Jersey Unreported Judgments

[2010]JRC115C

royal court

(Family Division)

23^rd June 2010

Before     :

V. J. Obbard, Registrar, sitting alone.

 

IN THE MATTER OF XX

AND IN THE MATTER OF REASONS FOR MAINTENANCE PENDING SUIT

Advocate R. E. Colley for the Petitioner.

Advocate C. R. G. Davies for the Respondent.

judgment

the registrar:

1.        The husband in this case is a general medical practitioner, working as a sole practitioner.  The wife was, for many years, his book-keeper, even after they had separated in January 2007. 

2.        Up until 23^rd April, 2010, the husband continued to make payments of £500 per week to the wife as general contribution to her maintenance and the maintenance of the children.  He also paid the sum of £500 per month, into a different account, in respect of the two younger children's school fees.  The money for the school fees also ceased in March 2010. 

3.        However, on 11^th May, 2010 a total of £100 per week recommenced after some correspondence between parties' lawyers.  No money was paid for the children's school fees. 

4.        The wife, in her open position wants the reinstatement of increased maintenance for the children and herself and an amount to be set aside for school fees.  The amounts are £385 per week for child maintenance, £460 per month for spousal maintenance and £675 per month for school fees.  At the hearing, Advocate Colley, for the wife, also drew attention to the high cost of entertainment and school trips of £428 per month which, it was argued also formed part of the wife's reasonable needs. 

5.        The husband's open position acknowledges that he must pay interim child maintenance, but makes no provision for spousal maintenance.  The husband also offers to pay school fees.  He suggests a figure for child maintenance of £250 per week. 

6.        I did not hear oral evidence but both parties' advocates made submissions and, at the end of the afternoon's hearing, I had a good understanding of the differences between them. 

7.        The law governing the assessment of interim maintenance is set out in Rayden and Jackson on divorce and family matters, 18^th edition, paragraphs 16.17 and 16.18:-

"The court has an unfettered discretion to award such sum as it thinks reasonable.  There is no hard and fast rule, and no fixed proportion: each case depends on its own facts.  It has been said that the approach to maintenance pending suit should be empirical, and that in the ordinary sort of case the district judges who deal with these applications will have to take a broad view of means on the one hand and income on the other and come to a "rough and ready" conclusion, or take a "broad brush" approach.  The overriding consideration is the actual needs of the parties pending suit.  Although the provisions of s 25 of the MGA 1973 are expressed to arise only when the court is deciding whether to exercise its powers under s 23, 24 or 24A, the court may nonetheless have regard to the criteria listed in s 25 on an application for maintenance pending suit. 

In practice, as oral evidence is rarely given, it will be unusual for the court on an application for maintenance pending suit to be in a position to make findings of fact on issues in dispute sufficient, for example, to deal with conduct or allegations of non disclosure.  However if it is demonstrated that the paying party has not performed his duty to make full and frank disclosure of his financial resources, then the court can take a broad and robust view of his means, and it does not have to accept and proceed on the basis of the assertions of the paying party as to his means and an inability to pay.  The court can look at the reality of the situation and take into account voluntary funding from third parties.  Any under provision or over provision in the order for maintenance pending suit can always be corrected when the account comes to be taken at the substantive hearing when there every opportunity to do fairness by set-off.  The court has the power to vary, discharge, suspend and revive an order for maintenance pending suit."

Child Maintenance and school fees

8.        The assessment of child maintenance is relatively straight forward, provided the Court can establish the net earnings of the payer or non-resident party.  In this case, there was some dispute as to the net earnings of the husband.  Neither party could be certain that the 2009 income figure of £75,000 was net of social security, because final accounts have not yet been produced. 

9.        However, assuming that the husband's correct net income figure for 2009 is £75,000, his income is just under £1,500 per week.  The appropriate maintenance figure in the "At a Glance" essential Court tables for ancillary relief published by the Family Law Bar Association for 2010-2011 is £300 per week for two children.  Taking the "broad brush" approach referred to in paragraph 7 above, I propose to implement the guidance offered by the tables and make the order accordingly. 

10.      In doing so I am alert to the criticism levelled at the husband who is a professional man and yet seemingly unaware of his exact income.  Putting it bluntly, I think it is time that he is aware of it.  In order to come to a settlement of his case, he will have to understand his exact financial position, and depending on what that is, give appropriate instructions to his lawyers. 

11.      It does strike me that an income of £75,000 is on the low side for a full time General Practitioner, but that figure is the best figure we have to work on at this interim stage in order to calculate maintenance.  However, any "under provision" can be corrected at a final hearing if the figure is shown to be inaccurate, as the passage quoted above from Rayden and Jackson indicates. 

