any such
cohabitation with the applicant;

(b) that the Court order the applicant to pay the respondent the sum of $90.00 per
week as maintenance for the three children born to the respondent, namely Maria
Alleyne born June 17, 1979, Antonia Alleyne born May 16, 1980 and Remona Alleyne
born November 11, 1982 if the Court thinks that the said (end of page 1) sum was a
fit sum of money for him to pay as maintenance for the said three children.

... The questions which must be decided are whether on the evidence before me a
union other than a marriage has been established by the respondent; whether she
has directly or indirectly made a contribution to the property at 27 Mangrove Terrace,
St. Philip, and if so, what is the extent of that interest. The final question is whether
that property belongs to the applicant or to his mother Idaliah Philips as she has
stated.

I was not impressed with the applicant as a witness. A close reading of his affidavit
would show that from the outset he had set out to deny the fact that he had been
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8/26/2014 PHILLIPS v. ALLEYNE - CariLAW Search Results
cohabiting with Sandra Alleyne at any time before they had taken up residence at 27
Mangrove Terrace. He was on the attack before she had even fired a shot. His
mother Idaliah Phillips appears to have been the person who was advising him to
get rid of Sandra Alleyne and in my view she seems unduly anxious to have the
claim of Sandra Alleyne defeated.

I regard Idaliah Phillips as an utterly unreliable person who deliberately set out to
establish that she is the owner of the house at 27 Mangrove Terrace, St. Philip in the
face of solid evidence to the contrary from Stanton Clarke and the applicant Leaford
Phillips himself. Stanton Clarke said that the said house belonged to the applicant.
That he was responsible for its construction. Throughout the applicant's affidavit he
referred to the house as his house and stated that Sandra Alleyne did not make any
financial contribution to its construction. He said that the only person who helped
him with the house was his mother. He did not state in his affidavit that it belonged
to her. In his evidence before me, however, he shifted his (end of page 2) position
and said that the house belonged to his mother.

Idaliah Phillips said that she spent some $25,050 on the house at St. Philip but she
was unable to produce any convincing evidence other than words to substantiate
her story. I reject her testimony absolutely. On the evidence I find as a fact that the
applicant and the respondent cohabited at the home of the respondent's mother
from 1979 until 1982 and thereafter they cohabited at the home of the applicant's
mother from 1982 until 1984.

The parties cohabited at 27 Mangrove Terrace from 1984 until July 1987 when these
proceedings were instituted. I am satisfied that the relationship between the parties
was a serious relationship and that there was a family commitment to each other
during the existence of that union.

The question which falls to be determined is whether a union existed between the
parties as defined by the Family Law Act, 1981 notwithstanding the fact that the
period during which the parties were found to have lived together as man and wife
was split up between three separate homes.

This question arose before me for decision only very recently in the case of Weekes
v. Price (1989) 24 Barb. L.R. In that case I reviewed the case of in Re Fagan
Deceased (1980) FLC 90-821 p. 75 and Alleyne v. Dorant (1986) 21 Barb. L.R. 298.

The decision of Jacobs, J. in Re Fagan was followed by Williams, C.J. in the Nancy
Alleyne's case. I have no hesitation whatsoever in following and being guided by the
principles enunciated in those two cases. I decided that unbroken cohabitation
between the parties at more than one home during a period of 5 years or more is
capable of satisfying the requirements of the Family Law Act. See Weekes v. Price
cited above. (end of page 3)

In the light of those authorities I am of the opinion that a union as defined by the
Family Law Act had been proved by the respondent. The evidence also shows that
the title deeds to the dwellinghouse at No. 27 Mangrove Terrace is in the name of
the applicant Leaford Phillips. I have seen the Tax bill for the said property and the
valuation placed on it for the purpose of taxation is $115,000. No other valuation had
been produced. The evidence of the applicant is that there is now no mortgage
outstanding on that dwellinghouse.

It is true that the direct financial contribution of the respondent was small. She was
unable to work and this was due to the fact that she had three infant children to look
after. Her place was in the home. She provided meals for the applicant, washed his
clothes and made him comfortable in bed for some nine years.

