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Tonga v Halapua [2004] TOLawRp 70; [2005] Tonga LR 59 (21 June 2004)

IN THE SUPREME COURT OF TONGA

Tonga

v

Halapua

Supreme Court, Nuku'alofa
Ward CJ
FD 107/2002

14 March 2004; 21 June 2004

Matrimonial property – determination of financial provision – orders made

The full facts are set out in the grant of decree nisi at Tonga v Halapua [2005] Tonga LR 35.

Held:

1. The Court ordered that possession of the town allotment of the petitioner remain with the wife respondent. It further ordered that the name of the landlord in the lease agreement be altered to that of the respondent, that the tenant be notified and that all the terms otherwise should be unaltered. The respondent should have full rights to the proceeds and to negotiate any future lease of the premises. With that went the responsibility for the maintenance of the property.

2. The Court had the power to order that the tax allotment of the petitioner should also be in the possession of the respondent. However the Court was not satisfied that the use of the allotment should be given to the respondent or her son. Also the use of the allotment by the petitioner's sister made it difficult for her to be evicted and the court should not such an order without knowing more of their circumstances.

3. The Court considered that it was appropriate to charge some rent for the 'api and ordered that the petitioner pay the respondent a sum in addition to the rental from his town 'api of $2,000 per annum in consideration of the use of his 'api by his sister. The petitioner was liable for the payment and it was due each year on the last working day of August each year.

4. The terms of the order were stayed pending appeal. If no appeal is pursued, the terms would have retrospective force to the date of ruling.

Ruling

Following the grant of a decree nisi to the husband in this case, I adjourned determination of financial provisions to chambers. I have received affidavits and was ready to give my ruling when counsel for the respondent wife, who had not appeared at the hearing of the petition, sought leave to appeal the original order. I gave leave and did not, therefore, give my ruling. Having now heard the basis of the appeal, I consider I should still briefly state the conclusion I had reached but stay the order pending the appeal.

In cases of this nature, the information deposed is frequently coloured and distorted by the attitudes of the parties. This case is no exception. The respondent has claimed her husband had assets he denies possessing and the petitioner, whilst being willing to provide for his wife in terms of rent income, feels she should be able to support herself by work and therefore the support he offers is sufficient.

The respondent is living in a house on an 'api held by her brother who is at present resident abroad. Before her husband went to 'Eua, the family were living there. The children of the marriage have all reached their majority but two still live with her. The youngest daughter is studying at the USP in Fiji and has a child, which is left with the respondent also. The respondent is restricted in any chance to earn because of the need to look after the small child.

The petitioner has given her the rental income from his town 'api in Nuku'alofa. That amounts to $900 per month. Her claim is that the rent is not paid regularly and it should, for properties in such a central position, be higher. Both those matters are, of course, at present within the control of her husband.

She also asks for the control and possession of the petitioner's tax allotment, which is, at present, being used by his sister and her family. The respondent claims that the petitioner has the right to a further allotment held by his widowed mother.

The petitioner responds that he does not have a right to a second tax allotment His mother passed away in 1999 and, in any event, did not hold an allotment. As regards his own tax allotment, he says that, when he inherited that allotment from his father, his sister was already living on it as the result of permission given by their father whilst he was still alive. He says that his son, as his heir, should wait patiently for his time to inherit the tax allotment. He questions why his wife should not also use the tax 'api of the brother at least whilst he is abroad.

I am satisfied that the offer by the husband of the rental income from his town allotment is a sensible and reasonable one in the light of his present circumstances. However, I understand the concern of the wife that she still has no control over that property now or in the future. I order that possession of the town allotment of the petitioner shall remain with the respondent. I further order that the name of the landlord in the lease agreement shall be altered to that of the respondent, that the tenant be notified and that all the terms otherwise should be unaltered. The respondent shall have full rights to the proceeds and to negotiate any future lease of the premises. With that will go the responsibility for the maintenance of the property.

I have no doubt the court has the power to order that the tax allotment of the petitioner shall also be in the possession of the wife. However, in this case, I am not satisfied that the use of the allotment should be given to the respondent or her son. I accept that the use by the petitioner's sister makes it difficult for them to be evicted and I am far from sure that the court should make such an order without knowing more of their circumstances.

However, I consider it would be appropriate to charge some rent for the 'api. I order that the petitioner shall pay the respondent a sum in addition to the rental from his town 'api of $2,000 per annum in consideration of the use of his 'api by his sister. Whether he asks his sister to pay that or pays it himself is no part of this order. The petitioner is liable for the payment and how and whether he recovers it is a matter for him. The rental payment shall be due each year on the last working day of August each year.

I make no further orders save that the terms of this order shall be stayed pending appeal. If no appeal is pursued, the terms shall have retrospective force to the date of this ruling.