Court of Appeal
Civil Appeal No. 10 of 1992
12th February, 1993
KENNETH ST. L. HENRY, P.
SIR LASCELLES ROBOTHAM, J.A.
P. TELFORD GEORGES, J.A.

Matrimonial - Appeal by Respondent husband against order made by Judge upon application for maintenance for petitioner wife and a child of the family - Lump sum payment ordered - Jurisdiction to do so questioned - Orders for maintenance - Section 151, Matrimonial Causes Act, Chapter 82 - Judge has no power to order lump sum payment - Evidence as to means - No evidence to substantiate allegations of petitioner wife as to income and assets of respondent husband - Nothing on record to indicate by what process of reasoning judge arrived at decision as to appellant's ability to meet the terms of the order - Appeal allowed - Matter remitted to Court below for a rehearing on the merits.

J U D G M E N T

On 6th March, 1992 the Petitioner/Respondent Grace Genus obtained a decree nisi against her husband Cyril Genus, and was granted custody of Zoie the child of the marriage.

On 17th June she filed an application for Maintenance of herself and the child and this was heard before a Judge on 18 September, 1992. The only evidence at the hearing was that of the petitioner and her husband Cyril Genus. Upon conclusion of the hearing the Judge made the following order -

"1. That the Respondent do pay or cause to be paid to the Petitioner the gross sum of $3,000.00

2. That the Respondent do pay or cause to be paid to the Petitioner (i) for the maintenance of herself the sum of $300.00 per month during their joint lives until further order; and

(ii) for the maintenance and education of ZOIE the sum of $100.00 per month until further order each of the said sums to be paid on the 1st day of every calendar month, the first hereof to be on October 1st, 1992.

3. That the Respondent pay the Petitioner her costs."

The husband Cyril Genus duly filed an appeal and the grounds are as follows:

"(1) The decision complained of was erroneous in that it was based on a wrong principle of law.

(2) The Decision cannot be supported having regard to the evidence.

(3) The learned trial Judge misdirected himself in ordering a lump sum payment inasmuch as the Court had no jurisdiction to order the payment of a lump sum.

(4) Alternatively, the learned trial Judge misdirected himself in ordering a lump sum payment in that the means of the Appellant made it wholly inappropriate to so order.

(5) The learned trial Judge misdirected himself in hearing the Respondent's application for maintenance while there was (and remains) pending before the Court an application by the Respondent for a declaration that the Respondent was the owner of a half share in the former matrimonial home."

The main thrust of the appeal as contained in grounds 3 and 4 was the lack of jurisdiction on the part of the Judge to make an order for the payment of a lump sum by the Appellant to the Respondent.

The power of a Judge to make orders for maintenance is conferred by section 151 of the Matrimonial Causes Act Cap. 82. There is provision there for a gross sum of money to be secured but there is no provision for the making of a lump sum order. In Latey on Divorce 13th edition (1945) the law is stated thus -

"The Court has no power to order a husband to pay a lump sum by way of maintenance or to order that a lump sum be secured to her or to the issue of the marriage for a longer period than her own life."

That was the position which existed in the United Kingdom prior to the passage of the Matrimonial Causes Act 1973 but now under the provision of sec. 23(l)(c) of that Act, upon the granting of a decree of divorce, nullity or judicial separation the Court can make an order that either party in the marriage shall pay to the other such lump sum or sums as may be so specified.

This provision has not yet been enacted in Belize and the Judge therefore had no power in this case to order the payment of a lump sum by the Appellant to the Respondent. Ground 3 of the appeal must therefore succeed.

The alternative allegation in the grounds of appeal was that the means of the Appellant were wholly inappropriate to the order made. There was conflict of evidence as to the means of the Appellant. The wife estimated the husband's income as $30,000 per annum. The husband states that in the previous year he had earned $9,000. This was a substantial variation. Further the allegation of the wife that he had accounts in Barclays Bank and Belize Bank was not substantiated by any documentary or other evidence.

Upon the conclusion of the evidence the Judge made the order but there is nothing to indicate by what process of reasoning he arrived at his decision as to the Appellant's ability to meet the terms of the order.

In all the circumstances we consider that the appeal should be allowed and the matter remitted to the Court below for a rehearing.

As to ground 3 of the appeal there is nothing in the record to indicate that the Judge was told of any pending proceedings for the division of the matrimonial home. We consider however that on the rehearing it is not a matter which should not be overlooked.

Accordingly the appeal is allowed and the matter is remitted to the Court below for a rehearing on the merits.

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