W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Fisher and Crill.
Advocate M. R. Godden for the Appellant.
The Respondent appeared in person.
the deputy bailiff:
1. This is an appeal and cross appeal against an order of the Registrar of the Family Division made on 3rd October, 2013, on an application by the respondent wife for ancillary relief. The essential terms of the Registrar's order as appears in the Act of Court of that day are as follows:-
(i) There should be a clean break between the parties;
(ii) The appellant was required to transfer his interest in the former matrimonial home to the respondent within 10 weeks of the date of the order upon condition that the respondent bear his reasonable costs in relation to the transfer and that she take sole responsibility thereafter for the repayment of the mortgage due to Skipton International, using her best endeavours to ensure that the appellant's name was removed from the mortgage documents;
(iii) The respondent should pay the appellant the sum of £10,000 on the transfer of the former matrimonial home to her;
(iv) The respondent should pay to the appellant a further sum of £135,000 less any payment in relating to costs as referred to below, and any deduction in relation to the secured provision set out in the order. The sum of £135,000 should be paid by the respondent to the appellant on the last occurring of:-
(a) The second child completing his education inclusive of further education whether it be the older or younger child to do so;
(b) The lifetime enjoyment of K, mother of the respondent, in part of the former matrimonial home coming to an end by whatever means; or
(c) Upon any earlier sale of the former matrimonial home by the respondent;
(d) Upon the remarriage of the respondent if earlier;
(e) Her earlier election.
(v) The funds presently held in escrow to be divided equally subject to the appellant meeting the costs of the divorce as set out in the bill of costs for taxation in the sum of £2,712.50 from his share.
(vi) The parties to retain the contents of the former matrimonial home and personal effects in his or her possession in accordance with the agreement noted by the Court on 9th September.
(vii) Each party to retain assets in his or her own name thereafter including any pension provision that either might have.
(viii) The claims for spousal maintenance and financial provision should be dismissed.
(ix) In relation to child maintenance, the appellant to pay maintenance for the children of the family until each child attains the age of 17 or completes education whichever be the later, calculated at £55 a week while the respondent is in receipt of long-term incapacity allowance and income support in the sum of £15,000 or thereabouts, maintenance to be paid weekly or monthly, on the same terms as the appellant was receiving payment, and the maintenance to be reviewed in accordance with the order.
(x) As to costs, the appellant to pay in addition to the costs of the divorce referred to at paragraph 5, a contribution towards the costs of the respondent in the sum of £12,000 but otherwise, each party to pay his or her own costs.
2. The Registrar delivered her reasons for her decision on 8th November, 2013, in a 22 page judgment running to 73 paragraphs. The structure of the judgment is that the Registrar set out the background facts including the latest open position of both wife and husband. She then went on to set out the history of the marriage and reviewed the financial information which she had been given. She expressed some concern about the appellant's disclosure, although she proceeded on the basis of a conclusion that there were no hidden assets. She then turned to the law and correctly set out that the law governing ancillary relief applications is contained in Articles 27 to 33 of the Matrimonial Causes (Jersey) Law 1949 as amended ("the Law"), noting that when exercising the powers conferred by these Articles, the Jersey courts had regard to the criteria set out in Section 25 of the Matrimonial Causes Act 1973. She noted that each case depended upon its own facts, and that there was emphasis both in England and in Jersey to the need to apply the concept of fairness. In particular, she referred to the Bailiff's ruling in J-v-M  JLR 330 where he said:-
"The touchstone in all cases involving a division of matrimonial assets is fairness. There is no place for discrimination between the husband and wife ... nonetheless the ruthless application of the principle of equality will seldom lead to fairness."
She made it plain that she should have regard to the income, earning capacity, property and other financial resources which each of the parties to the marriage had or was likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the Court be reasonable to expect a party to the marriage to take steps to acquire.
3. She also noted the need to have regard to the financial needs, obligations and responsibilities which each of the parties to the marriage had or was likely to have in the foreseeable future.
4. She noted that she was to have regard to the standard of living enjoyed by the family before the breakdown of the marriage, the age of each party to the marriage and the duration of the marriage, any physical or mental disability of either of the parties to the marriage, the contributions which each of the parties of have made or was likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family, the conduct of each of the parties if that conduct were such that it would in the opinion of the Court be inequitable to disregard it, and in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party would lose the chance of acquiring. Having made a number of comments in relation to the evidence before her under most of these headings, she then announced her decision against the background that both parties agreed that there should be a clean break and both parties agreed that the appellant should transfer his interest in the property C into the sole name of the respondent.
5. The appellant husband contended that paragraphs 4 and 9 of the order set out at paragraph 1 above should be varied on appeal. Insofar as the capital award was concerned, the complaint was that the Registrar misdirected herself as to the appropriate value to be taken into account in relation to the appellant 's assets in his pension fund when allocating the capital division between the parties, failed to give any or any reasonable consideration to his needs and how they were to be met from the capital assets allocated to him, failed to explain how the Section 25 criteria had been applied in order to reach the outcome ultimately ordered; and in relation to child maintenance, had set a level of child maintenance that was unreasonable and/or unaffordable. The final complaint was that there was confusion as to the drafting of the trigger events for payment of the capital sum in paragraph 4. We will deal with that below, but the Court's reading of the Act, with which the respondent agreed, indicated that there was no substantial problem.
6. The respondent cross appealed. She contended that the Registrar misdirected herself as to the appropriate date for the valuation of the parties' interest in the former matrimonial home and as to the valuation to be attributed to their respective interests. She contended that the Registrar failed to take into account the debt owed jointly by the parties to the respondent's mother, and failed to give directions as to how that debt should be met and by whom. She contended that the Registrar failed to give appropriate consideration as to the ability of the respondent to meet the terms of the order either at the present time or when the lump sum payment came to be made, and that the Registrar failed adequately to take into account the additional costs which had been incurred by the respondent as a result of the appellant's ligation conduct. Furthermore the complaint was made that the Registrar failed to attribute the correct figure to the costs of the respondent, and by implication it is therefore said had the wrong material to hand for the purposes of calculating the overall split of capital assets. The respondent too asserts that the Registrar failed to explain sufficiently the arguments received and how the Section 25 criteria had been applied in order to reach the outcome ultimately ordered. Although the issue was raised only obliquely, if at all, on the papers filed for the appeal, she contended that fairness required the conduct of the appellant during the marriage generally to be taken into account.
7. We remind ourselves immediately of the test we are to apply on appeals of this kind. It is set out in Downes v Marshall  JLR 265 at paragraph 20 where Sir Philip Bailhache, Commissioner, said this:-
"What then should be the test on appeal to this Court? We wish to underline the fact that we confine ourselves to appeals from the Family Registrar and his Deputy pursuant to Article 3 of the Matrimonial Causes (Jersey) Law 1949 where evidence has been heard before them and a discretion has been exercised. We are not concerned with appeals from the Master of the Royal Court (notwithstanding that they are all Greffier substitutes) where different considerations may apply. An appeal from the Family Registrar should only be allowed if there has been a procedural irregularity or if, in exercising his discretion, he has taken into account irrelevant matters, or ignored relevant matters, or otherwise arrived at a conclusion which the Court believes to be wrong. This test is not precisely the test applied on appeal from this Court to the Court of Appeal. It reserves a wider discretion for this Court to intervene, but it places nonetheless greater weight on the Registrar's exercise of discretion. This test will, we think, establish the right balance. Sufficient weight is to be attributed to the Registrar's findings of fact and exercise of discretion to discourage litigants from seeking a fresh bite at the cherry. On the other hand, this Court will have the power to intervene if it thinks that the Registrar has gone wrong to the extent that intervention is required in the interests of justice and fairness."
8. The remarks of the Commissioner in that case are particularly apposite to the present case, given that evidence was heard before the Registrar for four consecutive days from 9th September to 12th September, 2013, and the hearing continued on 3rd October, 2013, again for substantially the full day. Before us, the appeal has lasted approximately a day and a half. When one has regard to the overall assets about which argument is taking place, the total legal costs involved are wholly disproportionate. The respondent was represented by Advocate Whittaker below the Family Registrar but represented herself on appeal. Advocate Godden appeared for the appellant both before us and before the Register. Costs are a factor in this appeal as will be apparent later in this judgment.
