J v M

JurisdictionJersey
CourtRoyal Court
JudgeBailhache, Bailiff and Jurats Le Breton and Clapham
Judgment Date22 May 2002
Neutral Citation[2002] J.Unrep 102
Date22 May 2002
ROYAL COURT
Bailhache, Bailiff and Jurats Le Breton and Clapham

M.M.G. Voisin for the petitioner;

M.J. O'Connell for the respondent;

A.D. Robinson for the first party convened;

Miss K.J. Lawrence for the second party convened.

Cases cited:

(1) Brooks v. Brooks, [1995] 2 FLR 13, considered.

(2) Browne v. Browne, [1989] 1 FLR 291, dictum of Butler-Sloss, L.J. followed.

(3) E v. E, [1989] F.C.R. 591, distinguished.

(4) Milburn v. Milburn, English Court of Appeal, October 3rd, 1979, unreported, dictum of Roskill, L.J. followed.

(5) Prinsep v. Prinsep, [1929] P. 225, considered.

(6) Thomas v. Thomas, [1995] 2 FLR 668, dictum of Waite, L.J. followed.

(7) White v. White, [2001] 1 A.C. 596; [2001] 1 All E.R. 1, distinguished.

Additional cases cited by counsel:

B v. B, [1990] 1 FLR 20.

Bosworthick v. Bosworthick, [1927] P. 64; [1926] All E.R. Rep. 198.

Boudin v. Smith, 1995 JLR N-15.

Browne (formerly Pritchard) v. Pritchard, [1975] 3 All E.R. 771.

Chamberlain v. Chamberlain, [1974] 1 All E.R. 33.

Cowan v. Cowan, [2001] 2 FLR 192.

D v. D, [2001] 1 FLR 633.

Dart v. Dart, [1996] 2 FLR 286.

Dharamshi v. Dharamshi, [2001] 1 FLR 736.

Duxbury v. Duxbury, [1987] 1 FLR 7.

Elwell v. Knight, 1976 J.J. 391.

F v. F, [1995] 2 FLR 45.

Gulbenkian v. Gulbenkian, [1927] P. 237.

H v. H, [2002] 1 F.C.R. 55.

Hanlon v. Hanlon, [1978] 2 All E.R. 889.

Hargreaves v. Hargreaves, [1926] P. 42; [1926] All E.R. Rep. 195.

HJ v. HJ, English High Court, October 17th, 2001, unreported.

Howard v. Howard, [1945] P. 1; [1945] 1 All E.R. 91.

Howarth v. McBride, 1984 J.J. 1.

Joss v. Joss, [1943] P. 18; [1943] 1 All E.R. 102.

Lambert v. Lambert, English High Court, October 22nd, 2001, unreported.

Lidster v. Lidster (née Compton), 1999 JLR N-8.

Martin v. Martin, [1977] 3 All E.R. 762.

Melvill v. Melvill, [1930] P. 159.

N v. N, [2001] 2 FLR 69.

Paul v. Paul (1870), L.R. 2 P. & D. 93; 23 L.T. 196.

Potter v. Potter, [1982] 3 All E.R. 321.

Preston v. Preston, [1982] 1 All E.R. 41.

R v. R, [1994] 2 FLR 1044.

S v. S, [2001] 2 FLR 246.

Uzzell v. Uzzell, 2001 CILR N [12]; further proceedings, 2001 CILR N [17].

Wachtel v. Wachtel, [1973] Fam. 72; [1973] 1 All E.R. 113.

Williams v. Williams, [1977] 1 All E.R. 28.

Legislation construed:

Matrimonial Causes (Jersey) Law 1949, art. 27, as amended by the Matrimonial Causes (Amendment No. 8) (Jersey) Law 1995, art. 2: The relevant terms of this article are set out at para. 4.

art. 29: "(1) Where a decree of divorce, nullity of marriage, judicial separation or restitution of conjugal rights has been made, the Court may, having regard to the conduct of the parties to the marriage and to their actual and potential financial circumstances, order:-

(a) that one party to the marriage shall pay to the other party to the marriage during their joint lives or for such other term as may be specified in the order such annual or other periodic sum for the maintenance and support of that other party as the court may think reasonable;

(b) that one party to the marriage shall pay to the other party to the marriage such lump sum or sums as the court may think reasonable ..."

Matrimonial Causes Act 1973, s.24, as amended by the Welfare Reform and Pensions Act 1999, s.19, Schedule 3 ( paras. 1-3): The relevant terms of this section are set out at para. 6.

Text cited:

Jackson's Matrimonial Finance & Taxation, 6th ed., para. 8.16, at 258 (1996).

