Divorce à l’amiable…Paul Jones ne veut pas que son ex-épouse porte son surnom



En attendant le dénouement du main case et du Plaint with Summons logés en Cour Suprême, Safinaz Beatrix Sahebdjam ne pourra pas continuer de porter le surnom de son ex-mari, Paul Tobin Jones, le CEO de Lux Island Resorts Ltd. En effet, la juge Nirmala Devat, siégeant en Chambre, a rendu interlocutoire l’ordre intérimaire qu’elle avait émis pour interdire à Safinaz Beatrix Sahebdjam de porter le surnom de son ex-mari. Les deux ont obtenu le divorce à l’amiable. Ce divorce a été prononcé de façon permanente le 26 juin 2015. Le 30 mars 2016, une « plaint with summons » fut servie sur Paul Jones dans laquelle Safinaz Beatrix Sahebdjam demande à la Cour Suprême la permission de continuer à faire usage du surnom de son ex-mari et de se faire appeler Mme Jones ou Mme Sahebdjam-Jones. Le 1er avril 2016, Paul Tobin Jones a fait appel à la juge en Chambre pour faire échec à la démarche de son ex-epouse. Après avoir émis un ordre intérimaire, la juge Nirmala Devat a rendu cet ordre interlocutoire.

(source: Le Quotidien)

IN CHAMBERS
THE SUPREME COURT OF MAURITIUS
In the matter of:-
Mr Paul Tobin JONES
Applicant
v
Ms Safinaz Beatrix SAHEBDJAM
Respondent

JUDGMENT
The applicant and the respondent were a married couple until 26 March 2015 when they got divorced by mutual consent. At the time of their divorce, the parties entered into a written agreement, assisted by their respective Counsel, mostly in respect of financial arrangements and distribution of their moveable and immoveable properties in Mauritius and abroad, which agreement was duly homologated by the Judge of the Family Division of the Supreme Court. The provisional decree of divorce was made permanent on 26 June 2015.

On 30 March 2016, the applicant was served a plaint with summons in which the respondent is seeking the authorisation of the Court for her “to continue to make use of the name and be referred to as Mrs “Jones” or “Sahebdjam-Jones” and “to identify herself as Mrs “Jones” or “Sahebdjam-Jones”.”

On 1 April 2016, the applicant sought an order in the nature of an interim injunction:
(i) restraining and prohibiting the respondent from using the name “Jones” or “Sahebdjam-Jones” or “Jones-Sahebdjam” in any combination whatsoever pending the determination of the plaint with summons and/or pending the determination of a main action which the applicant intended to lodge; and (ii) directing the respondent to stop unlawfully making use of the name “Jones” in any manner whatsoever, verbally or in writing.

I declined to grant the prayer but instead ordered a summons to issue calling upon the respondent to appear before me on 4 May 2016 to show cause why the application should not be granted. On 4 May 2016, upon certain representations made to me by learned Senior Counsel for the applicant, the interim order was granted pending the determination of the present matter. On 2 June 2016, the interim order was varied, upon a motion of Counsel for the respondent, to allow the respondent to make use of “travel documents” issued in the name of Sahebdjam-Jones and her Mauritian Citizenship Certificate pending the determination of the present matter.

I am now in presence of all affidavits filed by the parties and the respective arguments of their Counsel.

The reasons advanced by the applicant in support of the present application are essentially that:

1. The respondent has been unlawfully using his name after the permanent dissolution of their marriage in June 2015 without his prior knowledge, approval or with the Court’s authorisation, in breach of the provisions of article 249 of the Code Civil.

2. After the pronouncement of the permanent decree of divorce, he has consistently objected and ensured that all documents pertaining to the dissolution of the marriage should bear the respondent’s maiden name. By unlawfully using his name, the respondent is flouting and is acting in contempt of the homologated agreement and the provisions of article 249 of the Code Civil. 3. The respondent should have resumed her maiden name after the pronouncement of the final decree of divorce on 26 June 2015 and she should have caused the necessary amendments and rectifications to be made to all her documents bearing the name “Jones”.

4. He is the Chief Executive Officer of Lux Island Resorts Ltd, a publicly quoted company on the Stock Exchange of Mauritius. He is also responsible for overseeing all operations, business strategies and implementation and execution of contracts worldwide on behalf of Lux Island Resorts Ltd, Lux Resorts and Hotels and Lux Hospitality Ltd. His professional activities and social contribution have caused him to be extremely well known in the Mauritian Community as well as internationally. His name is attached to the notoriety and reputation which he has built over forty-eight years in the hospitality industry worldwide.