9. We gratefully adopt the history of the marriage set out by the Registrar in her judgment:-
"7. The parties met in 1992 when the husband was a manager of a Woolworths branch in London and the wife was finishing her degree in Sports Science. In 1993 they became engaged and then lived together until they married. They moved to various locations in England due to his work and they bought E for £57,000 with a deposit from the wife's mother of £3,000 and a "furnishing" loan. The wife worked as a home carer and a part time fitness instructor, taking 6 weeks maternity leave for each child. The husband was the main financial contributor as a retail manager. In 2003, the husband decided to train as a police officer. He moved to Jersey in 2004, staying with K [the wife's mother] and in July 2004, E was sold with net proceeds amounting to £148,000. The wife and children moved to Jersey and for a year after they moved they lived with K. The husband joined the States of Jersey Police force and the wife took care of the children and did not work, she says, because the husband was on shifts. In 2005 she inherited £50,000 from an uncle which was shared with the boys, and invested the money in premium bonds.
8. The parties hoped to purchase a property in Jersey and put in an offer of £350,000 on a property but could not afford this because the maximum mortgage the husband could raise was £175,000. Because of the price of properties in Jersey, after discussions with K, in 2005 an agreement was entered into whereby as an early inheritance, the land on which K's home was built would be transferred to the husband and wife, the property would be completely re-built to provide accommodation for them and the children but also to provide a granny home for K. The husband accepted that this worked out as a good solution as it provided them with a bigger property than they could afford. The wife says she agreed with her mother to provide any necessary care for her. They paid K £100,000 which she then paid to the wife's brother by way of compensation for loss of his inheritance. The brother apparently used this as a deposit on a property. The husband says that the wife's brother signed papers accepting full and final settlement of any claim on the property or land on demise of K, but I have not seen any documents confirming whether or not this is so, and the wife does not accept that there was such an agreement and says nothing was signed to this effect. They were left with about £30,000 from the E proceeds and had to take out a mortgage of £180,000 with Jersey Home Loans to utilise towards the rebuild. The wife project managed the rebuild from July 2005 to 2006. The parties entered into a binding contract with K which recorded the payment of £100,000, required the demolition and construction of a new property which would give K full enjoyment during her life without payment of the ground floor rooms and conservatory and garage and garden to the west, set out in oblique lines on a plan. The existing 4 bedroom bungalow, with kitchen, sitting room and dining room was therefore demolished. The husband and wife were to keep the buildings in a good state of repair and decoration, provide and pay for all services of water, electricity, heating and telephone, but K was to maintain her rooms and keep her part of the garden in good order. The husband and wife were to pay parish rates, comprehensive insurance, and should they fail to insure K could then insure and would then be due the money from them. K was not to let anyone else live in her part of the premises or lease it.
9. The wife maintains that with the mortgage of £175,000 at 5 times the husband's then salary, the most expensive property they could have purchased would have been a property worth £305,000. I do not know how much K's property was worth as it stood but the husband agreed that K could have sold her property for more than £240,000. I do not know how much the rebuilding added to the property price. While the home was being rebuilt they all lived in a rented cottage. The whole build cost £140,000 plus £5,000 for planning etc. The granny flat comprises two thirds of the ground floor. By 2007 some of the mortgage had been paid off but they moved their borrowing to the Skipton Building Society for £190,000, in effect borrowing a further £20,000......".
10. Leaving aside the arrangements in relation to the property C, which K, the respondent's mother, sold to the parties in 2005 subject to the arrangements we have described, which undoubtedly have added complications to the matter which had to be decided by the Registrar and by us, the general structure of the marriage is not at all uncommon. In effect, the marriage was a reasonably typical form of marital partnership, each spouse making their different contributions to the family welfare. We were referred to the House of Lords decision in Miller v Miller; McFarlane v McFarlane  3 All ER 1;  UK HL 24. At paragraphs 4 through to 39, Lord Nichols sets out very helpfully some principles which are applied by the English courts to settlement of ancillary matters on divorce. Although one of those cases was what is sometimes described as a "big money" case, the principles upon which the court operates are nonetheless helpfully set out. The statutory legislation in England and Wales is not quite the same as our own, and we return to this point later in this judgment on the matter of the conduct of the parties. Nonetheless and subject to that issue, we approach this case on the same principles which Lord Nichols sets out, which we adopt.
11. As Lord Hope said in the same case, Lord Nichols' judgment is complemented by the judgment of Baroness Hale of Richmond. In most respects, the two judgments do not contradict each other. As Lord Manse put it in his judgment, the main difference between the two judgments is that while Lord Nichols was not inclined to accept the proposition that entitlement to an equal division was in effect earned over a period of time (which would give the money earner a head start over the home maker and child carer on the breakdown of a short marriage), Lady Hale rather suggested at paragraphs 148 to 152 of her judgment that there might be a difference in the big money cases where the assets have been generated by one party alone in a relatively short marriage. At all events, that difference between Lord Nichols and Lady Hale is not relevant for the purposes of this judgment and we do not have to decide it.
12. What one can say is that when the parties arrived in Jersey in 2005 following the sale of E, and prior to the acquisition of C from K, the matrimonial property consisted of £148,000 plus some accrued pension rights, which were not as extensive as those which were subsequently acquired by the husband. We think it is not inappropriate to remember that that was the scope of the main items of matrimonial property at that time.
13. In this case the respondent obtained a decree nisi on the grounds of her husband's unreasonable behaviour. In the skeleton argument filed on her behalf before the Registrar, the respondent filed a chronology identifying areas where the facts were in dispute principally over the conduct of the appellant husband. It was said that the issues in the chronology to which the court should have regard were:-
(i) Matters of conduct on the part of the appellant and the effect on the respondent's health both mental and physical.
(ii) Financial misconduct on the part of the appellant.
(iii) Procrastination and failure to comply with court orders in relation to disclosure.
14. The skeleton argument went on to contend that the court was required "in making its decision, to consider all the circumstances of the case including the conduct of the parties to the marriage insofar as it would be inequitable to disregard it........".
15. The general grounds of appeal do not mention questions of conduct, although the contentions for the cross appeal as filed do refer to the litigation misconduct of the appellant. There is mention in those contentions of the respondent's allegations against the appellant of manipulative and controlling abusive behaviour, but the context of that argument is the plea that there should be a clean break.
16. Before us, the respondent argued rather differently. After making an application to submit fresh evidence, which we will come to shortly, her opening statement was that the marriage ended as a consequence of her husband's adultery. That was very important to her. Later in her submissions - and we would like to pay tribute to the restraint with which she put her points to the court despite the obvious emotional anxiety which the whole case has caused her - she asserted that the breakdown of the marriage was not her fault and her husband's conduct had to be taken into account. The breakdown was forced upon her. She tried to save the marriage but it was his adultery and determination to go his own way which finished it.
17. Because this issue of conduct has been raised squarely before us, it is necessary to deal with it. We emphasise that this part of our judgment does not concern litigation misconduct which is a separate subject. It is noteworthy that in the decision given by the Registrar, notwithstanding the skeleton argument of the respondent before her, no finding of fact on questions of general conduct was made, and it is clear that apart from litigation misconduct, the Registrar has not taken conduct into account. The question is whether the Registrar was right to adopt that approach.
18. Article 28(1) of the Law is in these terms:-
"Where a decree of divorce or nullity of marriage or judicial separation has been made, the court may, having regard to all the circumstances to the case including the conduct of the parties to the marriage insofar as it may be inequitable to disregard it and to their actual and potential financial circumstances and notwithstanding the provisions of Article 26 order:-
(a) that one party to the marriage transfer to the other party to the marriage, or to any child or children of the family, or to such persons as may be specified in the order for the benefit of such child or children, any property whether real or personal to which the first mentioned party is entitled;
(b) that a settlement of any property whether real or personal to which one party to the marriage is entitled be made to the satisfaction of the court for the benefit of the other party to the marriage or of any child or children of the family".
19. A similar reference, in terms of conduct, appears in Article 27(1) which confers on the court a power to vary settlements, and Article 29(1) which confers on the court a power to order one party to the marriage to pay to the other annual or other periodic sums for maintenance and support, or such lump sum as may be appropriate.
