[2011]JRC159C
Before : |
M. C. St. J. Birt, Bailiff, and Jurats Kerley and Nicolle. |
Between |
A |
Representor |
And |
B |
Respondent |
IN THE MATTER OF PP
Advocate H. J. Heath for the Representor (wife).
Advocate M. R. Godden for the Respondent (husband).
judgment
the bailiff:
1. The application before us today relates to an order made by the Registrar on 16th November, 2010, when amongst other matters, he ordered that the former matrimonial home, in which the husband was living then and is still living, should be sold and that the wife should receive seventy-five per cent of the net proceeds or £350,000, whichever was the greater. At the time the market value was agreed to be £875,000. The husband was also ordered to pay within seven days, the sum of £14,700 in respect of the wife's pension with Aviva. That he has failed to do.
2. In January 2011, notwithstanding the order, the wife agreed in principle that she would be willing to transfer the property to the husband for the sum of £350,000, thereby enabling him to remain in the matrimonial home. At that stage she was also willing to forego the £14,700 Aviva payment for the sake of a quick agreement.
3. Now in fact, that didn't happen. In our judgment, the delay was mostly due to the husband. Eventually, lawyers were instructed in June to process a transfer of the property from the joint names of the parties to the husband alone.
4. On 7th July, an offer from a third party was received in the sum of £880,000. That was discussed and the wife agreed that that offer should be declined because it would only give her about £2000 or so more than the £350,000 which the husband was to pay her and she was happy at that stage to help the husband to remain in the former matrimonial home. However, the third party purchasers then increased their offer to £920,000. The wife, not unnaturally, wished to accept that offer as it would result in a greater sum than the husband's offer. The husband on the other hand refused the offer. Hence these proceedings.
5. In the meantime, Ogier have been instructed to act in connection with the sale to the third party although that must have been by the wife alone, and matters progressed with the purchasers. We were told that the purchasers have sold their house and are living in rented accommodation; they would be in a position to proceed tomorrow week, that is Friday 19th August, 2011.
6. The calculations which have been given to us suggest that, after deduction of the mortgage and the selling costs, the parties would be left with a total of £513,600 following the sale. The wife would be entitled to seventy-five per cent of that, which makes £385,200. In addition, of course, the husband would have to pay the Aviva monies of £14, 700, with the result that the wife would receive out of the proceeds of sale a total of £399,900. It is possible there might be some deductions from that because if, as seemed possible at one stage, the Viscount had to evict the husband or to be party to the contract of sale should the husband refuse to do so, his costs would fall to be deducted.
7. Following the institution of these proceedings the husband has increased his offer in stages. As at the opening of these proceedings today he had increased his offer to £400,000 and during the course of the hearing before us he increased it to £405,000. In other words, he will pay £405,000 to the wife and he will also be responsible for all the transfer costs, that is the legal costs in connection with the transfer; he will also take over the mortgage. Thus the wife would receive £405,000 clear. There was doubt, quite understandably, on the part of the wife as to whether this sum would in fact be forthcoming, but £400,000 has been placed in the client account of Sinels, who act for the husband in connection with these proceedings and therefore we are assured that the monies are available for the purchase. The husband says that he has borrowed this sum from his father and also from a friend.
8. We are told that the husband would be in a position therefore to pass contract also on Friday 19th August, 2011, in respect of a transfer out of the joint names to the husband. The husband's offer includes the Aviva sum of £14, 700. We have been taken through the calculations and it is clear that, on the basis of £405,000, the wife will receive marginally more on a transfer to the husband than she would on a sale to the third party; certainly she will receive no less. There is some uncertainty as to what fees might be payable to Ogier in respect of the aborted work they will have done.
9. The Court in matrimonial cases always starts from the position that a former matrimonial home should not be sold unless it is necessary. If it can be preserved for one of the parties, particularly if there are children involved, that is preferable. At the time of the order of the Registrar in November 2010, that did not seem possible. However, now that the husband has, if belatedly, procured borrowings from his father and others, it is now possible. In this case there are two children aged twenty and eighteen. The son, who is twenty years old, is at university but he naturally comes home during the vacations and during that time he lives with the father in the former matrimonial home. The daughter, who is eighteen, has been living with the mother but now appears to be living wholly or partly with the father in the former matrimonial home. It seems to us undoubtedly to be in the children's best interests that they are able to continue to stay in the matrimonial home if this is possible.
10. It has to be recalled that, as recently as July, when the third party offer of £880,000 was received, the wife was willing for the husband to remain in the property and buy her out. The only reason given to us for her change in stance since then is that she feels a moral obligation to the purchasers and secondly she is worried that taking over the house, which apparently has a large garden, will be too much for the husband.
11. We understand her feelings of moral obligation to the purchasers but the fact is that the husband never agreed to the sale and they could not be sure that it was going to go through. Furthermore, it is inevitably a fact of life that sales of properties do fall through for one reason or another. As to the second reason we do not really follow the change. She was happy for the husband to take over the property in July. She says she has been reminded of the size of garden since then and its state but it is really up to the husband to look after his own interests in that regard rather than the wife.
12. In our judgment, given the fact that there are children involved here, it would be wrong to enforce an order which will have the effect of forcing the husband and the children to vacate the former matrimonial home within seven days unless there is a clear prejudice to the wife in doing so. If there were, then we would agree that the order would have to be enforced. But in our judgment there is no such prejudice. The offer of £405,000 will ensure that she receives, as we say, marginally more and certainly no less than on a sale. In those circumstances the interests of the children in particular lead us to conclude that it would be wrong to force a sale at this stage when there is no benefit to the wife in doing so.
13. Now we do understand why the wife has sometimes been sceptical as to the husband's desire to see through proposals. So what we intend to do is this. We are going to adjourn this case until 9.00am on Tuesday 23rd August, 2011. That is because we are assured that there is no reason why the contract for the transfer to the husband should not go ahead on Friday 19th August. If it goes ahead, then presumably it will not be necessary for this Court to re-convene and we certainly hope that is the case. If for some reason it does not go through on the 19th then this Court will be willing to sit and, at that stage, if we felt that the husband was guilty of delay or procrastination, we might well then revert to enforcing the order, assuming of course that the third party purchasers were still interested, but one assumes that if they like this house, for the sake of a week they probably would still be. So it is really up to the parties. But our order today is that we adjourn this matter. We do so on the basis that the wife should transfer the property out of joint names into the husband's name in exchange for £405,000 net, in other words the husband will pay all transfer costs including stamp duty and legal fees and that sum does include the £14,700.
14. As to costs, in my judgment it was reasonable for the wife to bring the Representation. There was an offer and it had to be sorted out promptly, otherwise the offer would go away. It was a good offer and it was only following that that the husband increased his offer to match that at £400,000 or possibly the £405,000 today. So I think that the Representation was properly brought and responsibility for that lies with the husband. As against that, by the time matters came to be heard today, even though the offer was increased by £5000 we are not sure that was necessarily decisive; the £400,000 offer was there before. I think that there has been an element today of the husband being successful. I think a fair outcome is that I am going to order seventy-five per cent of the costs to be payable by the husband on the standard basis.
No Authorities