5. The contents of the respondent’s plaint with summons disclose that the respondent is using his name and is trying to seek the authorisation of the Court to continue using his name for the sole purpose of using it as a brand in Mauritius. This is causing and will cause him great, irreparable prejudice, inconvenience, distress and is furthermore detrimental to his professional and personal life for which damages is an inadequate remedy. The respondent has no justification in using his name and her affidavits and plaint with summons do not disclose any “intérêt particulier” whatsoever entitling her to call herself by the name of “Jones”. Furthermore, the balance of convenience is in his favour and unless restrained by an order of the Judge in Chambers, the respondent will continue and intends to continue the unlawful use of his name to his prejudice.

In reply, the respondent avers that:
1. She was not aware that the applicant would not consent to her retaining the name “Jones” after their divorce as there was no clause in the agreement reached by them and homologated in March 2015 by the Judge of the Family Division prohibiting her from using the name “Jones” and neither did the Judge inform her of the provisions of article 249 of the Code Civil nor did he make any pronouncement thereon.

2. She is registered as a citizen of Mauritius since 30 January 1986 under the name “Safinaz Beatrix Sahebdjam-Jones” as evidenced by her Certificate of Registration and as such is entitled to use the name “Jones”. She holds a British and a Mauritian passport issued in the name of “Mrs Sahebdjam-Jones”. Other documents such as her utility bills, bank accounts, cheque books, credit cards, car insurance, visa applications for the USA and share certificates are in the name of “Mrs Sahebdjam-Jones”. The name “Sahebdjam-Jones” has become an integrated name in her private and business life. All these would constitute “un intérêt particulier” entitling her to call herself by the name “Jones”.

3. There is no urgency in the application and the balance of convenience is on her side.
The use of a spouse’s surname by the other spouse after the marriage has been dissolved is governed by article 249 of the Code Civil which provides:
«A la suite du divorce, chacun des époux reprend l’usage de son nom.»
However, there are two exceptions to the above general principle as catered for in paragraphs 2 and 3 of article 249 of the Code Civil which read: «Toutefois, dans le cas prévu à l’article 235, la femme a le droit de conserver l’usage du nom du mari lorsque le divorce a été demandé par celui-ci.
Dans les autres cas, la femme pourra conserver l’usage du nom du mari soit avec l’accord de celui-ci, soit avec l’autorisation du juge, si elle justifie qu’un intérêt particulier s’y attache pour elle-même ou pour les enfants.»
The divorced wife, therefore, may retain her husband’s name after the dissolution of the marriage in two circumstances, firstly where the marriage has been dissolved on the petition of the husband for “rupture de la vie commune” as provided for under article 235 of the Code Civil. Secondly where the wife either obtains the husband’s consent or the authorisation of the Court if she justifies “un intérêt particulier”.

In the present case, it is not disputed that the parties were divorced by mutual consent. As such, by virtue of paragraph 3 of article 249, the respondent may retain the name “Jones” either with the applicant’s consent or in absence of such consent with the Court’s authorisation on her establishing “un intérêt particulier”. On the facts averred in the affidavits, it cannot be disputed that in the agreement reached by the parties before the Family Division of the Supreme Court, no agreement was reached between the parties as to the respondent’s entitlement or not to retain the applicant’s surname.

Be that as it may, it would appear that the applicant did not acquiesce to the respondent calling herself by the name “Jones”. This was made obvious by the applicant in his letter dated 2 September 2015 to the French notary – who was in charge of the drawing up of the deed of transfer in respect of a property in Paris which the parties had acquired during the subsistence of their marriage and which they had agreed before the Family Division of the Supreme Court of Mauritius would be transferred in the name of the respondent – when he objected to the respondent being referred in the said deed by the name of “Mrs Safinaz Sahebdjam-Jones”.

In view of the clear provisions of paragraph 3 of article 249, the respondent, who upon her marriage with the applicant had assumed latter’s name, is precluded, upon the dissolution of the marriage, from retaining the applicant’s name except in the two circumstances provided for in paragraph 3 of article 249, that is with the applicant’s approval – which she does not have – or the Court’s authorisation – which as yet she also has not
obtained.