20. The legislative history of these provisions shows that a number of amendments to the 1949 legislation have been adopted since it was first enacted. In its original form ("the 1949 Law"), Article 28 permitted the court, on a decree of divorce, nullity of marriage or judicial separation, to direct that the interests of each of the parties to the marriage in such real or personal property as were vested in either of them or the two of them together could be varied as the court directed. Article 29 dealt with contributions for support and was in these terms:-
"(1) Where a decree of divorce, judicial separation, restitution of conjugal rights or nullity of marriage has been made, the court may, if it thinks fit having regard to the circumstances of the case including the financial position and conduct of the parties, order that the husband shall pay or make provision for the payment to the wife during any term not exceeding the life of the wife, or such annual or other periodic sum of money for or towards the support of the wife as the court deems reasonable, and that the husband shall secure the payments to be made under such order in a manner directed by the court".
21. The structure of the 1949 Law when first adopted attached importance to the concept of fault for the breakdown of a marriage. We note in passing that before 1949 there was no law permitting the court to grant a decree of divorce. The recital to that legislation makes it plain that the 1949 Law empowered the Royal Court to grant decrees of dissolution and nullity of marriage, of judicial separation and of restitution of conjugal rights. The grounds for divorce as laid out in Article 7 of the 1949 Law were that the respondent had committed adultery, deserted the petitioner without cause for at least 3 years, treated the petitioner with cruelty, was incurably of unsound mind, was by reason of the commutation of a death sentence undergoing imprisonment for life or in confinement as a criminal lunatic, or serving a sentence of not less than 15 years, or had since the celebration of the marriage been guilty of bestiality or sodomy, and in the case of the wife also on the ground that the husband had been guilty of rape.
22. It was not until 1978 with the Matrimonial Causes (Amendment No. 5)(Jersey) Law 1978 ("the 1978 Law") that there was introduced as a ground for divorce the separation of the parties for 2 years, where the respondent consented, or for 5 years where he or she did not. This was the first occasion on which a decree of divorce could be obtained without proof of fault on the part of the respondent.
23. The substance of what is now Articles 28 to 30 of the Law was introduced by the Matrimonial Causes (Amendment No. 3)(Jersey) Law 1973. The introductory language of these articles in paragraph (1) is as follows:-
"Article 28 - Power of court to order transfer or settlement of the property.
(1) Where a decree of divorce of nullity of marriage or judicial separation has been made, the court may, having regard to the conduct of the parties to the marriage and to their actual and potential financial circumstances....... order."
24. So there we had the position in 1973 that questions of conduct were directed by the legislature to be relevant to the exercise by the court of its power to make property or financial orders ancillary to a divorce.
25. This introductory language was amended when the 1978 Law was adopted so that the court was then directed as follows:-
"Where a decree of divorce or nullity of marriage or judicial separation has been made, the court may, having regard to all the circumstances of the case including the conduct of the parties to the marriage and to their actual and potential financial circumstances..... order......".
26. The amendment in the 1978 Law to Articles 28 and 29 of the legislation can be seen as a signal to the court that conduct was not as important as hitherto. The court was to have regard to all the circumstances of the case including conduct and the actual or potential financial circumstances of the parties.
27. In the review of legislative history, it is right also to record that the grounds of divorce remained the same from 1979 until 1996, when amendments were made to the length of time which was required to pass before a divorce could be granted on the grounds of separation, and in relation to Article 7 (1) until 2003 when the legislature introduced the ground of unreasonable behaviour and removed some of the rather more colourful language which had been adopted in 1949.
28. Before us, the respondent referred to the authority of O'Brien v O'Brien (2)  JLR 145, where the court was considering an application for a variation order in respect of financial provision, and in particular an application for an equal division of the proceeds of sale of the former matrimonial home. Tomes DB said this at page 148:-
"In deciding the present application we have regard to a number of factors:
1. Conduct: In Faiers v Faiers (nee Winter) the court said this:-
"The ratio descendendi of Urquhart v Wallace [1974 JJ 119] is that as, in Jersey, divorce is still based substantially on the concept of the matrimonial offence, a stronger emphasis is placed by the court on the conduct of the guilty party when apportioning the assets. Conduct must be taken into account, whether or not it is obvious and gross......".
In the instant case it was the conduct of the Respondent that broke up the marriage. He committed adultery. We cannot apportion blame for earlier behaviour by either party on the basis of the evidence before us. It may well be that the marriage relationship was already under a strain, largely due to the financial situation. We think that there was a certain lack of responsibility in money matters on the part of both spouses. As to subsequent conduct, we are in no doubt that the "stop-start" attitude of the Respondent in relation to the mortgage payments and the uncertainty of a continued home for herself and the children, did cause distress to the petitioner. Therefore, on the issue of conduct alone, the £5,000 already paid to the petitioner is insufficient to mark the conduct of the Respondent in terminating the marriage and we reject the submission of Mr Boxall [for the Respondent] that the monies presently available should be divided equally".
29. The position as set out by the Royal Court in 1989 was consistent with the legislation at that time. It appears to be the last occasion on which the Royal Court has been asked to consider the issue of conduct in relation to the division of assets on divorce. It is for that reason that we have dealt with the matter in more detail than otherwise would be the case in this judgment.
30. At the heart of the argument is what construction should be placed on the phrase in the present legislation "including the conduct of the parties to the marriage insofar as it may be inequitable to disregard it". For the appellant, Advocate Godden contended that the O'Brien case on which the respondent relied, (especially that part where the court indicated that "the two most important factors in determining the apportionment of assets are the conduct of the parties and the provision of a home for each of them. So far as conduct is concerned, all conduct should be considered by the court, not just conduct which is gross and obvious") was no longer good law. He submitted that the case was decided in 1989, and family law had moved on. Marriages break up for many reasons and it is not appropriate for all conduct to be taken into account. He pointed in particular to the position in the United Kingdom, emphasising that there it was only conduct which was gross and obvious which should be taken into account - or he said, conduct which had the "gasp" rather than the "gulp" factor. We took this to mean that if the Court "gulped", it would be of the view that the conduct was pretty bad but it would nonetheless not be taken into account - but if it "gasped", there was an element of astonishment that anyone could behave so disgracefully, and it might then be inequitable to disregard it.
31. The case of Wachtel v Wachtel  1 All ER 113, at first instance, and  1 All ER 829 on appeal, was a seminal decision in the approach taken by the English courts. At first instance, Ormerod J held that under the English legislation, which was not then framed in quite the same way as our own, conduct still fell to be taken into account. At page 119, a, he said:-
".....conduct is to be taken into account as a factor which may modify the result which is arrived at after consideration of all the other factors specified in the section. The court can only approach this issue in a broad way. It should bear in mind the new basis of divorce which recognises that, generally speaking, the causes of breakdown are complex and rarely to be found wholly or mainly on one side, and that the forensic process is not well adapted to fine assessments or evaluations of behaviour, and that it is not only conduct in relation to the breakdown which may have to be considered. Conduct subsequent to the separation by either spouse may affect the discretion of the court in many ways, eg the appearance of signs of financial recklessness in the husband or of some form of socially unacceptable behaviour by the wife which would suggest to a reasonable person that in justice some modification to the order ought to be made. In my experience, however, conduct in these cases usually proves to be a marginal issue which exerts little effect on the ultimate result unless it is both obvious and gross".
32. On appeal, Lord Denning, delivering the judgment of the court dealt with the matter in this way at page 835 D:-
"When Parliament in 1857 introduced divorce by the courts of law, it based it on the doctrine of the matrimonial offence. This affected all that followed. If a person was the guilty party in a divorce suit, it went hard with him or her. It affected so many things. The custody of the children depended on it. So did the award of maintenance. To say nothing of the standing in society. So serious were the consequences that divorce suits were contested at great length and at much cost.
All that is altered. Parliament has decreed: "If the marriage is broken down irretrievably, let there be a divorce". It carries no stigma, but only sympathy. It is a misfortune which befalls both. No longer is one guilty and the other innocent. No longer are there long contested divorce suits. Nearly every case goes uncontested. The parties come to an agreement, if they can, on the things that matter so much to them. They divide up the furniture. They arrange the custody of the children, the financial provision for the wife, and the future of the matrimonial home. If they cannot agree, the matters are referred to a judge in chambers.
