S

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith, Esq,Jurats Le Breton,Marett-Crosby
Judgment Date22 June 2011
Neutral Citation[2011] JRC 119
Date22 June 2011

[2011] JRC 119

ROYAL COURT

(Samedi)

Before:

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Breton and Marett-Crosby.

IN THE MATTER OF S

Between
A
Petitioner
and
B
Respondent

Advocate M. E. Whittaker for the Petitioner.

Advocate N. S. H. Benest for the Respondent.

Authorities

Matrimonial Causes Act 1973.

White v White (2001) 1 A.C. 596.

Evans v Evans (1991) FLR 319.

Ancillary Relief Handbook, 7th edition by Roger Bird.

J v M [2002] JLR 330.

P-S v C [2006] JLR 463.

B v C [2005] JRC 169.

T v B [2008] JRC 077 A.

S v L and C [2009] JRC 044 A.

Marshall v Downes [2010] JRC 115 B.

Maskell v Maskell (2001) EWCA Civ 858.

Martin-Dye v Martin-Dye (2006) EWCA Civ 681.

MT v MT (Financial Provision – Lump Sum) (1992) 1 FLR 362.

D v D (Lump Sum: Adjournment application) (2001) 1 FLR 633.

A v C and B [2003] JLR N 27.

Roberts v Roberts (1986) 2 FLR 152.

Miller v Miller; McFarlane v McFarlane (2006) UKHL 24.

V v V (Financial Relief) (2005) 2 FLR 697.

N v N (Financial Provision: Sale of Company) (2001) FLR 69.

THE COMMISSIONER:

Introduction
1

This is the wife's application for ancillary relief following a divorce. The issues falling for determination are the wife's application for a lump sum and the quantum of her periodical payments. The parties agree that this is not a case where a clean financial break can be achieved.

2

We will set out the relevant factors as we find them. For the avoidance of doubt, in so far as the matters set out differ from the evidence of the husband, the wife or the two accountants, this is because we have preferred the evidence of another or because we consider that the documents produced confirm our findings of fact.

History of the marriage
3

The parties were married on 30 th August 1986 when the husband was 25 and the wife 24. It was a first marriage for both of them and there was no significant period of cohabitation prior to the marriage.

4

There are three children of the marriage, namely C, who is almost 21 years old, D, who is 14 years old and E, who is 13 years old.

5

Throughout the early years of the marriage, the wife worked full-time as a legal secretary and then as a marketing executive before reducing to part-time, moving to trust administration and latterly, compliance. By way of a joint decision she ceased paid employment in 2003, because the husband's income was sufficient to sustain the family.

6

When the parties were married, the husband was a police officer. He left the police force in 1987 and re-trained as an accountant. He eventually joined F Trust Company (“FTC”) in July 1997 as a client accounting manager. In 2001, he became a shareholder and director.

7

The parties started on the property ladder in 1991, when the wife's father gave them £25,000 to put down as a deposit on their first property. Properties were bought and sold until on 27 th August 1999, they purchased the former matrimonial home for £595,000 with an initial mortgage of £360,000. With further borrowings, substantial work was carried out on this property.

8

The husband described the parties as working well as a team, with the wife as the home-maker in every sense and the brains behind the house improvements, at which she was very skilful. She left the finances to him.

9

In addition to what had become a luxury home, in later years the parties had expensive cars, a boat, horses, paid help and luxury family holidays. The children were privately educated. Both parties acknowledge that they lived beyond their means, accumulating credit card and other debts which had to be repaid from borrowings taken out from the properties or elsewhere.

10

In June 2008, the husband cashed certain insurance policies netting some £84,000, because he had become aware that they were not required to support the mortgage. In the same year, the mortgages were changed to interest only, in order to assist with the family's cash flow.

11

The parties separated on 28 th February 2009, when the husband moved out of the former matrimonial home into rented accommodation.

12

On 18 th September 2009, the husband purchased a property (G) in his sole name for £1,060,000, funded by two mortgages totalling 100% of the purchase price. The first mortgage of £700,000 was interest only repayable over 16 years and the second was £360,000 repayable over 4 years with capital repayments of £40,000 in the first year and £108,000 in each of the remaining three years.

