Jersey Unreported Judgments

[2007]JRC069A

royal court

(Family Division)

20^th March 2007 

 

Before     :

Vincent James Obbard, Esq., Registrar, Family Division

 

 

Advocate R. E. Colley for the Petitioner.

Advocate C. E. M. Sandercombe for the Respondent.

judgment

the registrar:

1.        In this case, which I decided on 12th March, 2007, I am asked:-

(i)        to determine how the principal asset, namely the former matrimonial home, should be divided; and

(ii)       to determine child maintenance and the extent to which the husband should contribute to child care expenses.

Distribution of Capital

2.        The husband is 43, the wife, 39.  He is a brooksman for the Public Services Department and she is a finance clerk.  Before their marriage in May 2000, they lived together for nine or 10 years.  They separated in January 2005, so it has been a long relationship.

3.        They have 2 young children, J aged 6 and M aged 2, who have lived with their mother in the former matrimonial home since the separation.

4.        The former matrimonial home is jointly owned and its value is now £340,000.  It is subject to a bank mortgage, in the sum of £198,484, so the equity is £141,516.  The wife pays the mortgage expenses of £1,250 each month.

5.        There are no other assets which need concern the Court.  Each party should retain those items to which he or she is already entitled, apart from the ownership of a car which has been agreed.

6.        The dispute between the parties is about the amount of compensation payable to the husband in the event that the house is transferred into the sole name of the wife, or, if the house is to be sold, the Court must determine the proportions in which the proceeds are divided.

7.        The wife's advocate contends that, since the wife has been the principal earner throughout, but has herself, solely, paid the mortgage since the parties separated she has contributed more to the marriage than the husband.  The husband's advocate contends that, in accordance with the principles set out in English case law, equal partners in 15 year partnership deserve equal shares in capital upon its distribution as a result of divorce.

8.        In deciding which of these contentions should prevail, or be balanced against each other, my first consideration must be the children of the marriage.  There is no dispute that they should remain with their mother; the question is whether or not it is inevitable to cause their present life in the only home they have ever known to be disrupted by a move to a cheaper property.

9.        At first examination of the facts, I would have been inclined to say there was no alternative.  Looking at her most recent summary of assets income and expenditure, the wife earns £29,040 net per annum.  She usually receives a Christmas bonus and also an ex gratia payment, making a total of £31,511 or, divided by 12, £2,626 per month.  Her monthly income is supplemented by child maintenance and a contribution to nursery fees, making her final total income per month the sum of £3,068.

10.      Her monthly expenditure amounts to over £3,500.  This is not as high as claimed by her (£3,968) because some items are deducted from her wages and there may be some repetition of sums spent on the children.  However, which ever way one looks at it, her income is unlikely to match her expenditure, even if she is frugal.  There is insufficient flexibility for her to able to afford to pay interest on any money borrowed to pay a lump sum to the husband.  Indeed, she has not even enquired from a bank if money could be made available to her.  She is only just able to pay the bills as they arrive.

11.      Her most expensive items are:-

Mortgage per month                                               £1,250.00

M's Nursery Fees per month                                  £  990.17

J's after school fees per month                               £  265.00

Total                                                                     £2,505.17

This is 85% of her income and leaves her very little to pay utility bills, food and clothing for herself and the children.

12.      Mercifully however, the wife stated in evidence that her family are prepared to loan her up to £30,000 for her to buy the husband's share in her home.  The husband gave evidence to the effect that an offer of £25,000 to purchase the husband's interest had been made.

13.      I have to decide whether this is enough.

14.      Looking at the situation from the husband's perspective, I think not.  It was a long relationship.  His need to house himself must be considered.  At the moment he earns considerably less than the wife.  I have seen a recent pay slip.  His net pay per week is £409 per week.

15.      On his list of expenditure, his most expensive items are (per week):-

Rent                                                                     £185.00

Child Maintenance                                     £  80.00

Child Care Fees                                                    £  22.00

Total:                                                                    £287.00

16.      After feeding and clothing himself and paying bills (excluding his pension contribution which is deducted at source) the total expenditure according to his affidavit sworn in January comes to £367.45.  He wants to have some money over for the children and talked of keeping money aside to pay bills.  There was talk of a wage increase and a reduction in his ITIS tax contributions, but I do not place great emphasis on the small surplus per week he appears to have.  It is not greatly significant when considering how the principal asset, the former matrimonial home should be divided. However, it does demonstrate to me that he has no difficulty in paying maintenance and a contribution to child care costs at the present rate.  (See below.)