During the first five years of their relationship he was able to work and save his
money which was used in purchasing the land at St. Philip on which the
dwellinghouse was subsequently built. The respondent was content to live with him
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8/26/2014 PHILLIPS v. ALLEYNE - CariLAW Search Results
and three children in cramped conditions in order that he could save money. This is
to her credit and she must be compensated for this as a mother and homemaker.
This constitutes the indirect contribution contemplated by the Family Law Act. The
circumstances of this case warrant that she be paid a lump sum so that she may be
able to acquire a suitable home in which she can bring up her three children.

The difficulty which faces me now is to measure her share in monetary terms. What
sum of money would fairly represent her share so that it would be fair and equitable
to both parties. The Court is enjoined by the Family Law Act to do only what is just
and equitable in the circumstances. (end of page 4)

My attention was drawn to the case of Defoe v. Brathwaite (1988) 23 Barb. L.R. 401
which was decided by Williams, C.J. on 19th October, 1988. In that case the period
of the relationship was 14 years from August 1972 to January 1987 during which
time the applicant in that case assisted the respondent in running a business and
with the construction of an apartment building called 'Sandy Cove'. In seeking to
arrive at a figure which was just and equitable the Learned Chief Justice referred to
certain sections of the Family Law Act:

"Section 57 provides inter alia, that in proceedings in respect of property of either

party to a union, the Court may make such order as it thinks fit altering the interests
of the parties in the property. The Court is enjoined not to make an order under the
section unless it is satisfied that in all the circumstances it is just and equitable to
make the order. The section provides that in considering what order should be
made under the section, the Court shall take into account inter alia (a) the financial
contribution made directly or indirectly by a party to the acquisition, conservation or
improvement of the property, or otherwise in relation to the property (b) the
contribution made directly or indirectly to the acquisition, conservation or
improvement of the property by a party, including any contribution made in the
capacity of homemaker and the matters referred to in section 53(2) in so far as they
are relevant.

Section 52 (2) (j) enables the Court to take into account the duration of the union and
section 53(2)(n) any fact or circumstance that in the opinion of the Court the justice
of the case requires to be taken into account.

I am satisfied that in the circumstances of this case it is just and equitable to make
an order under this section.

In my opinion the duration of the union is an important factor and the justice of the
case demands that I take into consideration the assistance which the applicant
gave in the business the proceeds of which contributed significantly to the materials
and items used in constructing the building. Her unpaid presence at the business
premises would have reduced the pilfering about which the respondent was so
worried and her unpaid labour would have saved on the (end of page 5) operating
expenses. More money would thereby have been made available for the purpose of
constructing the building.

My order is that the interest of the parties in the apartment building Sandy Cove are
altered so as to give the applicant a three tenths (30%) share in the building."

It should be noted that `Sandy Cove', the apartment building 30% of which was
awarded the applicant by the Learned Chief Justice was a four apartment building at
Enterprise, Christ Church. The judgment did not disclose what value was placed
upon that property but that it was a property of some substantial value may fairly be
assumed. She got 30% of that value whatever it was. She did not bear any children
for the respondent however.

In the instant case, I appreciate that the duration of the union between the parties
was nine years. The respondent assisted the applicant indirectly during those nine
years. He was always at work except when he was injured. She said that she
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8/26/2014 PHILLIPS v. ALLEYNE - CariLAW Search Results
nursed him back to good health during that period.

In all the circumstances of this case I am of the opinion that $25,000 would
represent the share which the respondent has in the dwellinghouse at No. 27
Mangrove Terrace. This sum should be paid to the respondent as a lump sum. The
respondent is entitled to remain in the said dwellinghouse until she is paid that
sum by the applicant.

The maintenance order of $25.00 per week for each of the three children is to
remain in force whilst the respondent and the said children reside at 27 Mangrove
Terrace, St. Philip and thereafter the maintenance for the three children will be at the
rate of $30.00 per week.

The respondent is entitled to her costs to be agreed or taxed and she has liberty to
apply.

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