When the judge comes to decide these questions what place has conduct in it? Parliament still says that the court has to have "regard to their conduct": see s5 (1) of the 1970 Act. Does this mean that the judge in chambers is to hear their mutual recriminations and go into their petty squabbles for days on end, as he used to do in the old days? Does it mean that, after a marriage has been dissolved, there is to be a post mortem to find out what killed it? We do not think so. In most cases both parties are to blame - or, as we would prefer to say - both parties have contributed to the breakdown.
It has been suggested that there should be a "discount" or "reduction" in what the wife is to receive because of her supposed misconduct, guilt or blame (whatever word is used). We cannot accept this argument. In the vast majority of cases it is repugnant the principles underlying the new legislation, and in particular the 1969 Act. There will be many cases in which a wife (although once considered guilty or blameworthy) will have cared for the home and looked after the family for very many years. Is she to be deprived of the benefit otherwise to be accorded to her by s5 (1) (f) because she may share a responsibility for the breakdown with her husband? There will no doubt be a residue of cases where the conduct of one of the parties is in the judge's words "both obvious and gross", so much so that to order one party to support another whose conduct falls into this category is repugnant to anyone's sense of justice. In such a case the court remains free to decline to afford financial support or to reduce the support which it would otherwise have ordered. But, short of cases falling into this category, the court should not reduce its order for financial provision merely because of what was formally regarded as guilt or blame. To do so would be to impose a fine for supposed misbehaviour in the course of an unhappy married life".
33. In the expressive first paragraph from that extract, in which the verb is sacrificed to emphasise the force of what was said, Lord Denning referred to the fact that the consequence of the previous position was that divorce suits were contested at great length and at much cost. There was a great risk of the same being true in Jersey in the late 1970s and early 1980s, and it was only the realism of the advocates at that time which prevented, on the whole, that result. Divorce petitions were routinely placed on the defended list, however, and negotiations were then conducted on ancillary matters, frequently leading to an agreement that the divorce would no longer be contested, ancillaries having been settled; but it was not always thus. In our own experience we can recall a case where, no settlement of ancillaries having been possible, the court heard lengthy and excruciatingly distressing evidence from a petitioner and respondent in their mid-seventies before dismissing both petition and cross-petition and leaving intact a very long marriage which both parties wanted to come to an end.
34. Raking over the embers of a marriage that has died is in most cases an inhumane and undesirable exercise. It requires the court to pry into matters which are painful and sensitive, and frequently to recognise that episodes which bear unfavourably on one party to the marriage often are merely symptoms of a cause which bears unfavourably on the other.
35. The cost to the parties of such an exercise - which is measurable in emotional as well as financial terms - is in most cases likely to be severe. The results would be not just financial exposure in terms of costs, and possibly financial hardship, but the increased probability not just of a broken marriage but of a judicially ruptured marriage which would be liable to leave the confidence of both parties seriously damaged, and inhibit their ability to emerge from the winter of their lost marriage into the spring of their life yet to be lived. Such arguments might in many cases impact upon the ability of the divorcing spouses to maintain any form of reasonable relationship with each other, which might be necessary for the benefit of their children in the years following divorce.
36. In our judgement these are powerful policy reasons why the court should not give a wide interpretation to the expression in our statute "including the conduct of the parties to the marriage insofar as it may be inequitable to disregard it". The question is whether we are required as a construction of the statute or by authority to decide otherwise.
37. In our judgement we can take comfort from the progression of amendments to the 1949 Law. It is true that the grounds for divorce in Article 7 (1) of the Law continue to provide for a fault based petition; but under Article 7 (2) the Law also provides grounds for a non-fault based dissolution. We recognise, however, that that takes us only so far. What is of more help is that the amendments to what are now Articles 28 and 29 of the Law show a progressive departure from the days when conduct was a critical, or even an important part of the assessment for orders ancillary upon divorce. We note also that under Article 25 of the Law, which empowers the court to make such provision as appears just with respect to the maintenance of any children of the marriage, there is perhaps unsurprisingly no reference to questions of conduct on the part of the parents - and yet, save in the big money cases, the needs of the children are likely to be one of the most important factors for the court in determining a fair apportionment of the matrimonial assets as between the parents.
38. The decisions of the Royal Court from 1974 through to the O'Brien case in 1989 show a relatively consistent approach that conduct is to be taken into account, although the cases are not so consistent as to how. Urquhart v Wallace  JJ 119, all conduct was to be taken into account and not just conduct which was gross and obvious. In Fitzgerald v Northcroft  JJ 35, misconduct was to be considered only if gross and obvious, although it might be given little weight. In Elwell v Knight  JJ 383, all conduct was to be taken into account, not just conduct which was gross and obvious. In James v Patterson  JJ 125, the matrimonial offence was still a basis in Jersey law for obtaining a divorce, and the guilt and innocence of parties was an especially important factor in apportioning assets. In L v J  JLR 236, the Court of Appeal indicated that the court might reduce, and need not eliminate a lump sum payable in the light of the parties' conduct. In that case, at first instance the Royal Court had decided that the misconduct on both sides was broadly equal. In our view, a close reading of the Court of Appeal judgment suggests that that court was enthusiastic in embracing that conclusion - and because it did, the finding was that there was no basis upon which the exercise of discretion by the Royal Court could be faulted. The decision is not therefore binding on us today on the point as to whether the conduct of the parties must be taken into account. In any event, the phrase in each of Articles 27, 28 and 29 of the law "insofar as it may be inequitable to disregard it" was introduced subsequently by the Matrimonial Causes Amendment No. 8 (Jersey) Law 1995 ("the 1995 Amendment").
39. In our judgement the 1995 Amendment is a signal to the court from the legislature that the court's approach to questions of conduct had to be revisited. For all the reasons which are set out above, we will depart from the decisions of this court on this subject prior to 1995. In our judgement, it is not appropriate or desirable to attempt any estimate of when it will be inequitable to disregard conduct but parties and practitioners should operate on the premise that the expression "gross and obvious" or "gasp rather than gulp" are good indicators. In the overwhelming majority of cases, conduct will not be relevant to the exercise of any judgement on an application involving Articles 27 to 29 of the Law, although, given the grounds for the divorce, it may still be relevant to questions of costs in relation to the divorce itself.
40. For these reasons, we hold that the Registrar was right to disregard allegations of conduct in relation to the ancillary matters with which she had to deal.
41. In our view there is a distinction to be drawn between financial misconduct during the course of the marriage where it is alleged that one spouse has been profligate or has gambled with the family assets and financial misconduct after the parties have separated, where one spouse deliberately squanders assets in the belief it will not adversely affect his or her ultimate entitlement or seeks to pressurise the other by inhibiting or denying access to the wherewithal to live or obtain necessary advice. Examples in the latter category - which is not closed as there will without doubt be others - are akin to litigation misconduct and in the court's discretion may well be taken into account for it may be thought inequitable not to do so. However financial misconduct during the marriage prior to separation seems to us to be just another form of bad conduct which would not, unless gross and obvious, be taken into account. The Court should not be any more astute to enquire into a husband's gambling than it is to investigate a wife's profligacy with excessive spending on designer dresses or children's toys. It seems to us that gambling only becomes relevant, in terms of conduct which is not gross or obvious, if it leads to consideration of a secured provision.
42. In this case, the respondent contended that the appellant is a spender and not a saver. She asserted that there must be undisclosed bank accounts and that the appellant "spends and spends".
43. We do not think that this was a finding of fact which was made by the Registrar. To the extent that there was an allegation put by Advocate Whittaker on behalf of the respondent before the Registrar that there had been financial misconduct, we do not take it into account on this appeal.
44. Both parties accepted before the Registrar that C had been acquired from K at an undervalue. The respondent really claimed before us that she had in effect received her inheritance in advance and it was therefore unfair to penalise her by requiring her to pay a large capital sum to the appellant, albeit on a deferred basis, which ultimately reflected the value of her inheritance when the appellant's parents were well off and remained alive with the consequence that the appellant had a reasonable expectation of his own inheritance in due course.
45. As to the appellant's prospects of inheritance, we disregard them. There is no finding of fact by the Registrar in this connection and we do not feel able to reach any conclusion ourselves on the evidence, such as it was, before the Registrar.
