C v D (Matrimonial)

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Bailiff
• Judgment Date: 14 March 2013
• Neutral Citation: [2013] JRC 56
• Date: 14 March 2013

[2013] JRC 56

ROYAL COURT

(Family)

Before:

Sir Michael Birt, Kt., Bailiff, and Jurats Marett-Crosby and Nicolle.

Between

C (the husband)

Appellant

and

D (the wife)

Respondent

The Appellant appeared in person.

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

Authorities

Matrimonial Causes (Jersey) Law 1949.

Mesher -v- Mesher [1980] 1 All E.R. 126n.

O -v- O [2005] JLR 535.

Cordle -v- Cordle [2002] 1 WLR 1441.

Matrimonial — dispute over ancillary relief together with appeals and cross-appeals and variation of orders relating thereto.

Bailiff

THE

1 In circumstances we shall describe shortly, the Court has before it four separate applications in connection with this dispute over ancillary relief in divorce proceedings. First, there is an appeal by the appellant (“the husband”) against the order of the Registrar of the Family Division dated 14th March, 2012; secondly, there is a cross-appeal by the respondent (“the wife”) against a particular aspect of the Registrar's decision; thirdly, there is a representation by the wife alleging contempt of court by the husband in failing to comply with the Registrar's order; and finally, there is an application by the wife under Article 33 of the Matrimonial Causes (Jersey) Law 1949 (“the 1949 Law”) to vary the Registrar's order.

The background

2 The parties were married in 2001 and they have two children. At the time of the hearing before the Registrar the husband was aged 39, the wife was 34 and the children were 9 and 6. The parties separated in November 2010. The wife has remained in the jointly owned former matrimonial home (“the matrimonial home”) with the two children. At the time of the hearing before the Registrar, the husband lived in rented accommodation with his new partner and her children. There was an agreed valuation of the matrimonial home before the Registrar of £535,000. There are two loans secured on the property, namely the mortgage and an equity release loan which was taken out principally to buy a motorhome. The equity in the matrimonial home after deduction of the two loans and selling costs was agreed at just over £231,000. The motorhome was valued at £17,000.

3 The matrimonial home and the motorhome are the only assets of significance. The wife has a car and the husband a van. The wife has two modest pensions. The husband apparently cashed in his police pension back in 2010.

4 As to income, the wife has three part time jobs as a school assistant, a swimming instructress and an ironing lady. Her gross income, including income support, is £16,245 per annum. The husband was at the time of the hearing before the Registrar in partnership with his brother as a builder. There was some confusion before the Registrar as to his income. His affidavit of means apparently declared a net income of £49,956 whereas, in evidence, he said that this was a pre-tax figure and his open position recorded his net income as £41,147. He also gave evidence that times are extremely hard in the building trade and he expected his income to decline.

Proceedings before the Registrar

5 The wife's open position before the Registrar was that a Mesher order should be made, in that the matrimonial home should be retained in the parties' joint names until the children reached 16 or ceased full time secondary education, whichever was the later. In the meantime the parties should each pay half of the mortgage payments and related life insurance policies, foncier rates and building insurance and the wife should meet all other expenses, such as contents insurance, occupiers' rates, the utility bills etc. She contended that the motorhome should be sold with the proceeds being applied to discharge her legal fees, the husband should be ordered to pay child maintenance and there should also be spousal maintenance of £250 per month.

6 The husband's open position was that there was insufficient income to retain the matrimonial home and that his income would decline because of the downturn in the building industry. He contended that the matrimonial home should be sold and the net proceeds of sale divided equally between the parties, the husband should retain the motorhome and each party should retain their own assets. He accepted that child maintenance should be ordered but said that there should be no spousal maintenance.

7 The Registrar concluded that the right course was to make a Mesher order so that the wife and children could remain in the matrimonial home and the husband could retain his share in the property. He found that the mortgage costs etc in relation to the matrimonial home were less than the rental which the wife would have to pay for equivalent accommodation. If the property were sold, her capital would be swallowed up over a period in rental payments.

