II

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith,Jurats Le Cornu,Marett-Crosby
Judgment Date18 November 2010
Neutral Citation[2010] JRC 209
Date18 November 2010

[2010] JRC 209

ROYAL COURT

(Samedi Division)

Before:

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

In the Matter of II

Between
A
Petitioner
and
B
Respondent

The Petitioner represented herself.

Advocate A. D. Hoy for the Respondent.

Advocate M. J. Haines appeared as Amicus Curiae.

Authorities

Matrimonial Causes (Jersey) Law 1949.

W (children) (2010) UKSC 12.

LM v Medway Council (2007) EWCA Civ 9.

In the matter of C [2009] JLR 353.

Children (Jersey) Law 2002.

Le Geyt v Mallett [1993] JLR 103.

Edgar v Edgar (1981) WLR 1410.

MacLeod v Macleod (2010) 1 AC 298.

Rennell v Le Miere (5th April 1995) Jersey unreported.

L v V [2004] JRC 033.

Matrimonial Causes Rules 2005.

Rossi v Rossi (2006) EWHC 1482.

Matrimonial Causes Act 1973.

White v White (2001) 1 AER 1.

O v O [2005] JLR 535.

Miller v Miller [2006] 3 AER 1.

McFarlane v McFarlane [2006] 2 AC 618.

THE COMMISSIONER:
1

This is the judgment of the Court on the parties' respective applications for ancillary relief following a three day hearing on 11 th–13 th October. 2010.

Background
2

The parties were married in 1993. The petitioner was then employed in a senior position within a bank in London and with the assistance of a mortgage she owned a flat in Jersey which was rented out. The respondent was a practising barrister and lived in a small house he owned in London, again with the assistance of a mortgage.

3

The parties' first child was born in 1993. In 1994, they moved to Jersey where the respondent commenced work with a local firm of advocates, with a view to his qualifying for the Jersey Bar. The petitioner left her employment with the bank but in circumstances in which she was able to bring a claim for unfair dismissal and sex discrimination. The respondent sold his London home, but it yielded no equity.

4

In 1995, the petitioner gave birth to the parties' second child. In September 1996, the parties moved into a property in Jersey purchased in the name of the petitioner for £320,000 and financed with an interest only mortgage in the sum of £220,000. The balance came substantially from the profit on the sale of the petitioner's flat.

5

The respondent was unsuccessful in his attempts to pass the local advocates' examination and in 2000, he commenced employment with Barclays. In January 2001, he moved to Barclays in London and the family moved to live in Winchester.

6

The petitioner was awarded £11,715 for unfair dismissal by the bank and having appealed, agreed on 13 th December, 2001, to accept £250,000 by way of damages for sex discrimination. She had been advised that the confidentiality clause in the settlement agreement prevented her from telling the respondent of the amount of the payment. Accordingly she did not tell him the amount paid and arranged for the bulk of the funds to be routed through her mother's account ostensibly as a loan from the mother to the parties. The petitioner has not worked since leaving the bank.

7

In 2002, the parties purchased a property in Winchester for £525,000 in the sole name of the petitioner and financed partly by way of an interest only mortgage in the sum of £420,000 in the joint names of the parties and partly as to the balance out of the money the parties had ostensibly borrowed from the petitioner's mother, but which in reality came from the settlement with the bank.

8

In 2002, the respondent commenced employment with C in Jersey residing between Jersey and Winchester. The Jersey property was let to Barclays Bank for three years.

9

In 2006, the respondent ceased employment with C when all the senior managers were replaced and he received compensation in the sum of £190,964.92 together with a further £13,773.16 for his “sweet equity” shares which were purchased back from him by the company. The petitioner moved back with the children to live in the Jersey property with the respondent.

10

In March 2007, the respondent commenced employment with an English law firm, where he is still employed, and moved to England to live in the Winchester property. From that point, the parties lived apart.

11

In 2007, the elder child commenced schooling at a leading English public school and shortly prior thereto, the parties signed what they have referred to as the “Le Cornu agreement” to which we will return.

12

In December 2007, the respondent left the Winchester property to live in London and has not been allowed contact with the children since that Christmas. In that December the petitioner refinanced the Jersey property with an interest only mortgage from Jersey Home Loans for just over £500,000. That enabled her to pay off the existing mortgage in the sum of £220,000 and an overdraft facility and equity release loan in the total sum of some £180,000 leaving a balance upon which she was able to subsequently draw down.

13

In 2008, the younger child commenced schooling at the same public school. Currently, the elder child has some two years left at the school and the younger child some three years.

14

In 2009, the petitioner, having drawn down all of the remaining capital on the Jersey Home Loan, took out four loans from Acorn Finance currently totalling some £210,000.

15

Since the latter part of 2007 the respondent has paid the school fees (which we will see consume the greater part of his income) but has not otherwise supported the petitioner and the children. He assumed, he told us, that the petitioner would sell the Winchester property and resume gainful employment. The petitioner has paid the interest on the two mortgages and supported herself and the children when they are with her from the borrowings firstly from Jersey Home Loans and subsequently from Acorn Finance. In effect the petitioner has been living off the equity in the two properties.