Family Law—financial provision—means of parties—court to take account of total resources available to parties including those (a) to which not absolutely entitled, e.g. discretionary trust; (b) inferred from expenditure; and (c) unascertainable due to complexity of financial affairs—court may encourage trustee to make distribution to spouse if enables him to meet financial provision ordered

Family Law—financial provision—post-nuptial settlements—variation—power of court to vary under Matrimonial Causes (Jersey) Law 1949, art. 27 limited to settlements between parties to marriage—settlement is "post-nuptial" if confers benefit on beneficiaries as husband and wife—insufficient that settlor aware of marriage

The petitioner, the wife, applied for financial provision to be made for her by the respondent, her husband, pursuant to art. 29 of the Matrimonial Causes (Jersey) Law 1949.

The parties were married in 1986 and have three children of school age. The husband was the only child of deceased parents. Shortly before his death in 1995, his father, X, had established a discretionary trust fund known as the X Trust, which had a value of £32.7m. at the time of trial. The beneficiaries of the trust were the husband, any issue of the husband, and any charity. Although the trustee had a power to add to the class of beneficiaries, the wife had not been made a beneficiary. Both parties also had substantial assets in their own names. In 2000, the wife obtained a divorce on the grounds of the husband's adultery. The husband moved abroad and the wife remained with the children in the former matrimonial home in Jersey.

The wife submitted that (a) the X Trust was a post-nuptial settlement within the meaning of art. 27 of the Matrimonial Causes (Jersey) Law 1949, which the court could vary to enable financial provision to be made for her from its assets; (b) if that were not the case, the assets of the trust were financial resources to which the court should have regard, as correspondence between the husband and the trustee indicated that the trustee would respond favourably to any request by him for capital to meet the financial provision ordered; (c) equal division of the family assets between her and her husband was a fair financial arrangement; and (d) ownership of the family home should be transferred to her, to allow the children to remain in their home in Jersey.

The trustee submitted that (a) the X Trust had no "nuptial" quality, as it was not referable to the marriage and was not made by or "between" the parties to the marriage, as required by art. 27; (b) the only assets to which the court should have regard were the assets in the sole name of the husband; and (c) as the matrimonial assets were not built up by the efforts of the parties, the appropriate test to determine their division was the reasonable requirements of the wife.

Held, making the following order:

(1) The court's power to vary a post-nuptial settlement under art. 27 of the Matrimonial Causes (Jersey) Law 1949 was limited to post-nuptial settlements "between the parties to a marriage." The X Trust was not a post-nuptial settlement within the meaning of art. 27 as it did not confer benefits upon the beneficiaries as husband or wife, but purely on the husband and his descendants. Nor was it appropriate for the court to infer that it was a post-nuptial settlement merely because X was aware of the marriage. Furthermore, the X Trust was not a settlement between the parties to the marriage as (a) the wife was not a party to the execution of the settlement; (b) she was not named as a beneficiary or in any other context; and (c) on the evidence, X had intentionally excluded the wife as a beneficiary. Accordingly, the court had no power to vary or modify the X Trust ( paras. 12-14).

(2) It was appropriate, however, for the court to take account of the total resources available to both spouses in order to do justice between them. These included (a) resources, such as those under the discretionary X Trust, to which the husband had access but no absolute entitlement; (b) unidentified resources which could be inferred from a spouse's expenditure; and (c) resources which were unascertained because of the complexity of his affairs. As it was apparent from the evidence in this case that the trustee would respond favourably to any request from the husband to advance capital to him in order to meet his obligations under the award granted to the wife by the court, it was appropriate to take these resources into account. Moreover, although the court could not usurp the trustee's discretion, it was permissible to encourage the trustee to respond favourably to any request by the husband to enable him to comply with the court's view of the justice of the case ( paras. 25-26).

(3) In cases involving a division of matrimonial assets, the court had a duty to achieve fair financial arrangements between the parties without discriminating between the respective roles of husband and wife. It was therefore inappropriate for the husband automatically to receive surplus assets in circumstances in which both parties had built up the family assets by their own efforts. In this case, however, as the assets had been built up by the husband's father, the appropriate test was the reasonable requirements of the wife ( para. 29; para. 38).

(4) The emotional and physical needs of the children of the marriage were a primary consideration in determining the division of assets between the parties. In this case, although the family home was more substantial than the wife reasonably required for herself, the emotional and physical needs of the children would best be met by transferring the ownership of the family home to her. This allowed the children to remain in their home for the foreseeable future and avoided any further disruption to their lives and education ( para. 37).

1 BAILHACHE, BAILIFF: The court is sitting to determine, pursuant to art. 29 of the Matrimonial Causes (Jersey) Law 1949, the appropriate financial provision to be made for the petitioner (to whom we shall refer as "the wife") by the respondent (to whom we shall refer as "the husband").

2 The parties were married in Jersey on March 8th, 1986 and have three children of school age. The husband is the only child of the late X and Y, who both died in 1995. The marriage between the parties broke down in 2000. The wife petitioned for divorce and a decree nisi was granted in 2000. The...

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