I am satisfied from the affidavits filed that the applicant has established that he has an arguable claim to the right he seeks to protect. As the respondent does not have the consent of the applicant, until and unless she obtains the Court’s authorisation to use the name “Jones”, she would be infringing the provisions of article 249 if she continues to call herself by that name. Now whether the grounds on which the respondent relies namely, that all her documents are in the name “Sahebdjam-Jones”; and that she is known in the business community and by her friends and families by the surname “Sahebdjam-Jones”; and this name has now become an “integrated name” in her life would constitute “un intérêt particulier” which would justify her to retain the right to use the patronymic name of her former husband is a matter for the factual determination of the trial Court which will be called upon to give a decision. It is not for me, sitting as Judge in Chambers to make any pronouncement and prejudge this issue. I have merely to see in all objectivity whether there is a strong or fair prima facie and bona fide case in favour of the applicant (vide Sahaduthkhan v Mrs Moudhoo & Anor [1971 MR 51]).

Having satisfied myself that the applicant has a serious question to be tried, I now have to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief. It goes without saying that my decision in granting or refusing the injunctive relief prayed for will necessarily entail a certain degree of inconvenience to one or the other party. The extent to which this inconvenience to each party would be incapable of being compensated in damages in the event of his succeeding at the trial is always a significant factor in assessing where the balance of convenience lies (vide paragraph 956 of Halsbury’s Laws of England, 4th Edition, Vol. 24).

In deciding whether damages would be an adequate remedy to the applicant if the order prayed for is refused and he was to succeed in the main case which he has entered against the respondent, I have taken into consideration that the applicant has, on 17 October 2016, lodged before the Supreme Court an application by way of motion for a perpetual injunction restraining and prohibiting the respondent from using the name “Jones”, “Sahebdjam-Jones” or “Jones-Sahebdjam” in any combination or in any way whatsoever. Damages is not amongst any of the orders prayed for by the applicant. Bearing in mind the nature of the applicant’s complaint and the “main case”, I agree that this is the sort of case which is not ordinarily compensable by an award of damages.

On the other hand, the respondent says she stands to suffer great inconvenience, disadvantage and prejudice if the order prayed for is granted inasmuch as she will not be in a position to use any of the documents issued in the name “Sahebdjam-Jones”. Particulars of those documents have been given in her affidavits. The respondent cannot, however, claim to have a better right than the applicant.

Furthermore, her averments that she was not aware of the applicant’s objection to her being referred to as “Mrs Jones” or “Mrs Sahebdjam-Jones” cannot stand in view of the applicant’s letter dated 2 September 2015 to the French notary. In view of that letter – which is in connection with the transfer of the Paris apartment in the name of the respondent – the latter is deemed to have been made aware, as far back as September 2015, of the applicant’s stand regarding her retaining the applicant’s name.

As rightly pointed out by learned Senior Counsel for the applicant, it was the responsibility of the respondent to take the necessary measures in connection with those documents, soon after the divorce was made permanent. The fact that she may not make use of those documents is no ground for depriving the applicant of his prayer for injunctive relief. In any event, as rightly pointed out by learned Senior Counsel, causing the necessary changes/rectifications to be made to those documents cannot prove to be such a difficult or impossible task to the respondent.

There is the issue of “urgency” which, according to learned Counsel for the respondent, the applicant has failed to establish. I do not agree with the arguments of learned Counsel inasmuch as the urgency to restrain the respondent by means of injunctive relief from using the name “Jones” arose when it became apparent to the applicant that the respondent was infringing article 249 of the Code Civil. I am therefore satisfied that the applicant has showed that there is “urgency” warranting the intervention of the Judge in Chambers.

On the whole, I consider that the applicant has been able to advance compelling reasons to establish that it would be just and convenient that the interim order issued on 4 May 2016 be made interlocutory pending the determination of either the applicant’s main case and/or the plaint with summons lodged by the respondent.

The respondent is accordingly restrained and prohibited from using the name “Jones” or “Sahebdjam-Jones” or “Jones-Sahebdjam” in any combination whatsoever, verbally or in writing and this, pending the determination of the plaint with summons lodged by the respondent and/or pending the determination of the main action which the applicant has already lodged before the Supreme Court of Mauritius. The present order shall, however,take effect as from 30 November 2016, to give the respondent adequate time to cause the necessary changes to be made to those documents which bear the name “Jones”.

Costs to be costs in the main case.

I certify as to Counsel.

N. Devat
Judge

Posted by on Nov 17 2016. Filed under Faits Divers, Featured. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

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