46. It is however necessary to consider the contention that the respondent has received an advance on her inheritance from K. The primary difficulty is that although the parties agreed that C had been acquired at an undervalue, there is no evidence before us as to what its true value was at the date of acquisition. We know what the parties paid for it, and we know that there was a reservation of a life interest in part of it, which undoubtedly reduced the value of the freehold which the appellant and respondent acquired together. That that is so is indicated by the difference in valuation, again an agreed matter, of £300,000 as at the hearing date in November 2013, when the property was valued at £750,000 without K's life enjoyment, and £450,000 with it.
47. We think we can have regard to the fact that the consideration of £100,000 which was paid by the parties to K as vendor was subsequently released by K in its entirety to her son, the respondent's brother. Once again, it is not conclusive evidence that the value of the inheritance was £100,000. Maybe K had in mind that a similar sum reflected the value of an inheritance in advance for her daughter; maybe she thought that the property was sold at an undervalue of £200,000, although that might seem to be rather high. Maybe one should treat the notional £100,000 payment to the son as evidence of a payment of equivalent value by the respondent into the acquisition price of C. At the end of the day, we find this to be too much of an imponderable. If this argument were to have been advanced with any confidence before the Registrar, there should have been some evidence of value as at the acquisition date put before her. This should not have been too difficult an exercise. There must be historical records of dealings with the C property from which a valuation could have been made.
48. What we can be sure about is that the reservation of the life interest undoubtedly had a significant effect upon value. It seems to us that if there is inheritance element available to the respondent by these arrangements, it is represented by the difference between the value of the property when conveyed to the parties and its real value, in each case subject to the life interest, and there is no evidence upon which we can reach a firm conclusion, as to what it is worth. We will take into account the possibility that there may have been some inheritance element when we review the overall fairness of the Registrar's award.
49. We think we need to reflect the following in our assessment of the Registrar's order. The arrangements made in 2005 for the acquisition of C, given effect a couple of years later when the conveyance was made, were such that the appellant and the respondent took the risk of K's life enjoyment. They both have to live with that because at this point we now have a third party interest which it seems to us cannot be disregarded in the approach we need to take to a fair division of property. The life enjoyment (and the contract which was made to create obligations linked to it) has an impact in two ways. First of all it means that the value of what the appellant and the respondent own as at the date of the hearing is reduced to £450,000, being the value of the property subject to the life enjoyment, coupled with a hope or spes of future capital. It is only a hope of future capital because the parties must have recognised that their joint ownership might come to an end by death or other division prior to the life enjoyment coming to an end, and that of itself would affect the value of the hope or spes which they had. The second impact which the life enjoyment has is that it means that neither spouse has easy access to the freehold estate for the purposes of a sale of their limited interest or for the purposes of raising a mortgage. If one takes the view, as the Registrar did, that this is a needs case, this second impact is clearly relevant for the purposes of any timing for payment of an award.
50. At paragraph 42 of her judgment, the Registrar records that C is in the joint names of both parties and she goes on to say this:-
"However there are agreed values, with and without the lifetime interest of K. I was also referred to the case of Stanaway-Ivivey v Overland  JJ 233 and asked by the wife's advocate to use the lower figure of the valuations. In this case however, both valuations are agreed and at some stage K's life interest will end so that house will be worth £750,000".
51. Both in the papers which the respondent put before us on appeal and initially in her oral submissions, the respondent indicated that she wished to adduce fresh evidence. A letter dated 9th April, 2014, from Messrs Gaudin & Co valued the property at £675,000, that revised valuation being based upon relatively extensive structural repairs and maintenance that are now required to bring the property up to an appropriate standard. Messrs Gaudin & Co also indicate that they are not entirely convinced by the valuation of C subject to the life enjoyment at £450,000. They pointed out that they calculated this figure having regard to life expectancy charts and tables used by insurance companies, but the only fair way of deciding value in relation to the local market would be to get three or four valuations from reputable estate agents which would determine an average for the court.
52. The respondent also sought to put before us an email from Mr Roger Trower of Messrs Broadlands, another firm of estate agents and valuers. This email was dated 19th June, 2013, and assessed the value of the property at something in the region of £650,000 with vacant possession. Mr Trower indicated that attempting to sell the property with a life tenant in situ would make it more difficult to sell and require a specialist valuation which would only be obtainable on payment of an appropriate fee, which the respondent could not then afford.
53. The respondent also wanted to put before us an email dated 24th April, 2014, from Mr Robin Henwood of Messrs Troys, a further firm of estate agents and valuers in the island. Mr Henwood indicates in his email, that selling the property in the current market subject to the life enjoyment and all that is expected of future purchasers would achieve a sale price in the region of £400,000 and without the life time enjoyment something in the region of £650,000.
54. The test for the admissibility of fresh evidence on appeal in connection with appeals from the Royal Court to the Court of Appeal has been long established - see, for example, Mayo Associates SA v Cantrade Private Bank Switzerland (CI) Limited  JLR 173. The applicant has to show that the evidence was not obtainable at trial with reasonable diligence, is probably important albeit not necessarily decisive and is credible. We have to consider whether the same approach ought to be taken to appeals from the Family Registrar to the Royal Court. In that connection, the comments of this court in Downes v Marshall to the effect that sufficient weight should be attributed to the Registrar's findings of fact to discourage litigants from seeking a fresh bite at the cherry are apposite. The underlying rationale for the change of direction in family cases, as set down by Downes v Marshall is that it is essential that all the facts emerge at the hearing before the Registrar. If that were not to be the case, then there would inevitably be much wider ranging appeals than is contemplated by the test which the Royal Court then adopted. There would be nothing to prevent parties from having a trial run before the Registrar with some of their evidence, and, depending on the result, then seek a further hearing on appeal when the rest of the evidence would emerge. In our view, it is right to adopt the same test for the admissibility of fresh evidence on appeal from the Family Registrar to that which is applicable in relation to appeals from the Royal Court to the Court of Appeal.
55. In this case, it appears from the decision of the Registrar that the parties agreed the valuations upon which the Registrar was to proceed. Whether we were to adopt the test which we have adopted, or a wider test, the existence of that consent would be a material factor. We think it would result in the exercise of discretion, absence in very unusual circumstances, against permitting the issue to be reopened on appeal. Even leaving aside the issue of consent, however, in our view it is clear that the test for admitting fresh evidence on appeal is not satisfied here. It would have been open to the respondent to have adduced other evidence before the Family Registrar, and sought a decision on an issue of fact. The first part of the test is therefore not satisfied.
56. Accordingly, we ruled that the letter from Messrs Gaudin & Co and the emails from Messrs Troys and Messrs Broadlands would not be admitted.
57. We agreed that a letter from Advocate Habin could go in. It seems to us that the letter itself is of little consequence because it really seeks to summarise the contents of the contract which is already before the court and was before the Registrar and indeed it is that on which we rely.
58. Accordingly we have proceeded on the agreed factual basis before the Registrar that C has a value of £750,000 on the open market with vacant possession and without any life interest, and £450,000 subject to the life interest.
59. It does not seem to us that it is possible to adjudicate upon the fairness of the Registrar's decision until we have considered the other points raised in relation to capital and income on this appeal, some of which are discrete points.
60. In December 2011 the appellant encashed a PEP. The Family Registrar records that the appellant claimed to have done so at the respondent's request, but that she maintained he had done so without her knowledge. The amount received by the appellant was £10,258. The Registrar accepted this was done without the respondent's knowledge, and that the funds were used for the appellant's benefit. It was a joint asset, and the Registrar resolved that she would add back half of the encashment amount for the benefit of the respondent. We see no reason to interfere with this decision. In her criticism of the Registrar's decision, the respondent contended that despite those comments, the Registrar did not in fact add half that encashment back for her benefit. That seems to us to be a fair criticism and we return to the point when we summarise our disposal of these appeals.
61. The Schedule of Assets and Liabilities as at 3rd September, 2013, showed illiquid assets in the following way. The respondent has a pension from Cumbria County Council with a value of £15,062.15. The appellant has a Scottish Widows policy with a value of £16,056.16, and a PECRS States of Jersey pension with a capital value of £140,341.71. These figures were all agreed.
