L v V

JurisdictionJersey
CourtRoyal Court
JudgeBailiff
Judgment Date19 February 2004
Neutral Citation[2004] JRC 33
Date19 February 2004

[2004] JRC 33

ROYAL COURT

(Family Division)

Before:

Sir Philip Bailhache, Bailiff and Jurats de Veulle & Quéreé.

L
Petitioner
and
V
Respondent

Advocate C M B Thacker for the Petitioner;

Advocate A.D. Hoy for the Respondent.

Authorities

Matrimonial Causes (J) Law 1949.

Rennell v L:e Miére (5th April, 1995) Jersey Unreported [1995/65].

Tommey v Tommey [1982] 3 All ER 385.

Harris v Manahan [1996] 4 All ER 454.

Braid v Barnes & Bree [1988] JLR 15.

Whether consent orders, which in turn superseded an earlier agreement, may be set aside and the extent, if any, to which the orders should be varied.

Bailiff

THE

Introduction
1

This is an unhappy but also an unusual case. It is unhappy because, as frequently happens when matrimonial disputes are allowed to drag on for too long, the parties have now each adopted entrenched and equally unsustainable positions. It is unusual because the Court is being asked to set aside two consent orders which in turn superseded an earlier agreement, all of which involved legal advice on both sides. The issues for the Court, following an order of the Registrar of the Family Division of 5th September 2003, are whether the consent orders may be set aside and the extent, if any, to which the orders should be varied.

Background
2

The brief history is that the petitioner (to whom we shall refer as ‘the husband’) and the respondent (to whom we shall refer as ‘the wife’) were married in 1986. They have two children now aged 12 and 8. The parties separated in 1997, the wife taking the children with her to live in a rented flat while the husband remained in the matrimonial home (to which we shall refer as ‘the property’).

3

During 1998 negotiations took place between the parties which led to the conclusion of a separation agreement on 5th October 1998. The husband was then represented by Pickersgill & Le Cornu and the wife by Mourant, du Feu & Jeune. The agreement made provision for joint custody of the children, with care and control to be vested in the wife. The husband agreed to pay maintenance for each child at £50 per week, until the age of 16 or he ceased full-time education, whichever was the earlier. (Presumably this was a mistake and should have read ‘whichever was the later’.) That figure to be reviewed annually on 3rd October in accordance with any rise in the Jersey Retail Prices Index. The husband was also to be responsible for the school fees.

4

So far as the wife was concerned, she abandoned any claim for maintenance. Furthermore, she agreed to transfer her interest in the property to the husband in consideration of a single payment of £45,000. The contents of the property were divided between them. A motor car was transferred into the name of the wife. Although some figures were prepared by the husband's legal advisers which purported to show that the payment to the wife represented approximately 50% of the net value of the property, this arrangement was in our judgment unduly favourable to the husband.

5

Two years later the wife had changed her legal advisers and sought to re-open the financial arrangements to which she had agreed as a ‘clean-break’ settlement. Correspondence took place between Voisin & Co, then (and now) representing the wife and Pickersgill & Le Cornu. The wife regarded the accommodation for herself and the children as comparing unfavourably with the property, which the husband had in the meantime been extending and improving. The husband claims that he had made financial disclosure to Mourant, du Feu & Jeune in 1998 but it seems that this information was not passed on to the wife. The wife's current legal advisers were accordingly in the dark as to the extent of his assets. The wife's perception was the husband was enjoying a relatively high standard of living and that the property, (the former matrimonial home) was now worth a substantial amount.

6

On 9th March 2001 Voisin & Co wrote to Pickersgill & Le Cornu suggesting (in the absence of any information as to the extent of the husband's assets) that the husband should pay the wife £250,000 which would enable her to buy a modest 3 bedroomed house. In consideration of such a payment she would abandon any claim for maintenance for herself. It seems that there was no immediate reply to this proposal and that the husband sought to have the 1998 agreement ratified by the Registrar of the Family Division. There was a hearing before the Registrar on 23rd October 2001 at which various directions were given. An indication was perhaps given that the 1998 agreement would not be ratified. On 29th October 2001 Pickersgill & Le Cornu wrote to Voisin & Co stating that they had been instructed by the husband to accept the proposals set out in the letter of 9th March 2001. It is to be noted that financial disclosure had still not been made by the husband to the wife's legal advisers.

