Q(Petitioner) v R

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Sir William Bailhache,Bailiff
• Judgment Date: 01 August 2017
• Neutral Citation: [2017] JRC 123
• Date: 01 August 2017

ROYAL COURT

(Family)

Before:

Sir William Bailhache, Bailiff., sitting alone.

In the Matter of Q v R (Matrimonial)

And in the Matter of Matrimonial Causes (Jersey) Law 1949

Between

Q

Petitioner

–v–

R

Respondent

Advocate J. F. Orchard for the Petitioner.

Advocate H. J. Heath for the Respondent.

Authorities

Matrimonial Causes (Jersey) Law 1949.

R v V [1994] JLR Notes 10B .

Matrimonial — directions requested by the petitioner regarding ongoing proceedings.

THE BAILIFF:

1 This judgment is concerned with two directions requested by the Petitioner in the ongoing proceedings between her and the Respondent. The Petitioner brought a summons seeking further financial disclosure, and proposed a list of fourteen draft directions. The matter came before me as a single judge on 17 ^th July and judgment was given that day in relation to twelve of those draft directions. This judgment concerns the remaining two directions where judgment was reserved.

2 The parties were married and had three children. In or about 2009, difficulties arose in the marriage and divorce proceedings were commenced. The marriage has now been dissolved. On 27 ^th January, 2011, the then acting Family Registrar made an order by consent dealing with the various financial matters in issue between them. The consent order opens with this language:-

“Upon the Petitioner and the Respondent agreeing that the terms of this order are accepted in full and final satisfaction of all claims for income, capital (including pension rights), property and of any other financial application or ancillary application whatsoever (save in relation to child and spousal maintenance) which either may be entitled to bring against the other, or the estate of the other arising in relation to their marriage now or at any time in the future, in any jurisdiction howsoever arising …”

3 What followed then were a series of provisions which set out a clean break in relation to the various capital claims, and provisions for spousal and child maintenance. As to spousal maintenance, the review provisions were as follows:-

“8. The spousal maintenance payments detailed in paragraph 7 above shall be paid on a joint lives basis and shall cease to be payable upon the happening of whichever shall be the sooner of the following trigger events:

(a) The Petitioner's remarriage; or

(b) The Petitioner's co-habitation with a man for a period in excess of six months;

9. The spousal maintenance payments detailed in paragraph 7 above shall be subject to a review upon either:

(a) The retirement of either party; or

(b) In the event of a material change in circumstances of either party. For the avoidance of doubt, there shall not be a review in the event that the Petitioner obtains employment of any nature;”

4 I note that in so far as the capital settlement was concerned, the former joint matrimonial home had been sold and the net proceeds of sale held on escrow. I note also that the parties seem to have had a joint interest of some kind in a property described as “Property A” and that the Petitioner transferred her interest, whatever that might be, in the Property A to the Respondent. I note also that a substantial capital sum was paid by the Respondent to the Petitioner in settlement of her capital claims. Finally I note that the consent order gave effect to the whole of the agreement on ancillary matters, which therefore covered not only capital and maintenance matters, but also insurance, pension, the Respondent's business and costs.

5 As the consent order provided, the spousal maintenance has been increased since 2011 in accordance with increases in the retail prices index and has been paid up to date, albeit the Respondent apparently did not set up a standing order for spousal maintenance which the consent order had required. Since the date of the consent order, it appears that the three children of the parties have completed their university studies, the cost of which the Respondent asserts has been largely or wholly met by him, although the Petitioner does not fully accept that. The present debate does not however concern who has paid the children's university fees. That is a relevant factor only because the fact that they have completed their studies seems to suggest that the financial position of both parties will have been improved. On 18 ^th May, 2016, the Respondent filed an application for a review of spousal maintenance. His application was later supported by an affidavit sworn by him on 30 ^th June, 2016. Although it is not entirely clear, the application for a review of spousal maintenance appears to be based upon the Respondent's retirement; or perhaps upon the basis of a material change in circumstances which includes early retirement. At present it is not entirely clear from the written material which is before the Court.

6 The Court's jurisdiction to make a variation order arises under Article 33 of the Matrimonial Causes (Jersey) Law 1949 (“the Law”) which is in these terms:-

“Power to vary orders

(1) The court may from time to time discharge or vary any order made under Article.., 27 … 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.”

7 It would seem therefore that once the application for a review of spousal maintenance comes before the Court, regard is to be had to “all the circumstance of the case”.

8 Those circumstances include the deal which has been done as is reflected in the consent order as well as the circumstances which apply at the date the Court is considering its review.

9 That then is the background to the Respondent's application brought in May 2016 for a review of spousal maintenance. In accordance with standard practice on 3 ^rd June, 2016, the Family Registrar ordered the parties to file affidavits setting out their current and future income and expenditure, capital position and the effect of the proposed retirement and remarriage, in the case of the Respondent, on his financial position. It was then ordered that questionnaires be exchanged and filed. This has duly happened, and it is because the Petitioner is dissatisfied with the Respondent's responses to the schedule of deficiencies that the present summons has been issued.

10 Perhaps unhelpfully, the Respondent's affidavit sworn in support on 30 ^th June covers a wide range of material. He asserts that the Petitioner received a lump sum payment in order to purchase a property in Jersey in which she could live, possibly with the children, but...