H (the Mother) v J (the Father)

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Is
• Judgment Date: 03 October 2013
• Neutral Citation: [2013] JRC 194B
• Date: 03 October 2013

[2013] JRC 194B

ROYAL COURT

(Family)

Before:

Mrs Judy Marie O'Sullivan, Registrar, Family Division.

Between

H (the Mother)

Petitioner

and

J (the Father)

Respondent

Advocate M. E. Whittaker for the Petitioner.

Advocate M. Godden for the Respndent.

Authorities

Matrimonial Causes Law (Jersey) 1949 as amended.

Matrimonial Causes Act 1973.

White -v- White [2001] 1 AER 1985 .

Miller -v- McFarlane [2006] UKHL 24 , [2006] 2 AC 618.

Charman -v- Charman [2007] 1 FLR 1246 .

J -v- M [2002] JLR 330 .

In the matter of S [2011] JRC 119 .

F -v- M [2007] JLR Note 21 .

S -v- G [2003] JLR Note 29 .

Croft -v- Moy (1971) JJ 1793 .

Howarth -v- McBride (1984) JJ 1 .

Stanaway-Ivey -v- Overland (1980) JJ 233 .

Southern (nee Brownbill) -v- Southern and Kingswell [1999] JLR 94 .

S -v- W [1999] JLR Notes 9a .

Maskell -v- Maskell [2001] EWCA Civ 858 .

Downes -v- Marshall [2010] JRC 115B .

C -v- D (Matrimonial) [2013] JRC 056 .

O -v- O [2005] JLR 535 .

In the matter of GG [2010] JRC 202 .

White -v- White [2001] 1 AER 1 .

Miller & McFarlane [2006] 3 AER 1 .

Robson -v- Robson [2011] 3 FCR 625 .

Morgan -v- Amy [1968] JJ 981 .

Vaughan -v- Vaughan [2007] EWCA Civ 1085 .

Martin -v- Martin [1976] Fam 335 .

R -v- G [2006] JLR Note 20 .

S -v- F [2008] JLR Note 19 .

Matrimonial — application for ancillary relief.

THE REGISTRAR:

1 This is an application by the wife for ancillary relief. The parties were married in August 1994, the wife is aged 46 and husband 49. There are two children, A born in 1996 aged 16 and B born in 1999, aged 14. A Decree Nisi has been pronounced on the 19th December, 2012 on the grounds of the husband's unreasonable behaviour.

2 The children continue to live with their mother at the property C, Grouville, Jersey, in which the wife's mother, K has a life interest in the property. The wife is by occupation a physiotherapist assistant but is off work due to stress. The husband was a policeman but is now unemployed and in receipt of Long term incapacity allowance (LTIA) at a 60% rate and income support.

3 The wife was represented by Advocate Whittaker, the husband by Advocate Godden. There were bundles of documents and additional bundles. I heard from the parties and from D called on behalf of the wife. The hearing was listed for the 11th and 12th September but then was heard further on the 3rd October, 2013 to give the wife more time to clarify her open position and for the husband to consider it.

4 There is a considerable difference in the open positions of the husband and wife. The husband proposes that the Former Matrimonial Home (“FMH”) is sold on trigger events in the future namely, the lifetime interest of his mother-in-law, K, coming to an end or both children attaining the age of 18, i.e. 17th August, 2017, whichever is the later. The property would then be sold and the net proceeds divided between him and the wife. He does however seek a lump sum of £10,000 now.

Latest open positions

5 The wife's position dated the 27th September 2013:–

• (i) That there shall be a clean break between the parties.

• (ii) The respondent shall transfer his interest in the Former Matrimonial Home (the FMH) to the petitioner within 6 weeks of the date of the Order upon condition that:–

  • (a) The petitioner shall bear the reasonable costs of the respondent in relation to the transfer; and

  • (b) She shall take sole responsibility for the repayment of the mortgage with Skipton International and shall use her best endeavours to ensure that the respondent's name is removed from the mortgage documents.

• (iii) The petitioner shall take over sole responsibility for the repayment of the payments due to K in respect of the contractual obligations of the parties, this in the quantified sum of £70,675 as at the 30th April 2013 and on-going in respect of the rates and utilities in respect of the FMH.

