Jersey Unreported Judgments

[2006]JRC131

royal court

(Family Division)

20^th September 2006 

Advocate D. J. Hopwood for the Petitioner.

Advocate D. F. Le Quesne Respondent.

judgment

the bailiff:

1.        This is an appeal against a decision of the Family Registrar of the 20^th February, 2006, relating to ancillary matters in the above cause. We shall refer to the petitioner as "the husband" and to the respondent as "the wife".

2.        The brief history is that there was a marriage of sixteen and a half years' duration. There are three children, who were aged 17, 11 and 5 at the time of the Registrar's decision. It is unnecessary to go into the personal circumstances of the parties in any great detail.  Suffice it to say that both of them have in the past suffered from depression and that the wife is now an alcoholic. She is receiving treatment and hopes to recover so as to be in a position to resume work and to look after the two younger children.

3.        The current position, however, is that the two younger children live with the husband in the former matrimonial home. The eldest child lives with the wife in a two-bedroom flat rented from the States. The wife is not in employment but receives various benefits and allowances totalling about £1,000 a month. The husband is a self-employed carpenter, having given up his employment in order more easily to look after the children. He also receives various allowances, and his total monthly income is in the region of £1,600.

4.        The Registrar ordered that nominal maintenance of £1 per annum be paid by the wife for the two younger children, and that a similar nominal amount of £1 per annum be paid by the husband for the oldest child. He left open the question of maintenance for possible revision should the wife be able to return to work. He also made a Mesher order in relation to the former matrimonial home, which is jointly owned and has a value of about £290,000. The outstanding mortgage amounts to about £20,000. It is a States loan with a modest monthly repayment of £304.44, and it will be repaid, if the monthly payments are regularly met, by 2013. The Registrar ordered that the house should be sold when the youngest child completes her education, which will be in 2016 or 2018, and the proceeds equally divided after payment of any sum outstanding on the mortgage and the usual incidental costs of the sale of immovable property. In the meantime the husband was ordered to make the mortgage repayments and to maintain the property.

5.        Both counsel have taken a very pragmatic approach to the issues before the Court in this appeal, for which the Court is grateful.

6.        The question before the Court has been narrowed to a consideration of that part of the Registrar's order which requires that the net proceeds of sale of the former matrimonial home should in due course be equally divided.

7.        Counsel for the husband complains that this is unfair having regard to four considerations.

8.        First, it is said that the Registrar failed to give due weight to the fact that the wife has made no contribution towards the expenses of maintaining the former matrimonial home, including the mortgage repayments, since the parties separated in 2002.

9.        Secondly, it is said that the Registrar failed to give due weight to the fact that the wife has made no contribution to the maintenance of the two younger children since the parties separated in 2002.

10.      Thirdly, it is said that the Registrar failed to give due weight to all the "Section 25 factors" customarily taken into consideration in this jurisdiction and, in particular, the income and earning capacity of the parties and their respective future contributions towards the  expenses of the former matrimonial home and the maintenance of the children.

11.      Fourthly, it is said that the Registrar gave too much weight to irrelevant factors such as the low housing costs of the husband and the possibility that he might meet a wealthy partner and have no need of the former matrimonial home.

12.      Counsel for the wife has responded that the husband is enjoying the benefit of the wife's share of the former matrimonial home and will continue to do so for at least another ten years, or even twelve years, until the youngest child reaches the age of 16 or 18. That benefit, it was submitted, must be weighed in the balance with the husband's obligation to pay the mortgage and to maintain the property. In oral submissions counsel for the wife contended that the mortgage payment was in reality a form of rent for the jointly owned property. He submitted that the true rental value of the former matrimonial home was very much in excess of the mortgage payments being met by the husband and that the husband was, accordingly, enjoying a significant benefit in that respect.

13.      Counsel for the husband on the other hand submitted that if the 50/50 split in the net proceeds of sale were to be maintained or upheld it would be unfair on his client that any capital investment which he made, for example by building a conservatory, would also benefit the wife.

14.      Counsel for the wife's response to that was, first, that this seems highly hypothetical having regard to the straitened financial circumstances of the husband and, secondly, that viewed in the round such disadvantage, hypothetical or not, was more than compensated for by the advantage of living very cheaply and (in due course) at no cost in a joint asset, namely, the former matrimonial home

15.      The first consideration for the Court is, of course, the welfare of the children and the desirability of providing secure and appropriate accommodate for them. The Mesher Order was correctly identified by the Family Registrar as the appropriate means of achieving that end.

16.      So far as the question of fairness is concerned, we think that the Registrar reached the right conclusions in holding that the advantages enjoyed by the husband in the occupation of the former matrimonial home were balanced by the obligations to pay the mortgage and to maintain the property, and to maintain and look after the two younger children of the marriage. It follows that the Appeal must, accordingly, be dismissed.

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