H v G
| Jurisdiction | Jersey |
| Court | Royal Court |
| Judge | P.R. Le Cras,Jurats Le Brocq,Allo |
| Judgment Date | 01 October 2002 |
| Neutral Citation | [2002] JRC 179 |
| Date | 01 October 2002 |
[2002] JRC 179
ROYAL COURT
(Family Division)
P.R. Le Cras, Esq., Commissioner and Jurats Le Brocq and Allo.
Advocate R. E. Colley for the Appellant.
Advocate D. Gilbert for the Respondent.
Matrimonial Causes (Jersey) Law, 1949: Article 29.
Boudin v Smith (23rd June 1995) Jersey Unreported.
White v White (2000) FLR 981 HL.
Southern v Southern (1999) JLR 94.
T v T (Financial Relief: Pensions) [1998] 1 FLR 1072.
Milne v Milne (1981) 2 FLR 286 C.A.
SRJ v DWJ (Financial Provision) [1999] 2 FLR 176. CA.
W v W (Periodical Payments: Pensions) [1996] 2 FLR 480.
K v K (Financial Relief: Widow's Pension) [1997] 1 FLR 35.
Walsh v Corcoran (1983) 4 FLR 59 C.A.
Pirouet v Pirouet [1985–86] JLR 151).
Appeal, under Rule 55A of the Matrimonial Causes (General) (Jersey) Rules, 1979 against the decision of the Registrar, Family Division, that the Appellant pay to the Respondent a lump sum of £100,000 on/before 30th April, 2002.
Greffier substitute ordered “clean break” payment in the sum of £100,000 payable at once. Petitioner unable to raise capital, offered £32,000 now and balance over some 10 or 11 years, a considerable diminution in the value of the Greffier's award which the Court, in its discretion, thought was an appropriate figure. To compensate the Respondent the Court refused to award compound interest, but awarded increases in the outstanding balances to be made proportionately in accordance with increases in the cost of living index.
This is an appeal by the Petitioner in matrimonial proceedings from an order of the Greffier Substitute, in his role of Family Registrar, made by him after a hearing, on 12 th March, 2002, the order reading:-
“Upon hearing the oral evidence of the petitioner, the respondent, the witnesses called on behalf of the respondent and the submissions of the parties' solicitors, for reasons which the Court has reserved, IT IS ORDERED:-
1. that on or before 30th April, 2002, the petitioner shall pay to the respondent a lump sum of £100,000;
2. that the respondent's application for maintenance for herself be dismissed;
3. that any application for costs be adjourned sine die.”
This was followed by a further Acte, dated 2 nd April, 2002 in which the Greffier Substitute gave his reasons, in a finding which ran to over 10 pages.
The Petitioner, the husband, promptly appealed on the grounds that in the circumstances of the case the decision was unreasonable.
The contentions in support of the appeal may be summarised as follows:
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(i) No account was taken of the Petitioner's assets which were available to pay an immediate lump sum.
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(ii) That part of the sum should be payable only when the Petitioner's pension became available.
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(iii) That insufficient regard was paid to the requirements of the daughter's future needs in full time (university) education.
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(iv) That the Respondent had no “immediate housing needs” being housed in States accommodation.
The order was thereupon stayed pending the appeal.
These contentions were then followed by a letter from the Petitioner's solicitor on 9 th July, 2002, the relevant part of which, for this appeal, reads as follows:
“I wish to reiterate in an open letter the offer made on 11th June 2002, i.e. that my client will make an initial payment of £32,000.00 together with monthly payments in the sum of £500.00 until such time as he retires and the commuted lump sum is received by him at which time he will pay any balance owing. This will enable him to have some funds available in order to finance N's further education during the next few years, a matter which I am sure that your client is also concerned with.”
In response, the Respondent's contentions dated 11 th July 2002, claimed that the only issue now between the parties was how the sum of £100,000 should be paid. The Respondent wanted it paid now, whilst the Petitioner (v.supra) wanted deferred payments.
These contentions, at paragraph 18, claimed that there was no difficulty in the Petitioner raising the £100,000 now as he had immediate capital assets of £66,472 and could borrow, either unsecured or against his capital, the balance of £33,528; or alternatively he might borrow up to £50,000.
The Respondent would not, were she not to receive the money now, be able to purchase a house; and put shortly, the Registrar having heard the evidence had decided on a “clean break”.