• (iv) The petitioner shall pay to the respondent the sum of £30,000. This figure is calculated to take into account:–

  • (a) the pension values which are now known in full;

  • (b) the PEP;

  • (c) the addition to the mortgage in respect of the boat G and the car;

  • (d) the very significant difference in contributions to date on the part of the parties including the unmatched contribution made by the petitioner through H's transfer of the property C;

  • (e) the assumption by the petitioner of:–

    • (1) the liability for the repayment of the monies owed to K by the parties;

    • (2) the repayments of mortgage capital and interest made by the petitioner since 1st August 2012;

  • (f) the failure of the respondent to contribute towards the maintenance of the petitioner and the children from in or about August 2010 to date; and

  • (g) finally, the fact that the petitioner will have by far the greater responsibility and contribution towards the care and costs of maintaining and housing the children until they finish their education, even should there be any payment of maintenance by the respondent.

• (v) The sum less any payment in relation to costs as referred to below and any deduction in relation to the secured provision set out at paragraph 9 below shall be payable by the petitioner upon the first occurring of:–

  • (a) the second child completing his education inclusive of further education, whether it be the older or younger child to do so;

  • (b) upon any earlier sale of the FMH by the petitioner;

  • (c) upon the remarriage of the petitioner;

  • (d) her earlier election.

• (vi) The funds presently held in escrow will be divided on the basis that the funds are divided equally between the parties and the respondent will meet the costs of the divorce as set out in the bill of costs for taxation in the sum of £2,712.50, this from his share. Should there be any shortfall then this will be waived by the petitioner.

• (vii) Each party shall retain those contents of the FMH and personal effects in his or her possession or otherwise in accordance with the agreement of the parties noted by the court on the 9th September 2013.

• (viii) Each party will thereafter retain all assets held in his or her own name including for the avoidance of doubt any monies had and received and any pension provision that either might have.

• (ix) The claims for spousal maintenance and financial provision the one party against the other shall stand dismissed.

Child Maintenance

6 The respondent shall pay maintenance for the children of the family from the date of the order until each child shall attain the age of 17 years or complete his education whichever shall be the later. This is calculated to be £60 a week while the respondent is in receipt of LTIA and income support in the sum of £15,000 or thereabouts. Maintenance should be paid upon the same terms that the respondent is receiving payment, i.e. weekly or monthly.

7 The level of maintenance shall be reviewed:–

• (i) Upon the respondent finding employment and his income from all sources increasing to a level greater than £16,000, whereupon the level of maintenance shall automatically increase to 20% of his income net of tax and social security payments only;

• (ii) Upon any other material change of circumstances of either party or of either child of the family;

• (iii) Annually upon the anniversary of this order in accordance with any increase in the Jersey Retail Price index, provided that the level of maintenance shall never fall below that paid in the preceding twelve month period;

• (iv) For each child as and when he should move to further education or training including any time at Highlands College, Jersey.

8 The payment due to the respondent under the terms of paragraph 4 above shall be held by way of secured provision against the payment of maintenance by the respondent:–

• (i) The respondent shall in addition to the costs of the divorce referred to in paragraph 4 above, pay a contribution towards the costs of the petitioner in connection with these proceedings in the sum of £25,000 which the petitioner believes is a fair estimate of the additional costs incurred by her to date as a result of the litigation conduct of the respondent including issues of non-disclosure and failure to comply with court orders and failure to negotiate;

• (ii) Subject to the payment of costs as set out above, each party should pay his or her own costs in relation to the divorce and settlement of ancillary matters.

9 There should be liberty to apply in relation to the implementation of the Order

The husband's open position

Is

10 :–

• (i) That the FMH be transferred into the Petitioner's sole name;

• (ii) That upon the last of the children attaining the age of 18 i.e. August 2017 or K's lifetime enjoyment of the FMH coming to an end by whatever means (whichever is the latter) the FMH be sold and 50% of the sale proceeds after the deduction of the mortgage and fees be paid to the Respondent;

• (iii) That from the sale proceeds as set out at paragraph 2 the Petitioner will receive an additional lump sum payment equivalent to half of one quarter of the value of the Respondent's States of Jersey Pension;

• (iv) That the funds currently held in escrow be divided equally with the Respondent paying the cost of the petition from his proportion but only if that cost does not exceed £1,500;

• (v) That the remaining contents of the Respondent's in the FMH are to be returned to him (the practical arrangements to be agreed) within 14 days of the Final Hearing;

• (vi) That each party will retain all other assets currently in their possession;

• (vii) That both parties abandon their claims to spousal maintenance;

• (viii) That the Respondent will pay 20% of his net monthly income by way of maintenance for the Children once he is in full time employment; whilst the Respondent remains dependent on benefits he will pay a total of £130 per month made up as...