Jersey Unreported Judgments

[2010]JRC134A

royal court

(Family Division)

19^th July 2010

Before     :

J. M. O'Sullivan, Deputy Registrar. Family Division.

 

IN THE MATTER OF ZZ

Reasons in respect of ancillary matters and child maintenance

Advocate M. E. Whittaker for the Petitioner.

The Respondent acting on his own behalf.

judgment

the deputy Registrar:

1.        The petitioner and respondent were married on the 30th August 1986, and the Decree Nisi has been pronounced in this case on the 30th June, 2010.  The petitioner is 49          and the respondent 50.  She is a housewife and he is the group director of a local Trust.  There are three children of the family; C who was born in 1989 and is at university in England, D who was born in 1996 and attends Victoria College and E who was born in 1997.  The parties lived together at a property in St Ouen ("St Ouen property"), where the mother and children reside although the children also stay with their father at his St Brelade property.  

2.        A bundle was filed by the petitioner's Advocate and I heard submissions from the petitioner's Advocate, and the respondent, who is now acting for himself, although an open position and letter dated the 14th July, 2010, had been filed by his former lawyers.  The petitioner is seeking £8,000 global interim maintenance but the respondent's position in Court was an offer of £4,500 plus £1500 per month for legal costs, a difference between the parties of £2,000 per month. 

3.        The parties agree the following, namely that the respondent will continue to meet the maintenance costs and tuition fees for C, amounting to £22,000 per annum, the respondent will continue to meet the school fees and related expenses (including   mobile phone bills) in respect of D and E in the sum of £9,600 per annum, the sale of the St Ouen property and that the petitioner is to retain the furniture and effects at the St Ouen property. 

Areas of dispute

Proceeds of sale of the St Ouen Property.

4.        The net proceeds of the St Ouen property are likely to be approximately £938,895.  The petitioner has found a property she wishes to buy at the price of £887, 500 and with            costs of purchase this will come to £910,637.80.  The relocation cost will be about £10,000.  The petitioner wants the balance of proceeds of the St Ouen property after this as     well amounting to £18,000 to pay towards furniture, works at the property and a washing machine, which together will cost in excess of £18,000.  In his open position the respondent stated that the proceeds of sale of the St Ouen property may be paid to her, to be taken into account during the final settlement, but in Court indicated that would          only be the case if interim global maintenance was ordered at £4,500 per month and no more.  He did however agree that if the maintenance ordered was more than £4,500 per month, she should have £910,637 toward the cost of another property and her costs of moving, but the balance must be placed in an escrow account. 

The income and expenditure positions of the parties

The petitioner's income and expenditure

5.        The petitioner has no income of her own and is seeking on an interim basis £8,000 per month, for her, the two younger children and when C is at home from university.  This sum is to include legal and accountancy costs of these proceedings.  She has been receiving maintenance of £3500 per month and the respondent has paid her legal fees to date.  The respondent has not served a questionnaire on the petitioner and apparently is not challenging her budget although he did say she has managed on £3,500 per month, plus some additional payments made by him.  Advocate Whittaker submitted on her client's behalf that she cannot make ends meet and she has had to get rid of the cleaner and the only holiday she has had since separation is a week in France in contrast to the respondent who has been to South Africa, skiing in France and he is going to Italy plus he has a large number of weekend breaks in London. 

The respondent's income and expenditure

6.        The respondent's open position had been that he pay £4,500 per month as interim      global maintenance and undertook to pay her reasonable legal fees upon "the petitioner approving such accounts".  In Court he accepted that whilst he would not       vet her legal fees, he could agree a figure of £1500 per month for legal fees.  The respondent's net income is £312,824 per annum, monthly being £26,068.60.  His total current expenditure according to affidavit is £24,879, and at present he has a surplus of income over expenditure.  In his affidavit, sworn the 26th May, 2010, he states that mortgage repayments will increase in December 2010 from £6380 per month to £12,047.  There is a letter from his former advocates which states that the mortgage on the St Brelade property is now £12,000 per month, but this is not correct.  The current amount the respondent spends excluding payments for the children is £21,053.61 per month and payments for the children is £3,816.47 per month.  However, once the mortgage on the St Ouen property is redeemed there will be a saving of £1,741.30 per month.  In addition the figure of £416 for the pony is a one off payment.  As a single man he is spending £673 per month on food, household items and weekday lunches and in addition £200 per month entertainment and meals out and a further £250 for additional food when he has the children.  Given that the wife is spending £1000 on her and the children plus £200 school lunch times, I accept the submission made by Advocate Whittaker that the figures for him are excessive.  Furthermore the respondent says he spends £500 per month on his holidays (£6000 per annum) and £600 per month for the children but has not taken them away save for a few days at Alton Towers and Centre Parcs nor does he apparently plan to do so this summer.  The petitioner by contrast says the holiday expenditure for her is £90 per month (£1080 per annum) for herself and £100 per month for the children so the figures he gives in contrast to hers are very high.  The respondent spends £900 on finance for his Aston Martin each month and a total of £1,294.67 on finance for his boat and a further £965.55 on its upkeep, totalling £2,260.22 per month on his boat. 