62. The Registrar noted at paragraph 45 of her judgment that the PECRS pension had the value just recited. She noted that the appellant agreed that the aespondent should receive some compensation for this pension. There was a question as to whether there should be a discount. In Southern v Southern  JLR 94, it was held that the cash equivalent transfer value (CETV) of the member's benefits in the pension scheme, calculated at the date of divorce, is the value to be taken into account as an asset to which the court should have regard. In Maskell v Maskell  EWCA Civ 858, the court found that only 25% of the pension fund should be taken as capital. In the Jersey case of Downes v Marshall  JLR 265, Sir Philip Bailhache, Commissioner viewed the PECRS final salary scheme as "gold plated" and an immensely valuable asset which should not be discounted. The Registrar considered that the appellant's pension is due for payment in less than five years, and she took the full value into account, and not a discounted figure. It is due to go up by the cost of living. We were told that the pension is payable to the appellant when he attains the age of 55, and is worth approximately £6,000 per annum, although it is subject to RPI increases. There was no dispute before us that it was open to the appellant to commute 25% of the CETV, although that would have the effect of reducing the annual income thereafter. Such a commutation would enable some £32,500 to be released to the appellant when he reaches the age of 55.
63. Advocate Godden contended before us that the Family Registrar's approach was unfair as it did not allocate any capital for the needs of the husband. The pension was illiquid, but the whole of its capital value had been allocated to the husband even though it only provided an income for him. It followed that as the capital was not available, the appellant should in his view have a higher proportion of the locked up capital in the former matrimonial home, when that became available. Like the judges at first instance in Maskell v Maskell (supra), the Registrar had failed to compare like with like in allocating the whole of the CETV in the PECRS fund to the husband as capital.
64. We think that it is important to recognise that in Maskell v Maskell, the husband was aged 41 at the time of the divorce so that, in the words of Thorpe LJ, "the prospect of him receiving either capital or income from that last fund was obviously a deferred if not a distant prospect". Indeed, it would seem that the husband in that case would not be receiving anything, whether capital or income from the pension fund for approximately twenty-four years. In those circumstances, to allocate to the wife in that case the equity in the matrimonial home seemed to be particularly unfair. She would have immediate use of capital, and he would not.
65. That is some distance away from what we have in the present case, where the appellant is due to receive benefits from the PECRS pension in 2018. Whether he takes cash from it or not, the income from that pension will provide a solid basis for assisting him, with any earnings he may then have, to afford mortgage payments for a new property at that time. It seems to us that the approach taken by Commissioner Clyde-Smith in A v B In the Matter of S  JRC 119 is absolutely right at paragraph 64 where he said:-
"Whether it is fair to include pensions at their full value or at a discounted value or not at all will depend upon the facts of each case, the circumstances of which will vary enormously".
66. It appears to us that the forthcoming real value which will be available to the appellant when he is 55 is such that the PECRS pension should have its full CETV without discount.
67. It is said by both the appellant and the respondent that the Registrar failed to explain and/or articulate how the arguments which were made were considered, and how the Section 25 criteria had been applied in order to reach the outcome ultimately ordered.
68. It seems to us that this categorisation of the Registrar's decision is not correct. She had earlier reviewed the section 25 criteria in detail. The decision appears at paragraph 69 of her judgment, in which she says that both parties agreed that there should be a clean break. The Registrar had already made it plain that she saw this case as a needs case. She had to look at the financial resources of the parties, and she took into account that K's life time interest would come to an end in due course and, when it did, the respondent would have a large property in excess of her needs which would give her a substantial capital sum in terms of value. Indeed its substantial value was such that the Registrar considered the respondent's proposals were not fair to the appellant, bearing in mind that this was a twenty year marriage. It is clear from the Registrar's judgment that she was looking for a mechanism to obtain the clean break that both parties agreed should take place, without unfairness to either party. She had regard to the amount of money which the respondent might have open to her - a further loan from K of £100,000, a mortgage/private equity loan facility of a further £60,000, and a loan of £30,000. She had regard to the fact that the respondent would have to provide a home for the children of the marriage, and would have to pay the sums contractually due as a result of the contract for creating K's life time interest. She had regard to the fact that the respondent would have to pay the mortgage to Skipton International. Thus she arrived at a balance of capital of some £483,000 for the respondent and £303,000 for the appellant.
69. In the circumstances we do not think that the Registrar failed to articulate how the Section 25 criteria were applied - she took the agreed position that there should be a clean break, noted that this was a needs case, noted that the children needed a home until they ceased full time education, and arrived at a mechanism which accommodated those factors, as far as was fairly possible, having regard to the life interest and the constraints on the respondent in raising any further mortgage.
70. As will be clear from the rest of this judgment, we think the conclusion was fair, even if we do not necessarily share the Registrar's route for getting there.
71. In the early stages of these proceedings, K intervened to assert that she was owed the sum of £70,675 in relation to monies which she had paid on the rebuilding and refurbishment of C and in payment of services and rates which were all due to be paid by the appellant and respondent. If this money was due, this would reduce the joint assets by the amount of the debt. Subsequently, K withdrew from the proceedings in July 2013, asserting that it was not cost effective for her to remain as an intervener. The Registrar was informed that she reserved her rights to pursue her civil claim in the courts, albeit she had not yet started proceedings against her daughter and son-in-law.
72. The respondent agrees that the money is due by the two of them. The appellant asserts that it is not.
73. The Registrar noted that it was extremely unfortunate that K had withdrawn from the proceedings. She reviewed the claims which K had made, and she did not accept, on the face of it, that she was owed the total sum which she had claimed. Indeed the Registrar concluded that she was not in a position to say how much was owed by the parties to K. As a result she did not take the debt into account at all, and left it for the civil courts to deal with if proceedings were issued by K in due course.
74. The appellant 's position in relation to this asserted debt is that not only was there dispute about whether the amount claimed was accurate, in the sense that there is dispute as to whether it is an accurate assessment of monies actually spent in relation to the obligations of the appellant and respondent under the contract, but furthermore that the monies were spent by K because she realised her daughter and son-in-law were short of cash, and that it was not a loan to them but in effect a gift.
75. This was a very difficult position for the Registrar to face. In particular, the claim for some £70,000 by K required an assessment of whether the monies spent were either a gift or a loan where she had no evidence other than that of the appellant and respondent who disagree. To conclude that it was a debt and must come off the gross matrimonial assets risked unfairness to the appellant if in fact it was a gift, because if it was, the whole value of that gift would have accrued to the respondent, who has received the property.
76. By contrast, to say that the monies spent by K were a gift and are not deductible from the capital assets carries with it the implication that there is a larger sum of capital which should be divided between the appellant and the respondent than would be the case if it were a loan, and accordingly, if in fact K were to bring proceedings at a later stage and be successful, the determination in these proceedings that the money spent was a gift and not a loan risked unfairness to the respondent.
77. On the other hand, to leave this claim out of account altogether leaves neither K nor the parties adversely affected. K has a claim against them both if she wants to pursue it, and it will either be successful or unsuccessful. Whatever the results of that claim, to leave the question out of account in these proceedings avoids potential unfairness to both appellant and respondent, and it seems to us that, given the paucity of evidence on the matter, the Registrar took the right approach.
78. The Registrar made the following findings at paragraph 67 of her judgment:-
"The lack of timely disclosure led to increased legal fees and the husband conceded there was some delay. Although he was suffering from depression he was not working so had the opportunity to provide documentation. Furthermore his response about his failure to provide tax returns and his annoyance at being asked what he felt were intrusive questions was such that I consider he deliberately delayed filing information. He says it was not material disclosure but unfortunately the fact that he did not comply with the disclosure request, for example, by not providing some bank statements such as for account 0608, meant that the wife's lawyers were not clear if it was or was not material disclosure, and he failed to give information as to his address from time to time. The husband filed some documents on the day of the hearing and Advocate Whittaker could not take initially take [sic] instructions as the wife was giving evidence. The husband did not reply regarding the updated joint valuation from Gaudins of 24th July until very shortly before the hearing. His lack of response on a timely basis meant that skeleton arguments were filed just before the hearing. I have been referred to the case for R v G  JLR No 20 where it was held that it was appropriate to summarily fix the quantum of costs for the husband's misconduct in litigation. In the case of S v F  JLR No 19 it was held that a failure to provide requested financial information is generally dealt with by costs orders at the end of the trial or by the court drawing adverse inference against the non-disclosing party."