8 He concluded that the parties could just afford this solution. He assessed the wife's monthly outgoings at £1,997 (including £661 in respect of half the mortgage costs etc in relation to the matrimonial home) and he took her monthly income as £1154 assuming the loss of income support after the making of the order. He said that the parties were agreed that there should be child maintenance of £708 per month in total for the two children, so the wife would therefore have £1,862. This was still less than her expenditure, so that she would need some spousal maintenance.

9 In this respect, he held that he had been given inconsistent information about the husband's income and he proposed to take the monthly figure of £4,163 (based on the figure of £49,956 in the affidavit of means) rather than the figure of £3,428.97 (based on the figure of £41,147 per annum in his open position). He noted that the husband had contributed a total of £17,923 in 2011 towards his new partner and her family and that this was a greater level of funding than he had been giving to the wife and children.

10 He noted also that the husband's partner had received a divorce settlement recently and intended to purchase a new property. The husband proposed to pay rent to his new partner of £1500–£1600 per month.

11 The Registrar concluded that the husband should pay spousal maintenance of £200 per month in addition to the child maintenance of £708. He worked out that this would be 37% of the husband's net monthly income of £4,163. He noted that the husband also paid maintenance of £200 per month for his older son, who lived with his mother — this was an error as the figure is in fact £230 — and some additional expenses for the children. Nevertheless, having considered the husband's figures, he concluded that it should just be possible for the husband to make the payments which he proposed, namely £661 towards the matrimonial home, £708 child maintenance and £200 spousal maintenance making £1569 in all. He also ordered that the motorhome be sold and that the proceeds be used towards legal fees, the wife's fees being paid first.

12 In summary, he made a Mesher order to the effect that the matrimonial home should remain registered in the joint names of the parties for the occupation of the wife and children until the first to occur of the trigger events, namely (i) the youngest child attaining 16 or leaving full-time secondary education, whichever us the later, or (ii) the earlier election of the wife. Each party was to contribute one half of the payments in respect of the mortgage, secured loan, the life insurance policies, the building insurance and the foncier rates (£661 per month) with the wife being responsible for all other expenses. The husband was ordered to pay child maintenance of £702 per month together with certain other incidental expenses such as after school activities and was also ordered to pay spousal maintenance of £200 per month. The Registrar further ordered that neither party could make any application for variation or discharge of his order pursuant to Article 33 of the 1949 Law save in respect of certain specified matters (which are not relevant).

Events since the Registrar's decision

13 On 24th March, 2012, — i.e. some two days after the Registrar's reasons were circulated — the husband e-mailed the wife to say that he would be unable to pay the April mortgage instalment. On 26th March Benest and Syvret (on behalf of the wife) wrote to Mr Troy (on behalf of the husband) to say that if the husband did not pay under the order, they would issue proceedings for contempt. The husband responded on 27th March to the effect that Mr Troy was no longer instructed, that an appeal would be lodged and that legal aid was being sought.

14 In the event, the husband did pay the April mortgage instalment but wrote on 15th April to the effect that he suspected that, at the end of the month, he would fail to fully comply with the order and also advising that he had been refused legal aid and would not be pursuing his appeal. The husband in due course also paid all payments due in May, both in respect of the mortgage payments and the spousal and child maintenance.

15 However, on 22nd May, the husband sent an e-mail to the wife advising that he had developed a problem with his back and that this would have a significant effect on his ability to work and earn. He said that he would not be able to make the next payment on the mortgage and that the bank were aware of this. He suggested that she should reconsider her position regarding the matrimonial home and that they should jointly approach the bank in order to put the payments on an interest only basis until the property was sold.

16 In the meantime, on 14th May, the husband had forwarded a cheque of £10,000 to Benest and Syvret as representing the proceeds of the sale of the motorhome. This was of course considerably less than the agreed valuation at the time of the hearing before the Registrar of £17,000. The sum was used towards the wife's legal fees.

17 At the end of May, the wife paid over to the husband her...