13

The parties sold the former matrimonial on 20 th August 2010 for £1,700,000. After repayment of the mortgages, the wife utilised the balance of £937,933.87 with the husband's consent for the purchase of a property (and certain contents) in her own name, H, where she lives with the three children. The husband has also paid off her credit card debts so that she was established in her new home debt free.

Procedural history
14

The wife filed the divorce petition on 7 th May 2010 and the decree nisi was pronounced on 30 th June 2010.

15

On 19 th July 2010, the Deputy Registrar made interim orders which resulted inter alia in the husband paying a total of £127,600 per annum for the wife and the children out of his income in that year of £312,824 – 40.8% of his income for the wife and children and 59.2% to him. Those orders included a payment of £2,500 per month towards the wife's legal costs.

16

The hearing in relation to ancillaries took place before us on 28 th, 29 th, 30 th and 31 st March, when we heard evidence from the husband, the wife and the two accountants. At the end of that hearing, the Court granted the husband's application to reduce the maintenance payable by the husband to the wife of £8,000 per month to £5,500 per month pending our decision, i.e. that element that was earmarked as a contribution to the wife's costs. Final submissions were made on 4 th May when the judgment of the Court was reserved.

17

We also had before us an application by the husband for the decree to be made absolute, which application is opposed by the wife.

Section 25 criteria
18

It is a matter of trite law that the Jersey Courts have regard to the criteria set out in section 25(2) of the Matrimonial Causes Act 1973. First consideration is given to the provision of homes for the parties and to the welfare of minor children. In this case each of the parties have homes and they have agreed the arrangements for the children as set out in the terms of proposed undertakings and orders handed to us on 4 th May 2011. The husband has the financial responsibility for their maintenance, education and health cover, but there is no necessity for the purposes of this judgment for us to go into those arrangements, other than to make two points:-

We now turn to the remaining criteria.

The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of an incapacity any increase in that capacity which it would, in the opinion of the Court, be reasonable to expect a party to the marriage to take steps to acquire

  • (i) We calculate that the total cost to the husband for the maintenance and education of the children is currently £44,709 per annum. For the assistance of the parties we arrived at this figure by taking the maintenance for D and E (£2156 per month), the school fees for E (£384.75 per month), school trips (£70 per month), pocket money (£40 per month) and additional food when the husband has contact (£175 per month) which comes to £2825.75 per month to which we have added a monthly allowance for C of £900 all of which when added together comes to £3725.75 per month or £44,709 per annum.

  • (ii) The eldest child C is about to start on a year out during which he hopes to be working, but he may return to a course which, if no grant is forthcoming, may result in a material increase in the husband's obligations in terms of fees, rent and accommodation. Whilst D is leaving Victoria College for Hautlieu this year, it needs to be borne in mind that both he and E may well attend university in due course, with the commensurate costs that will inevitably fall upon the husband.

19

The wife owns H free of charges which she purchased for £887,500 which the parties agree is its value. She has household contents valued at £7,970 and at the commencement of the hearing some £4,000 in her bank account. She drives an Audi Q5, which is in the name of the husband, but it is agreed that this will be transferred to her. It has been valued at £23,000.

20

The husband made it clear at the hearing that he did not expect the wife to attempt to get back into the finance industry after an eight year gap. In March of this year, the wife found part-time work as a stable hand looking after horses in full-time livery. The stables are close to her home and she can take the children there. She is paid £10 an hour and the hours are flexible. The work is seasonal, but she might be able to work out of season and thus be able to earn some £12,000 per annum gross. She does not wish to work such hours as to require her to leave the children alone at home, particularly as hers is a home which she told us seemed to attract young people to it. We agree that in the light of the husband's income, being at home at this important time in the lives of these two teenage children takes precedence over the relatively small sums she can earn by working longer hours.

21

The husband owns G, which is valued at £1M, and to all intents and purposes, is fully charged. He has two pension funds, the first with Aviva valued at £57,191.06 and the second being a self-invested pension plan (SIPP) valued at £280,123. His retirement annuity contract is with Rock Solid Limited, which holds the investments and which he beneficially owns. He contributes £1,385 per month to the SIPP, which payment is matched by FTC. His current cash flow...

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