17.      What stands out is that the burden of maintaining the former home as a residence for the wife and her children is falling on the wife's shoulders alone. Indeed her evidence was that she had made a contribution of £30,000 towards the property since March 2005, at no little sacrifice to her.  For this, she must be given credit.

18.      My decision is that the equity of £141,516 should be divided as follows:-

(i)        The wife will be entitled to sole ownership in return for payment of 2 lump sums totalling £45,000.

(ii)       The first lump sum of £30,000 is payable on the transfer of the property into her name.

(iii)      The second lump sum of £15,000 will be secured on the property and become payable on the younger child ceasing full time education, the mother and children moving from the property or the death of the mother.

19.      £45,000 represents just under 32% of the equity, leaving the wife with just over 68%.  It was indeed a submission made by the wife's advocate in the course of her summing up that "this is not a 50/50 case" and she went on to say that a division in the ratio of 70/30 in the wife's favour would be more appropriate, because of the higher level of financial contribution by the wife.  In support of this submission she relied on Commissioner Hamon's judgement in Newell -v- Sandford (Jersey Unreported 11^th September 2001).  There is a passage on page 12 of the judgement which reads:-

"Financial needs are not the be all and end all of the matter but we are satisfied that the petitioner, because of her age and uncertain future, has a greater need for more capital than the respondent.  Each will need to purchase a property.  The Greffier is correct when he says in his judgement that the petitioner "has struggled over the years to maintain the property and to bring up 2 children single-handed with some financial assistance, but only within the limited means of the respondent."

20.      Despite the apparent similarity in the facts of Newell -v- Sandford, I must be careful to draw the distinction between "need" and "contribution".  In this case, Advocate Colley is seeking a greater share on the basis of the wife's higher contribution.  In Sandford, it was the wife's greater need which prevailed.  Nevertheless, the point is well made that an equal division of capital following the principles of fairness set out in White -v- White [2001] 1 All ER 1 must be tempered by all the guidelines set out in Section 25 of the UK Matrimonial Causes Act, 1973, including the needs of the children, the age of the parties and the length of the marriage or relationship.  This is especially true in a case, which does not concern "big money", and where the competing needs of the parties will become the principal concern of the Court, rather than the best means of dividing available capital in a fair manner.  Quite simply, there is not sufficient money to go around.

21.      I must also make the point that Advocate Colley was basing her submission of 70/30 division on the basis of an earlier house valuation, before the value of the former home had increased to its present £340,000.  She argues that the delay in coming to Court has been caused by the husband's intransigence and it has been costly to her client.

22.      However, if there has been a delay, it has been, at least in part, the fault of the wife and her advisers in not putting forward a larger offer than £25,000 at an earlier date.  The matter of costs is dealt with below.

Child Maintenance

23.      The question of child maintenance and a contribution towards after school care is capable of solution on the basis of need. Even if, at present, the husband's contribution may exceed the CSA guidelines, Advocate Colley rightly pointed out that this is precisely what they are, just guidelines.  As I pointed out in the case of S-v-G [2003] JLR Note 29 it is convenient to consider child maintenance, at least at the lower rates, as an item in the family budget.  In this case, the wife relies on the existing level of maintenance to stay afloat, financially speaking.  Both maintenance and the contribution to child care costs must remain at their present level until either the nursery fees are no longer incurred (but they will probably be replaced by additional after school care), or the husband takes on a share of responsibility in looking after the children, partly in order to save money.  His working hours will allow this and, apart from certain difficulties which are not relevant to financial matters, there is no good reason why the husband should not play his part in taking care of the children.

Costs

24.      There remains the question of costs.  Mrs. Colley for the wife would contend that the delay in resolving this case has been caused by resistance of the husband to obtaining advice and delaying the resolution of matters which have been presented to him.  The delay has also, at least in past, been caused by the inadequate offer to buy out the respondent's share in the house.  I acknowledge that the wife's legal fees exceed those incurred by the husband.  However, there was an alternative, namely, to obtain Legal Aid at an earlier date than when she actually did so.  I do not think it appropriate to deal with this discrepancy by way of a costs order.  The fact that I am awarding the wife nearly 70% of the value of the home after a long relationship, leaving the husband with just over 30% is sufficient to balance any financial disadvantage to her.

Authorities

Newell -v- Sandford (Jersey Unreported 11^th September 2001).

White -v- White [2001] 1 All ER 1.

UK Matrimonial Causes Act, 1973.

S-v-G [2003] JLR Note 29.