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Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Matrimonial - a clean break [2012] JRC 000 (02 November 2012)
URL: http://www.bailii.org/je/cases/UR/2012/2012_000.html
Cite as: [2012] JRC 000, [2012] JRC
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Matrimonial - points of law in relation to a 'clean break'.
BAILII Citation: [2012] JRC 000
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Before : |
Judy Marie O'Sullivan, Registrar, Family Division. |
the registrar:
1. The husband is seeking a clean break ... The wife argues that there is no statutory power enabling the court to order a clean break unless both parties agree (see Matrimonial Causes (Jersey) Law 1949). I was referred to the case of Le Geyt v Mallet and Rodrigues [1993] JLR 103. This was a case where the court was asked to consider a maintenance agreement which purported to exclude any further claims against each other and the then Bailiff held that although the English law on "clean break" provisions of section 25A of the Matrimonial Causes Act 1973 could not be imported into the law of Jersey, a court order giving effect to such an agreement acted as a bar to further application by the parties, and a binding agreement could accordingly be made in appropriate circumstances, even though it might effectively amount to a "clean break." I was also referred to Dipper v Dipper (1981) Fam 31, a Court of Appeal case from 1980 in which it was held that "the court has no power to dismiss of its own volition and without the consent of the person applying, so as to bar a subsequent application and therefore the court had no jurisdiction to dismiss the wife's application for periodical payments since she had not consented to it being dismissed."
2. However, this case distinguished the House of Lords case of Minton v Minton [1979] 1 All ER 79. In this case, it was held that on a true construction of the Matrimonial Causes Act 1973, s-‰23(1) the court was empowered to make a final order for a spouse's financial provision, and where the court made a final order it had no jurisdiction to make a second or subsequent maintenance order after an earlier application had been dismissed.
Lord Scarman said:-
"I would not deny the court power, where it thinks it just, to achieve finality as between spouses (children are a different matter) unless compelled to do so by clear enactment. Your Lordships are under no such compulsion: on the contrary, s-‰23(1) is perfectly clear: it permits the court to achieve finality, if it thinks it appropriate, practical and just."
3. There was clearly a debate in England as to whether or not a court could dismiss an application for periodical payments without consent, which debate was ended by the amendment to the law. There are however a number of recent Jersey cases which state that it is the policy of the Court to strive to achieve a clean break if this can be achieved without undue financial hardship and also to order maintenance for a limited period. I was referred to D v E and F 2001/81B where there was provision for maintenance for a limited period until such time as a lump sum was paid, H v G 2002/179 where the issue was not whether there should be a clean break, but the time by which the husband could pay the capital ordered to effect this, Y v N [2005] JRC 116 where a clean break was imposed, O v O [2005] JRC159 where a clean break was imposed on the fulfilment of certain events, J v H& R [2005] JRC 160, in which the Royal Court upheld the order of Registrar Obbard whereby there was to be a clean break, and the wife who was a qualified radiographer was considered capable of increasing her earning potential by working more hours but she may need more training, J v M [2008] JRC 031A where spousal maintenance was to be paid with a review in 5 years but the Court would strive for a clean break to enable the wife to become financially independent and any assessment of a lump sum was to be on the time needed for that and the size of the sum to enable her to become financially independent, not on the basis of provision of maintenance during joint lives, B v C and B [2009] JRC 036A where spousal maintenance was "phased out" as the wife was able to support herself, O'Brien v Marett [2010] JRC 003, in which a clean break was imposed although the wife had asked for a nominal spousal maintenance order. In the Matter of S [2011] JRC119, spousal maintenance was ordered subject to a review in 3 years. Here the main asset was an income producing asset but the court said it was trying to secure a clean break wherever possible. The wife was 48, she was in part-time employment as a stable hand and the husband's income of £282,420 was sufficient to sustain the family. However the Court would try to secure a "clean break" wherever possible.
4. Both parties referred to the case of P-S v -C [2003] JRC 116. The wife was 57 and had "devoted herself over 30 years to the care of her family". In paragraph 7 of that judgment, the then Bailiff, Sir Philip Bailhache said:-
"in general, the court should strive to achieve a "clean break".
5. Both parties referred to Warn v Cornetta [2009] JRC 202. Here the parties had cohabited for 10 years and were married for 16 years. The wife was 47. The court accepted, that because of her ill-health spousal maintenance could not be terminated without undue hardship to her and although "it is the policy of the court to strive to achieve a clean break". However in this case spousal maintenance was to continue until further order "but will be reviewed after three years from the date of this order, at which point it is our serious expectation that the respondent will have achieved financial independence." The husband could seek an earlier review if the circumstances warranted it.
6. I therefore reject the wife's contention that I am not able to order a clean break.
Authorities
Matrimonial Causes (Jersey) Law 1949.
Le Geyt v Mallet and Rodrigues [1993] JLR 103.
Matrimonial Causes Act 1973.
Dipper v Dipper (1981) Fam 31.
Minton v Minton [1979] 1 All ER 79.
D v E and F 2001/81B.
H v G 2002/179.
O v O [2005] JRC159
J v H& R [2005] JRC 160.
J v M [2008] JRC 031A.
B v C and B [2009] JRC 036A.
O'Brien v Marett [2010] JRC 003.
In the Matter of S [2011] JRC 119.
Warn v Cornetta [2009] JRC 202.