Procedural History
16

In February 2008, the respondent issued divorce proceedings in England, now stayed. In March 2008, the petitioner issued these proceedings and the respondent has accepted the jurisdiction of this Court. The decree nisi was pronounced on 30 th July 2008.

17

A number of directions were given by the Registrar before he referred the matter up to the Royal Court but for the purposes of this judgment it is relevant to note that on 21 st October, 2009, following the petitioner filing an affidavit on matrimonial misconduct on the part of the respondent, the Registrar ruled that matrimonial conduct would not be taken into account.

18

At a hearing before the Registrar on 13 th April, 2010, the petitioner informed the Registrar that she had instructed nine different lawyers and incurred costs of £150,000 and had not even begun to get financial disclosure from the respondent. She informed him that she intended to appeal any order made by him. The Registrar referred the matter to the Royal Court for the following reasons:-

“(1) The wife appears to have lost confidence in the Family Court jurisdiction and will not accept any order made by me.

(2) Unless the latest answers (which I have not seen) to the wife's recent questionnaire reveal some hidden wealth, her pursuit of financial ancillary relief may not even remotely recoup the costs incurred to date by her. Unpalatable though it might be, it may be for the Court above to consider dismissing some or all of her claim for relief. The on-going dispute with her husband could, in my view, be described as a “vendetta”.

(3) The delay between separation (“the end of 1995”) and the present has made it difficult, as a matter of practicality, for the Court to adjudicate on the dispute.

(4) I have concerns about the wife being sufficiently capable (mentally as well as emotionally) to conduct matrimonial proceedings on her own (even with the help of her brother who has been acting as her “Mackenzie friend”). She either does not wish to, or, alternatively, does not have sufficient funds to instruct lawyers consistently (and possibly an accountant).

(5) In the midst of the confusion and lack of available cash to pay for basic needs, the two children, although enjoying a high class education at [ ] school, are suffering significant deprivation when they are at home with their mother in Jersey. The guardian draws attention to the need to draw the case to a conclusion as “a matter of urgency” and yet to “try to ensure adequate financial provision to enable [the children] to enjoy a reasonable standard of living.”

(6) Having failed to determine their case to a close within a reasonable period, I owe to the parties and the children a chance, before a different judge, to bring matters to a head (or to a close) as soon as may be just.”

19

On 15 th July, 2010, the Royal Court gave directions to enable the applications for ancillary relief by both parties to be heard on 11 th, 12 th and 13 th October, 2010, including inter alia, a direction:-

  • (i) That the parties' existing affidavits should stand as their evidence in chief.

  • (ii) That either party may file additional affidavits either from themselves or from other witnesses on which they intend to rely at the hearing which shall be the evidence in chief of the parties or witnesses concerned by close of business on 10 th September, 2010.

  • (iii) In the light of the petitioner's wish to represent herself, an amicus curiae be appointed to assist the Court and whilst maintaining his or her neutral position be at liberty to advise the petitioner on any legal or procedural matters she may raise prior to and during the hearing. Pursuant to that order, Mr Haines was appointed.

20

On 17 th September, 2010, and notwithstanding the prior order of the Registrar, the Court gave the petitioner leave to file a further affidavit in support of an application for the Court to take into account the matrimonial misconduct of the respondent. No such affidavit was filed and no such application was pursued. Accordingly, matrimonial misconduct was not an...

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3 cases
  • G v H
    • Jersey
    • Royal Court
    • 27 June 2018
    ...[2010] UKSC 42, [2010] 2 FLR 1900. L v M (Matrimonial) [2017] JRC 062A. L v M (Matrimonial) [2016] JRC 184A. In the matter of II [2010] JRC 209. Crossley v Crossley [2007] EWCA Civ 1491. S v S (Ancillary Relief) [2008] EWHC 2038 (Fam). Edgar v Edgar [1980] 3 All ER 887. Smith v Smith [20......
  • A v B
    • Jersey
    • Royal Court
    • 12 February 2015
    ...and B Respondent The Petitioner appeared on her own behalf. The Respondent appeared on his own behalf. Authorities In the matter of II [2010] JRC 209. In the matter of II [2010] JRC 233A. In the matter of II [2011] JCA 126. Matrimonial — issue of a summons for maintenance by the petitioner.......
  • A v H
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    • Royal Court
    • 15 June 2016
    ...Court Rules 2004 Lapidus v Le Blancq [2013] (2) JLR 308. Williams on Wills. Banks v Goodfellow (1869–70) LR5 QB 549. In the matter of II [2010] JRC 209. Customary Law Amendment (Jersey) Law 1948. Flynn v Reid [2012] (1) JLR 370. Haden-Taylor v Canopius [2015] (1) JLR 224. White v Jones [19......

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