Braid v Barnes and Brée

CourtRoyal Court
JudgeCrill, Commr. and Jurats Rumfitt and Vibert:
Judgment Date09 January 1998
Date09 January 1998
Crill, Commr. and Jurats Rumfitt and Vibert:

Mrs. M.E. Whittaker for the petitioner;

Miss D.M.C. Sowden for the respondent.

Cases cited:

(1) Cristel v. Cristel, [1951] 2 K.B. 725; [1951] 2 All E.R. 574; (1951), 95 Sol. Jo. 561.

(2) L v. L, C.A., April 5th, 1995, unreported, applied.

(3) Mesher v. Mesher, [1980] 1 All E.R. 126n., applied.

(4) Potts v. Potts (1976), 6 Fam. Law 217.

(5) Thwaite v. Thwaite, [1982] Fam. 1; [1981] 2 All E.R. 789; (1981), 125 Sol. Jo. 307.

(6) Tilley v. Tilley (1979), 10 Fam. Law 89, dictum of Donaldson, L.J. considered.

Additional cases cited by counsel:

Gallichan (ne Turmel) v. Gallichan, Royal Ct., November 1st, 1991, unreported.

O'Brien (ne du Val) v. O'Brien (No. 2), 1989 JLR 145.

Ostroumoff v. Martland, 1979 J.J. 125.

Rose v. Wraight, Royal Ct., August 3rd, 1993, unreported.

Family Lawfinancial provisionvariationliberty to applyconsent order with provision that liberty to apply "in the event of difficulty in the execution of the terms of this order" to be construed strictlyprevents court from taking broad view of merits, even if required in circumstances

Family Lawfinancial provisionmaintenance agreementratification by courtduty of court to consider whether agreement fair and suitable for ratification and to exercise discretionneeds of children paramount considerationratification converts agreement into court order suitable for review by Royal Court

Family Lawfinancial provisionmatrimonial homemay be in children's interests to allow spouse and children to remain in matrimonial home rather than order sale and division of proceedscourt may make Mesher order if appropriate in circumstances

The petitioner sought to vary a consent order made in ancillary proceedings following her divorce from the respondent.

The petitioner obtained a divorce from the respondent, to whom she had been married for over 20 years. They had four children, who continued to live with the petitioner in the matrimonial home. The parties made an agreement whereby the matrimonial home would be sold and the net proceeds divided equally between them. This agreement was ratified in proceedings before the Greffier Substitute, although questions were later raised as to whether he had properly considered all the details of the agreement before making the consent order, in particular, the petitioner's need for sufficient funds to provide a suitable home for herself and the children. The order contained, inter alia, cl. 12, which stipulated: "Each party shall be at liberty to apply to the court in the event of difficulty in the execution of the terms of this order."

The petitioner subsequently alleged that she had had difficulty in obtaining suitable accommodation with the available funds and she therefore sought to vary the consent order to allow her and the children to remain in the matrimonial home. The respondent sought to uphold the agreement, claiming that the petitioner had failed to substantiate her allegations.

The Greffier Substitute referred the following issues to the Royal Court: (a) whether the consent order should be set aside; (b) if so, whether the court should itself adjudicate upon the ancillary matters or refer them back to him; and (c) the petitioner's application for variation of the original order.

The court considered (a) whether the Greffier Substitute had properly fulfilled his duty on being presented with an agreement as to ancillary matters for ratification; (b) the extent of the court's power to review the Greffier Substitute's decision, in particular, in the light of cl. 12 of the consent order; and (c) if it were to remit the matter to the Greffier Substitute, what directions would be appropriate.


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4 cases
  • S v F
    • Jersey
    • Royal Court
    • 12 August 2008
    ...of Butler-Sloss, L.J. applied. (3) Barder v. Barder, [1987] 1 FLR 18; [1987] Fam. 24; [1986] 2 All E.R. 918, applied. (4) Braid v. Barnes, 1998 JLR 15, distinguished. (5) de Lasala v. de Lasala, [1980] A.C. 546 ([1979] UKPC 10); [1979] 2 All E.R. 1146, applied. (6) Harris v. Manahan, [1997]......
  • Ps v Hf and Ss
    • Jersey
    • Royal Court
    • 12 August 2008
    ...Harris v Manahan (1997) 1 FLR 205. Tibbs v Dick (1998) 2 FLR 1118. L v L (2006) EWHC 956 (FAM). SB v SB [1995] 2 FCR 62. Braid v Barnes [1998] JLR 15. L v V [2004] JRC 033. Harris v Manahan (1996) 4 All England Reports 454. P-S v C [2006] JLR 463. W v W (Financial Provision: Form E) (2004)......
  • L v V
    • Jersey
    • Royal Court
    • 19 February 2004
    ...and just (L v. L, C.A., April 5th, 1995, unreported, considered; Harris v. Manahan, [1996] 4 All E.R. 454, considered; Braid v. Barnes, 1998 JLR 15, applied). In particular, the interests of minor children, including any lump sums paid in order to provide them with accommodation, should be ......
  • J v K
    • Jersey
    • Royal Court
    • 24 October 2001
    ...between the parties into a formal order of the court and it is therefore within the power of the court to review it (Braid v. Barnes, 1998 JLR 15, followed). Moreover, it may be varied by the Greffier alone, if it would be unjust to hold the parties to it in the changed circumstances surrou......

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