[2009]JRC036A
royal court
(Family Division)
2nd March 2009
Before : |
V. J. Obbard, Registrar (sitting alone). |
Between |
B |
Petitioner |
And |
C |
Respondent |
And |
B |
Co-respondent |
IN THE MATTER OF A VARIATION TO AGREEMENT - SPOUSAL MAINTENANCE TO BE REDUCED BY HALF IMMEDIATELY AND TO CEASE AFTER ONE YEAR - HUSBAND TO PAY CERTAIN EXTRA EXPENSES FOR CHILDREN - HUSBAND TO PAY ONE HALF OF WIFE'S LEGAL COSTS.
The Petitioner appeared as a litigant in person.
Advocate H. J. Heath for the Respondent.
judgment
the REGISTRAR:
1. The parties were divorced in 2003 after a short marriage of 5 years.
2. In October 2003 a memorandum of agreement was drawn up by the family's solicitors. It dealt with how capital was to be split between the parties: there were proceeds of sale of a property to allocate and the value of the husband's police pension to take into account. It also dealt with child maintenance for the 2 children with spousal maintenance to be paid by the husband to the wife at the rate of £400 per month. The spousal maintenance was to be reviewed:-
(i) annually by agreement, or failing agreement in accordance with the annual increase in the Jersey RPI index;
(ii) to cease altogether in the event of the wife's re-marriage or cohabitation for 6 months;
(iii) in the event of a material change in circumstances of either party.
3. The husband is applying to be released from paying spousal maintenance, on the basis that the reason why it was included in the agreement was to enable the wife to look after the children until such time as they should go to school. Now that they are both well established at school, he argues that she can maintain herself by working longer hours;
4. The wife disagrees and argues that it was an essential part of the agreement for spousal maintenance to continue to be paid. Financially, the husband continues to be better off than she is and he can afford to pay it.
5. Looking at the agreement, the spousal maintenance was to be "reviewed annually". In any event it was to be reviewed in the event of "a change of circumstances". Unfortunately, I have no guide as to the basis of the review. All I can say is that a constant watch on its continued payment was envisaged. Unfortunately the parties have been unable to agree, but an annual review strikes me as an important feature. It implies to me that spousal maintenance would not continue for ever.
6. I would go further than that and say that it might imply that it would continue only until the wife was able to support herself. In this respect I made a similar decision in the case of J-v-M [2008] JRC031A.
7. Despite the wife's concerns that she might not be able to afford the rent on her property if she no longer receives the maintenance, I was not sure from a letter to her from Social Security that this is the case. If her maintenance reduces, she may yet qualify for Income Support.
8. The husband referred to correspondence with the same family solicitors at a time when he argued that it had been agreed between the parties that spousal maintenance should cease. The wife withdrew from negotiations and took independent advice.
9. On the matter of spousal maintenance, my decision is that it should be phased out, now that the wife is capable of supporting herself, even if it means that she has to ask for assistance from Income Support. I do not think it is the duty of the Court to balance the incomes to parties after their divorce, even if it means that one party will be capable of saving to buy their own property and the other will not. At the time of the decree nisi it appears that the payment spousal maintenance was a means of enabling the wife to obtain financial independence. I think she has now achieved that.
10. The wife herself has applied for an increase in child maintenance in the event her spousal maintenance is reduced. Curiously, the maintenance payable per child of £433 per child per month or £100 per week per child is in line with the Child Support Agency figure of £200 for 2 children on a net income of £961 per week (£50,000 per annum). So I do not propose to increase the child maintenance to a greater amount.
11. However, it would be reasonable for the husband to contribute to certain extra expenses. Article 35 of the Matrimonial Causes (Jersey) Law 1949 makes it clear that the Court can "from time to time" make provision for children of divorced parents.
12. It would be reasonable for him to make contributions, in particular for school meals (which has already been the subject of dispute) and for uniforms, school trips and extra curricular activities. I would suggest that the wife draws up an account when these items are arranged or purchased, or that the husband pays direct to the school, e.g. for swimming lessons.
13. Both sides are applying for costs. At first sight, the husband will say that he has succeeded in his principal application and would therefore be entitled to have his costs (if any) paid by the wife. I say "if any" because he has represented himself. However, as the wife's advocate has made clear, the wife is in the weaker position financially speaking, and has felt threatened when the husband failed to pay the maintenance, to the extent that she had to sue to recover unpaid maintenance. It is clear from her evidence that she has drawn considerable comfort from her legal representation by Advocate Whittaker and by Advocate Heath at the hearing. The wife's legal bills have not been unreasonably incurred. The husband has, to his credit, conducted his case well, but without the expense of any legal advice. We are here in part discussing the maintenance available for 2 young children who live with their mother. I do not see why the mother should bear the full cost of her own legal representation, which has been in her mind essential to obtain a fair assessment of maintenance for herself and her children. If I were to allow this to happen, it would mean, in effect, that she would have to balance her family budget by giving less to the children. I therefore think it reasonable to order that the husband should pay one half of the costs incurred by the mother, of and incidental to this hearing.
Authorities
Matrimonial Causes (Jersey) Law 1949.