Downes v Marshall

JurisdictionJersey
CourtRoyal Court
JudgeBailhache, Commr. and Jurats Liddiard and Marett-Crosby
Judgment Date23 June 2010
Date23 June 2010
ROYAL COURT
Bailhache, Commr. and Jurats Liddiard and Marett-Crosby

N.S.H. Benest for the appellant;

R.E. Colley for the respondent.

Cases cited:

(1) Cordle v. Cordle, [2002] 1 W.L.R. 1441; [2002] 1 FLR 207; [2002] 1 F.C.R. 97; [2001] EWCA Civ 1791, applied.

(2) Marsh v. Marsh, [1993] 1 W.L.R. 744; [1993] 2 All E.R. 794; [1993] T.L.R. 79; [1993] 1 FLR 467, not followed.

(3) Murphy v. Collins, 2000 JLR 276, disapproved.

(4) Piglowska v. Piglowski, [1999] 1 W.L.R. 1360; [1999] 3 All E.R. 632; [1999] 2 FLR 763; [1999] 2 F.C.R. 481, dictum of Lord Hoffmann considered.

(5) A v. B, 1994 JLR N-6, referred to.

Legislation construed:

Matrimonial Causes (Jersey) Law 1949 (Revised Edition, ch.12.650, 2006 ed.), art. 3(5): The relevant terms of this paragraph are set out at para. 8.

Matrimonial Causes Rules 2005 (Revised Edition, ch.12.650.50, 2008 ed.), r.62(1): The relevant terms of this paragraph are set out at para. 8.

Family Lawfinancial provisionappealsfactors to be consideredappeal to Royal Court from Family Registrar only allowed if procedural irregularity; Registrar considered irrelevant matters or failed to consider relevant matters; or conclusion otherwise wrongunfettered discretion of Royal Court no longer appropriate

The appellant appealed against an order of the Deputy Family Registrar.

In ancillary relief proceedings, the Deputy Family Registrar awarded 53% of the matrimonial assets to the appellant ("the husband") and 47% to the respondent ("the wife"). The husband appealed, challenging the Registrar's exercise of discretion as to what was a fair distribution of capital between the parties. He did not suggest that the Registrar had made any error of law.

The wife submitted that the test on appeal from the Family Registrar, i.e. that the Royal Court had an unfettered discretion as to the conduct of the appeal, was no longer appropriate and should be reconsidered, as it had been in England. The husband submitted in reply that there was no reason to change the test in Jersey and that the court could not escape the responsibility of forming its own judgment as to the Registrar's exercise of discretion.

The Registrar appeared to have adopted the schedule of assets and liabilities provided by the wife's lawyers, which contained certain inaccuracies. It was difficult to reconcile the Registrar's intention to divide the assets in the stated proportions with the actual figures attached to her reasons.

Held, ruling as follows:

The decision of the Deputy Family Registrar to award 53% of the assets to the husband and 47% to the wife was fair (although the award would be adjusted for arithmetical error). An appeal against a decision of the Family Registrar should only be allowed if there had been a procedural irregularity or if, in exercising his discretion, the Registrar had taken into account irrelevant matters, ignored relevant matters or otherwise arrived at a conclusion which the Royal Court considered to be wrong. That test was not precisely the test applied in respect of appeals from the Royal Court to the Court of Appeal, as it reserved a wider discretion for the Royal Court to intervene, but it nevertheless placed greater weight on the Registrar's exercise of discretion. The test struck the appropriate balance, as it placed sufficient weight on the Registrar's findings of fact and exercise of discretion to discourage litigants from seeking a different award in the Royal Court, but the Royal Court could intervene if it considered that the Registrar had gone wrong to the extent that intervention was required in the interests of justice and fairness. The previous test on an appeal from the Family Registrarnamely that the Royal Court had an unfettered discretion to conduct an appeal as it thought the circumstances and justice of a case requiredwas no longer appropriate ( paras. 11-13).

1.BAILHACHE, COMMISSIONER:

Introduction

This is an appeal by Richard Nicholas Downes ("the husband") against an order of the Deputy Family Registrar ("the Registrar") of August 11th, 2009, dividing the assets of the husband and Julie Pauline Marshall ("the wife"). The parties were married on June 18th, 2000, when the husband was 48 and the wife 39. For both of them, it was a...

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