The appeal first came before the Court, as presently constituted, on 20 th August, 2002, when it was deferred for evidence to be called including, but not restricted to, the amount which the Petitioner could borrow.
Meanwhile the parties had continued to correspond at what one may perhaps describe as a frenetic rate, culminating, on 30 th August, 2002, with an offer, not so very different from the earlier offer, the relevant part of which reads:
“1. that Mr H pay to Mrs H a lump sum of £32,000. This sum will be made available to her as soon as the money can be taken off deposit with Lloyds/TSB and the insurance policy redeemed;
2. that Mrs. H is then paid periodical payments of £500 per month until Mr H's retirement;
3. the remainder of the lump sum of £100,000 is paid on Mr H's retirement;
4. that Mr. H takes full responsibility for N's further education costs;
5. that each party bears their own costs in respect of both sets of proceedings.
The above offer is virtually identical to the existing open offer and is made both in response to your offer and in order to clarify a number of issues.
The reasons for this offer are as follows:-
• The lump sum of £32,000 was always intended to include the surrender of the joint insurance policy.
• Mr H retains capital of approximately £37k in total. From this he is offering to pay your client in the region of £17,500. The rest of this capital is required to pay income tax of it is believed in the region of £6,000, immediate costs for N in order to allow her to relocate to university (Kingston) and to pay legal costs (this firm's costs alone exceed £11,000). Mr H will need to borrow in order to meet these commitments (and will certainly need to do so if costs increase).
• Mr H is willing to pay periodical payments to your client. This would increase her income stream and is entirely consistent with matrimonial case-law.
• Mr H's pension is both an illiquid and contingent sum. It consists of a purely notional figure. It has been established that he cannot borrow against it.
It was clear to the Court from the outset that £100,000 payable now had a greater value than a payment of £32,000 now with regular payments over perhaps 10 or 11 years and a final payment on completion.
The parties accepted this position and the arguments related to two points of difference, viz:-
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(i) Should the whole sum be payable now or be deferred in whole, or given the offers, more properly in part;
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(ii) If the payment were deferred in part, whether the total payment should amount to £100,000 or whether it should be increased, and if so to what extent, and in what manner on account of the deferment.
The Registrar, in his careful and detailed reasons went into the affairs of the parties in considerable detail. His findings may be summarised as follows:-
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(i) The Petitioner is a senior civil servant aged 54 and the Respondent is aged 55. The parties married in January 1983 and we were told that the marriage had lasted for some 15 years. There is one daughter from the marriage, born in November, 1983 who has just secured a place at university.
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(ii) During the marriage the parties had lived in the same house as the Petitioner's mother to whom the house belonged and where the Petitioner still resides, paying a rental as disclosed in his affidavit of means of £118 per month. ( & v.infra).
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(iii) The Respondent now resides in a States' flat at a rent of £130 per week, the payment of which is presently 4 weeks in arrears and although we had no immediate evidence as to her health, we note that she had been found, by the Registrar, to have suffered from stress in the past.
In his reasons, the Registrar found first, that the Petitioner's behaviour had not been of such importance as to entitle the Respondent as of right to a greater share of the assets but second, that the Petitioner's conduct had to a limited extent affected the Respondent's financial resources.
Neither party attacked these conclusions before us and we, therefore, accept them.
The Registrar then went on to make his finding as follows:
39. Having accepted these figures, however, it will be seen that the husband's limited available cash to make an immediate payment is a major factor in the equation of “jam today or margarine tomorrow”, which, in this case I have to decide upon. It seems to me best from all parties' point of view to create an immediate “clean break” if at all possible — the wife to re-house herself, the husband to re-build his life without future financial ties, apart from his present need to borrow against the future security of the pension. In other words, I have chosen for the wife “jam” now, limited to available resources, in preference to future “margarine”.
Husband
£
Bank deposits
51,972
Pension C.E.T.V.
345,336
Pearl Assurance (one half)
14,500
Car
4,000
415,808
Wife
£
Bank deposits
6,498
Britannic Assurance
88,357
Prudential Assurance
36,034
Pearl Assurance (one half)
14,500
Pension
10,199
Car
500
Jewellery
500
156,858
Total assets
572,666
40. Total assets for distribution are seen to amount to £572,666, but the pensions are not immediately available. Nevertheless, I am faced with the very reasonable need of a wife to spend...
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