79. The Registrar continued on this subject at paragraph 70:-
"I accept the litigation conduct of the husband has been such that costs have been increased and I consider that a fair sum should be £12,000 paid by him towards the wife's costs."
80. In her open position before the Registrar, the respondent contended that in addition to the costs of the divorce, the appellant should pay a contribution towards the respondent's costs in connection with the proceedings in the sum of £25,000, which was asserted to be a fair estimate of the additional costs incurred by her up to 30th September, 2013, as a result of the litigation conduct of the appellant including issues of non-disclosure and a failure to comply with court orders and a failure to negotiate. Her skeleton argument referred to the cases of R v G and S v F, to which the Registrar made reference in her decision, and again contended that there ought to be a contribution towards costs from the appellant in the sum claimed.
81. Before us, the respondent argued that the Registrar was led into error in relation to costs generally, and it was for that reason that she did not award the full £25,000 which was claimed for litigation misconduct. The respondent also asserted that she had been told by her advocate that the amount which ought to be added for misconduct was probably £30,000. The reference to the Registrar's mistake in relation to costs generally is this. She recorded at paragraph 53 that the appellant owed his parents £17,034 in respect of payments for legal fees, which she treated as loans and not gifts. She noted that the respondent had met some of her legal fees from her assets, which included an inheritance from her uncle, but that she would need £30,000 to pay outstanding legal fees (paragraph 55). It is that figure of £30,000 which the respondent contends was clearly wrong.
82. The schedule of assets and liabilities as at 3rd September, 2013, showed that the appellant had paid legal fees of £17,034 had been billed but not yet paid fees of £21,437 and that there was work in progress of some £9,000. The respondent had been billed and paid fees of £17,461 had been billed but not yet paid £17,447 and there was work in progress of £20,064. As far as work in progress is concerned, it is to be noted that what then followed after the operative date in the Schedule of 3rd September was preparation for a hearing, and an actual hearing before the Registrar which lasted 5 days. We were told by the respondent that the outstanding legal fees were not £30,000 as recorded by the Registrar but £70,000. We were told by Advocate Godden that his client owed his parents the sum of £64,475 in respect of the costs of the hearing before the Registrar.
83. We feel obliged to say that costs of this nature are out of all proportion to the reality of what was in dispute between the parties. If the appellant and respondent each incurred these costs with their eyes wide open, on an informed basis knowing the structure of the charges, the matters which were to be argued about and the risks involved, then we would have little sympathy for them. Without going behind legal advice privilege, it is of course impossible to be sure, but we would like to take the opportunity of emphasising that, in family cases at least, advocates have a clear and unequivocal duty to explain to their clients the nature of the professional charges which are being incurred, the reasons why that course of action is being recommended, the likely returns on the investment of legal fees and the risks which arise. Such advice does not have to be in the form of a text book of family law, the cost of which itself would be enormous. The advice should be simple to understand, concise and to the point in so far as costs are concerned, with a clear statement of costs to date. It is obvious that fees of this extent simply put legal representation beyond the reach of ordinary people in this Island which is not in the interests of justice.
84. The Registrar considered that each party should meet his or her own costs, save that the appellant had to pay the respondent's divorce costs to the extent that there was £2,500 of his in an escrow account deriving from the sale of the boat G. She also considered that the appellant should pay £12,000 towards his wife's costs in relation to litigation misconduct. The respondent seems to think that there is a connection between the litigation misconduct award of costs and the costs which she had actually incurred. We do not think that is so. The Registrar's decision clearly distinguishes between the two, and she made her assessment of additional costs in respect of litigation misconduct in the sum of £12,000. We see no reason to interfere with that assessment.
85. The Family Registrar ordered that the appellant should pay maintenance for the children of the family, and she announced her decision in these terms:-
"73. With regard to child maintenance, the wife indicated that when these proceedings end, she will be looking to return to work [sic] but also care more for her mother. The husband should be paying something towards the upkeep of the children and has offered in effect the sum of £130 per month. The husband is in receipt of LTIA [long term invalidity allowance], assessed until March, but he can work whilst in receipt of it, so it is in his interest to get a job as soon as he can. I order that he pays £55 per week while he receives LTIA and income support and thereafter if his income is greater than £16,000 per annum, 20% of his net income. [There] will be the usual provision as to maintenance review on any material change, the Jersey Retail Price Index or one or both of the children attend further education or training. I would order that any child maintenance not paid will be deducted against the lump sum the husband is due to receive."
86. The Act of Court is in these terms:-
(a) [The Appellant] shall pay maintenance for the children of the family from the date of the order until each child shall attain the age of seventeen years or completed education whichever shall be the later. This is calculated to be £55 per week while the [Appellant] is in receipt of long term incapacity allowance and income support in the sum of £15,000 or thereabouts. Maintenance shall be paid upon the same terms that the [Appellant ] is receiving payment, ie weekly or monthly
(b) The level of maintenance shall be reviewed:-
(i) Upon [the Appellant] finding employment and his income from all sources increasing to a level greater than £16,000, whereupon the level of maintenance shall automatically increase to 20% of his income net of tax and social security payments only;
(ii) Upon any other material change of circumstances of either party or of either child of the family;
(iii) Annually upon the anniversary of this order in accordance with any increase in the Jersey Retail Price Index, provided that the level of maintenance shall never fall below that paid in the preceding twelve month period;
(iv) For each child as and when he should move to further education or training including any time at Highlands College, Jersey;
(c) The payment due [to the Appellant] under the terms of paragraph 4 above shall be held by way of secured provision against the payment of maintenance by the [Appellant ]."
87. The appellant appeals against this order. He contends that the Registrar did not adequately take into account his level of income and expenditure, and that she set a level of child maintenance that was unreasonable and/or unaffordable. There was no cross appeal by the respondent on the amount of maintenance so ordered. However in her contentions, the respondent indicated that she had hoped for a clean break, and there were emotional and medical reasons behind that request. She did not wish to spend the forthcoming years chasing child maintenance or trying to ascertain what the appellant's income was, or when he gained employment. It would be financially and emotionally costly for her to do so. Before us, the respondent told us she did not accept the outgoings which the appellant claimed which she said were more than her own, and she had to pay for herself and the two boys, and her income was much the same. She said that £55 for the two children was less than 20% of what he earns or is given. The payment of maintenance had been sporadic. As of 30th April (the hearing before us was on 6th and 7th May), the arrears of maintenance had not been paid, although Advocate Godden advised us that his firm had made a transfer to the respondent's bank account the previous week, and that maintenance was paid up to date. The respondent contended that there were undisclosed bank accounts; that the appellant's spending was excessive and she noted that he had spent money on a break at a four to five star hotel. That was unobjectionable in itself, but not when a party claimed not to have money for maintenance of the children. In her view her former husband was co-habiting and certainly able to afford more.
88. In her submissions to us, the respondent said that in order to achieve a clean break she would want the maintenance for the children quantified now at £55 per week for eight years, plus 2% per annum, and the amount to be taken as an adjustment of any cash sum which she was due to pay the appellant in due course. That would leave the appellant free, if he wanted to do so, to give directly to them.
89. Dealing with last point immediately, we do not think it is right in principle to consolidate future maintenance payments for the children in this way. The future is too uncertain, and it would be wrong to do so.
90. We also consider that the regular payment of maintenance is an obligation which the appellant must recognise. We are going to order that it is paid by standing order from his bank account. We note that if for any reason the standing order is not met, the respondent will be able to bring proceedings for arrears of maintenance and we anticipate that if it should be necessary for her to do so, the court will not only give judgment for the amount in question but will also consider indemnity costs and penalty interest at 8% per annum compounded until payment. We do not think the whole of the sum due to be paid to the appellant should be held by way of secured provision for payment of this maintenance. To follow that course would be to freeze his capital for what may be a considerable period of time. Accordingly, we vary that part of the Registrar's order so that 25% of the sum due to be paid to the respondent shall be held by way of secured provision against the payment of maintenance by him for the children.