7

On 29th January 2002 a memorandum of agreement was signed, and this agreement was ratified by the Greffier Substitute on 30th January 2002. The payment of £250,000 to be made by the husband to the wife was in addition to the £45,000 paid in 1998. In fact the only asset of the husband was the property. In February 2002 it was agreed between the parties that the husband would undertake further work to the property before it was placed on the market so as to enable him to make the payment of £250,000 from the proceeds of the sale.

8

On 2nd May 2002 the decree nisi granted on 20th September 2000 was made absolute.

9

In June 2002 the property was placed on the market for sale at an asking price of £850,000. At about this time the husband ceased to be represented by Pickersgill & Le Cornu and transferred his business to Crill Canavan. By letter of 9th October 2002 Crill Canavan wrote to Voisin & Co stating that the agreement to pay the wife £250,000 had been made on the husband's understanding that the property was worth £850,000. They suggested that advice from different estate agents indicated that the property was in fact worth some £200,000–£250,000 less than that figure. If the property were to be sold at £600,000–£650,000, the wife would receive virtually all the net proceeds of the sale. The husband's legal advisers suggested a without prejudice discussion to try to resolve the matter.

10

Voisin & Co replied on 17th October 2002 pointing out that the agreement to pay £250,000 to the wife was not linked to the sale of the property, and that the wife needed a minimum of £250,000 to buy a small house. They declined to negotiate. Enforcement proceedings were threatened.

11

By the end of 2002 the property had still not been sold and the husband had once more changed his legal advisers. He was now represented by Viberts. Further correspondence ensued concerning the impossible position in which the husband now found himself. The wife had begun proceedings to enforce payment of the agreed sum of £250,000. On 13th January 2003 the Registrar, by consent of both parties, adjourned the enforcement proceedings for three months against the husband's undertaking to use his best endeavours to secure an expeditious sale of the property. The Registrar also ordered, by consent, that, on condition that the husband continued to pay the children's school fees in accordance with the order of 31st January 2002, the wife should repay to the husband £75,000 upon the younger child attaining the age of eighteen or leaving full-time education, whichever was the later.

12

During 2003 advice was taken from various estate agents and the asking price of the property was reduced. Eventually, in July 2003, an offer of £610,000 was accepted, and completion took place in early September 2003. An order of the Registrar of 5th September directed that out of the net proceeds of sale, £50,000 should be paid to each party and that the balance of £258,493.24 should be held in escrow pending an order of this court.

The setting aside of the 2002 and 2003 orders (1)
13

Both counsel agreed that the Court's jurisdiction to vary a consent order was wider than the equivalent jurisdiction in England. English courts may vary orders for periodical payments but have no jurisdiction to vary an agreed lump sum payment. This Court has a wider jurisdiction which is set out in Article 32 of Matrimonial Causes (Jersey) Law 1949, as amended, in the following terms:–

Article 29 of the Law is the article under which an order for a lump sum payment may be made. Before considering whether this is an appropriate case for the exercise of the jurisdiction to vary, we turn to the function of the Registrar when an agreement is presented to him and a consent order is sought.

  • ‘(1) The Court may from time to time discharge or vary any order made under Article 25, 27, 28, 29, 29A or 30A of this Law or suspend any of the provisions thereof temporarily or revive the operation of any of the provisions so suspended.

  • (2) In exercising the powers conferred by this article, the court shall have regard to all the circumstances of the case, including any increase or decrease in the means of either of the parties to the marriage.’

Functions of the Registrar
14

The general principle is that when an agreement between parties to matrimonial proceedings is submitted to the Court for ratification, it is the duty of the Court to make certain basic inquiries so as to satisfy itself that the agreement is fair. In Rennell v Le Mière (5th April 1995 Jersey unreported) [1995/65]Sir Godfray Le Quesne, QC, in delivering the judgment of the Court of Appeal, stated –

‘If the agreement were to be referred to the Court in this way it would become the duty of the Court to consider whether the agreement was fair and just and to ratify it only if so satisfied. It would not have been a matter of the Court's applying a rubber stamp to the agreement or ratifying it without any exercise of the Court's discretion. This position has...

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