7.        The respondent agrees to continue the payments for the children of £22,000 per annum for C and £9,600 for the two younger children - £31,600 in total.  The respondent has been paying the petitioner's legal costs.  He has allowed for a monthly figure of £2,000 in his affidavit although the letter from his then lawyers of the 14th July, 2010, refers to £2,500 each per month on legal fees.  He submitted it was not possible to sustain a figure of £2,500 per month each and he accepted that it was not appropriate to vet her legal bills, but proposed to pay her £1,500 per month for her legal bills.  Advocate Whittaker submitted that the respondent's financial situation was complicated and thus the proposal of £1,500 per month was not sufficient.  

8.        The petitioner is seeking an overall interim figure for herself and the children of £127,600 per annum.  The respondent's total income is £312,824 leaving a balance to of £185,224 or £15,435 per month for him.  Having deducted the St Ouen property payments of £1,741, the cost of the pony of £416, and deducted the £3,500 per month and adjusted payments for food and holidays from his expenditure of £21,053 for himself per month, he can meet the interim maintenance payments which the petitioner is seeking. 

The Law

9.        The issue I am being asked to deal with today is in respect of the following sections of the Matrimonial Causes (Jersey) Law 1949, namely Section 25, Provision for Children, Section 29 Financial Provision for a Party to a Marriage, and in particular 29(2)(a), Section 30, Power of Court to order sale of property and Section 31, Contributions for support: interim orders. 

10.      I was referred to S-v-C [2003] JLR N 24 in which it was held that a contribution towards the wife's legal costs may be included in an order for maintenance pending suit and the power is not limited to exceptional cases.  The fact that the husband's expenditure may exceed his income does not make it unacceptable to expect him to contribute towards the wife's legal fees as it is common to have a higher expenditure than usual during matrimonial proceedings.  Payments for legal fees should be reserved for cases where there is a real risk that the wife would otherwise be disadvantaged; this is the position here. 

11.      In the case of K-v-P [2009] JLR N 42 the wife was claiming interim maintenance.  It was held that reasonableness is the sole criterion for deterring applications for interim maintenance.  There was reference to the dictum about equality of arms.  I was also referred to some English cases; A-v-A (Maintenance Pending Suit: Payment of Legal Fees) [2001] 1 WLR 605 and the case of G-v-G (Maintenance Pending Suit: Costs) [2003] 2 FLR 71 as to payment of legal fees.  The power conferred in respect of maintenance pending suit hearings is to be exercised with a view to promoting fairness between husband and wife. 

12.      In the case of TL-v-ML and Ors (Ancillary Relief: Claim against assets of extended     family) [2006] 1 FLR 1263 it was held:-

"The sole criterion to be applied in determining an application for maintenance pending suit was 'reasonableness', which was synonymous with 'fairness'.  A very important factor in determining fairness was the marital standard of living, although that standard of living did not need to be replicated.  In every maintenance pending suit application there should be a specific maintenance pending suit budget, which excluded capital or long-term expenditure more appropriate for consideration at a final hearing.  That budget should be examined critically in every case to exclude forensic exaggeration.  Where the affidavit or Form E disclosure by the payer was obviously deficient, the court should not hesitate to make robust assumptions about ability to pay.  The court was not confined to the mere say-so of the payer as to the extent of his income or resources.  In such a situation, the court should err in favour of the payee."

In this case there has been a detailed statement of the wife's means. 

13.      The respondent referred to the 8^th Edition of A Practical Approach to Family Law as to the matter which a District Judge has to take into account, namely the income, outgoings and needs as they appear at the time, and make an order that will tide the applicant over until the final hearing without causing undue hardship to the parties.  There is a Case Review Hearing on the 1st September, 2010, and providing disclosure has been made in particular by the respondent it may be the final hearing can take place in December.  I do not propose today to consider the future payments he says he will have on his mortgage as from December 2010, nor any issues as to the petitioner's earning capacity.  

14.      Having considered the financial positions of the parties and the law at this time, I consider that the open position of the petitioner as at paragraphs 8(c) (d) (f) and (g) is reasonable which means that the respondent will pay £127,600 per annum for her and the children out of his total income of £312,824 - 40.8% to her and children, 59.2% of the income to him.  

15.      Both parties agree that the St Ouen property be sold.  The petitioner wants the sole proceeds now for herself and the children; the respondent only agrees she should have £910,637 toward the cost of another property and her costs of moving, given the global maintenance figure is over £4,500 and £1,500 towards legal costs.  The difference is approximately £18,000 which I accept she needs towards a washing machine, wardrobes and curtains.   Advocate Whittaker referred me to section 29(2)(a)(b) of the Matrimonial Causes (Jersey) Law 1949.  I therefore order that she receives the whole of the net proceed of the St Ouen property, without prejudice to her claims for a lump sum, but such sum to be taken into account in a final settlement. 

Authorities

Matrimonial Causes (Jersey) Law 1949.

S-v-C [2003] JLR N 24.

K-v-P [2009] JLR N 42.

A-v-A (Maintenance Pending Suit: Payment of Legal Fees) [2001] 1 WLR 605.

G-v-G (Maintenance Pending Suit: Costs) [2003] 2 FLR 71.

TL-v-ML and Ors (Ancillary Relief: Claim against assets of extended       family) [2006] 1 FLR 1263.