91. It is transparently clear that £55 per week is nothing like adequate for the purposes of the children's maintenance. Nonetheless, there is no appeal by the respondent against that figure. We think the Act of Court should stipulate an amount of money by way of maintenance per child, and we therefore order that the sum be recalibrated at £27.50 per child per week until each child respectively attains the age of 17 years or completes his education including tertiary education, which ever shall be the later. The remaining detailed provisions of paragraph 9 of the Act of Court of 3rd October, 2013, will remain undisturbed. It is obvious that when child maintenance for one child ceases to be payable the appellant's financial position will improve. We would expect the parties then to try to reach agreement on an increased level of maintenance for the other child, and in the absence of agreement, we expect the respondent to apply to the Court for a variation in the level of maintenance for that second child.
92. It will be apparent from these decisions that we do not share the view advanced by the appellant that the Registrar did not adequately take into account the appellant's level of income and expenditure and set a level of child maintenance that was unreasonable or unaffordable. We have considerable doubt as to whether the appellant 's expenses are reasonable, and to the extent necessary he should contain such spending in order that he can make the appropriate payments by way of maintenance for his children as he professes himself keen to do.
93. We recognise the respondent's concerns about identifying the appellant's income changes from time to time. We accordingly order in addition that the appellant must deliver to the respondent on a half yearly basis a statement of his income from all sources during the preceding six months, verified on affidavit, identifying the amount of income and the source of it. The first such statement should be produced for the period ending 30th June, 2014, and thereafter six monthly. With that information, the respondent will be able to consider an application to trigger a review of child maintenance should that be necessary, although it is to be hoped that the parties could agree an appropriate figure without recourse to court process. We also recognise that the children are now of an age when they can make their own contribution to the outgoings incurred on their behalf whether by Saturday or holiday work. Both parents should recognise this as well, but it does not obviate the obligation on the part of the appellant to make a proper contribution himself by way of maintenance for them.
94. We make no findings on any alleged co-habitation by the appellant, which if true, would reduce his outgoings. There is no basis for us to do so. We note that he denies such co-habitation at present.
95. The appellant has now transferred his interest in C to the respondent on the terms set out in the act of court of 3rd October, 2013. The respondent has paid him the sum of £10,000. Again in accordance with that act. Paragraph 4 of the act of court, reflecting the decision of the Family Registrar is in these terms:-
"The [respondent] shall pay to the [appellant ] a further sum of £135,000 less any payment in relation to costs as referred to below and any deduction in relation to the secured provisions set out at paragraph 9(c) below shall be payable by the [respondent] upon the last occurring of:-
(a) The second child completing his education inclusive of further education, whether it be the older or younger child to do so;
(b) K's life enjoyment of [C] coming to an end by whatever means; or
(c) Upon any earlier sale of [C] by the [respondent];
(d) Upon the remarriage of [respondent] if earlier;
(e) Her earlier election."
96. The important questions raised by this part of the order are the amounts which should be payable by the respondent to the appellant, and the date upon which that amount, whatever it is, is payable.
97. As we have already said, we share the view of the Registrar that this is a needs case. The immediate needs are the maintenance of the home of the two children of the marriage currently aged 17 and 14. The Registrar has expressed her order in terms of securing the home until the second child has completed his education, inclusive of further education. With respect to the Registrar, we think this is too imprecise. It is unclear whether the expression includes professional education as far as qualification in a chosen profession, which could take the relevant period forward many years. We think the right period of time to allow the property C to be available as the home for the respondent and her sons is until the youngest child attains the age of 22, or ceases full time (including tertiary) education, whichever is the sooner. The needs of the appellant to have access to capital for any acquisition of property for himself must be subordinate to the needs of his sons and in one sense the needs of the respondent in that neither appellant nor respondent can complain for the reasons given at paragraph 48 above that they do not have ready access to the capital tied up in C.
98. If one takes the current value of C, subject to the life enjoyment, at £450,000 deducting the mortgage of £127,000 one is left with £323,000 of equity. Adding back the respondent's pension of £15,000, she has a capital sum of £338,000 the conveyance having now taken place so the property is in her sole name. The appellant has his PECRS pension with its CETV of £143,000 and his other pension of £16,000 making a total of £159,000. In order to reach parity as between the two of them, the respondent should pay the appellant the sum of £89,500. From this needs to be deducted the sum of £12,000 for litigation misconduct and the sum of £5,000 for the wrongful appropriation by the appellant of the full amount of the jointly owned PEP. This would give a figure of £72,500.
99. What these calculations ignore, however, is the value of the spes - put another way, the value of the reversion once K's usufruct has come to an end. For this asset, the respondent should clearly pay something to the appellant. We do not think however that it carries its full value of £150,000 (being half of the difference between the value of C subject to the usufruct and the value of that property free of it). We think that the figure needs to be discounted having regard to K's state of health and life expectancy, and having regard to the fact that the respondent will have the burden of making the contributions due under the contract of usufruct with her mother and the maintenance of the property. Furthermore we think that an amount ought to be notionally allocated for the advance on inheritance in the sense that both parties agreed that the property had originally been acquired at an under value. If one estimated the value of the appellant's spes at £62,500 bearing in mind we do not actually have any actuarial evidence, but having regard to all these features, it does not seem to us that such a calculation would be unfair. Even though the Registrar appears to have overlooked the value of the PEP misappropriated by the appellant, her order therefore broadly amounts to equivalence as between the appellant and the respondent.
100. There are a number of different approaches that one could take to making these calculations, as is apparent from the difference in approach taken between the Registrar and ourselves. However, looking at the matter in the round, and applying the calculations which we have described above, it is equally clear that we do not think the Registrar's order was in any way unfair. In the circumstances, subject to the minor variations which we have directed in connection with the orders for child maintenance and the trigger event for the payment of further capital, we are not going to disturb the Registrar's order.
101. The Act of the Registrar dated 3rd October, 2013, stands save for the following variations (noting that in that Act the petitioner is the respondent to this appeal, and the respondent is the appellant on this appeal):-
(i) Paragraph 4 is to read as follows:-
"The petitioner shall pay to the respondent a further sum of £135,000 less any payment in relation to costs as referred to below shall be payable upon the first occurring of:
(a) Any sale of the FMH by the petitioner
(b) The remarriage of the petitioner
(c) The earlier election of the petitioner
(d) The second child of the parties (whether the younger or older child) attaining the age of twenty two years or completing full time education (including tertiary education) or K's lifetime enjoyment of the FMH coming to an end by whatever means, whichever is the later of those events.
(ii) Paragraph 9(a) is to read as follows:-
"The respondent shall pay maintenance for each of the children of the marriage from the date of the order until each child respectively attains the age of 17 years or ceases full time education (including tertiary education) whichever shall be the later. This is calculated at £27.50 per week per child while the respondent is in receipt of Long Term Incapacity Allowance and income support of less than £16,000. Maintenance shall be paid monthly in advance by standing order into such account as the petitioner designates from time to time or by such other method as she may agree in writing."
(iii) Paragraph 9(c) is to read as follows:-
"For as long as the respondent is under an obligation to the petitioner to pay maintenance for either of the children of the marriage, he shall be obliged to provide to the petitioner on 30th June, 2014, and thereafter six monthly a statement, verified on affidavit, of his income from all sources during the preceding six months, identifying the amount of income from each source."
(iv) There will be a new paragraph 9(d) to read as follows:-
"Twenty five per cent (25%) of the payment due to the respondent by the petitioner under the terms of paragraph 4 above shall be held by way of secured provision against the payment of maintenance by the respondent."
102. In all other respects the appeal and cross appeal are dismissed.
103. The draft judgment on this appeal was sent out to the parties in the usual way for comment on factual errors and typographical mistakes. The respondent has made a number of comments which go wider than this, and these have not been taken into account. She has said there are also two factual errors. The first relates to the quantum of the PECRS pension available to the appellant by early release, (paragraph 62 above refers), which she asserts is £40,000 and not approximately £32,500. We understand our figure to be consistent with the evidence put before us, but even if that is not correct it would not affect our overall assessment of the position. Secondly, we note that after the hearing of this appeal we have been informed by the respondent that the additional loans referred to in paragraph 68 above are no longer available to her. We do not think this alters our assessment as to the overall fairness of the Registrar's decision given that the conveyance to the respondent has now taken place and the consideration has been paid.
Matrimonial Causes (Jersey) Law 1949.
Matrimonial Causes Act 1973.
Matrimonial Causes (Amendment No. 5) (Jersey) Law 1978.
Wachtel v Wachtel  1 All ER 113.
James v Patterson  JJ 125.