12.      In this case, I think that school fees should be paid in addition to maintenance for the children.  Not only has the husband offered to pay, I think that school fees in most cases should be considered separately from the payment of maintenance.  

Spousal Maintenance

13.      Should the husband also pay spousal maintenance?  The wife no longer has a regular job and is undergoing a university course.  The wife's submission is that he could easily afford it if he were to reduce his excessive spending on holidays, meals out and general lifestyle. 

14.      His spending appears to be so high in relation to his stated earnings that he must rely on an additional source of income.  For example, his MasterCard transactions for January 2010 total £4,065.86, for December: £2,406.17 and for November: £1,367.46.  In March he paid out £6,352, on the same card, apparently for legal fees.  There have been payments for two ski trips, another trip to the USA, and many visits to restaurants, some in the course of only a few days. 

15.      The additional source of funding has, in fact been, rather surprisingly, the generous funding of his entire accommodation and some utility bills by his mother-in-law, Mrs C.  Indeed Mrs C has supported both the husband and the wife most generously for many years.  The wife lives in the former matrimonial home, which is a property bought outright by Mrs C.  Her regular support annually has been £8,000 towards education fees (more recently the two younger children's school fees and the wife's university course) £1000 to the wife on her birthday and a further £6000 to support the family. 

16.      I was told that the husband has now moved away from this accommodation but is still the guest of a friend.  He will soon have to fund his own accommodation and living expenses which could come as financial shock.  His Advocate Mrs Davies described both husband and wife as being "shielded from the real world, not only after the separation but throughout the marriage".  The case is therefore unusual in that the normal consideration of the needs of the parties is more difficult to apply.  The passage in Rayden and Jackson advocates:-"the overriding consideration is the actual needs of the parties pending suit."  What does this mean if they are both substantially funded by a third party?

17.      In considering "the actual needs" it seems to me that I should look at all the circumstances of the case.  So, I have briefly considered the capital resources available to each party, not in detail, as I will have to do at a later stage, when I will have to consider the appropriateness (or otherwise) of a capital "clean break" between the parties.  The wife does appear to have greater resources at her disposal than the husband.  The wife has over £1,000,000 and the husband a little less than £300,000. 

18.      I have, however, in doing so, been attentive to Mrs Colley's submission that capital should be so far as possible preserved pending suit and nether party should be obliged to live off capital if that can be avoided.  She cited a passage from PS-v-C & M 2002/141 in which reference is made to a passage in Butterworth's Law Service:-

"Experience has also shown that the courts can be sympathetic to the argument that, where the respondent has sufficient income to fund a maintenance pending suit order, it may be appropriate to make such an order in order to avoid the applicant having to service her day to day needs by resorting to matrimonial capital assets which ought to be preserved pending the making of the final ancillary relief orders".

19.      I was told by Mrs Davies acting for the husband, that some of the wife's assets were actually built up for her by the husband.  Furthermore, one of the husband's accounts had been depleted by the husband's contributions to her and the family since the separation, to the point that an account of the husband's had been closed.  I have considered the rather unusual statement in the wife's affidavit of means at paragraph 1.15 that: "all funds used jointly".  I do not know exactly what she meant by this but it does seem to indicate that income was to be shared. 

20.      I would certainly not wish to base a final decision on ancillary matters on what appears to be an allegation of conduct without hearing full evidence, but, at this stage, I do take into account what I see to be the challenges which lie ahead for both parties and the resources which both have to address those challenge in the context of the statement from Rayden about the actual needs of the parties pending suit. 

21.      Above all, I accept Mrs Davies' submission that the husband, if I accept that his earnings do not exceed about £75,000 net per annum, cannot reasonably afford to pay spousal maintenance at the rate applied for of £460 per month.  This would be the annual total if I allowed the application for spousal maintenance:-

Child Maintenance £300 per week =   £15,600

School fees £675 per month           =  £8,100

Spousal maintenance £460 pm   =      £ 5,520

£29,220 or 39% of his net income.

22.      To sum up, these are my reasons for making a nominal order only that the husband should pay spousal maintenance in this case:-

(i)        The wife has not demonstrated to me that she has a need for interim spousal maintenance for herself over and above the payment of child maintenance and school fees.  It is not of itself sufficient to show that she has become accustomed to a certain monthly income and the husband until recently was (perhaps unwittingly) paying her certain sums. 

(ii)       In most cases the doubt about continuing family support is caused when it is the husband who pays the maintenance and it is his family who have provided him with the means or some of the means to pay it.  The two cases concerning the wealth of the extended family members included in the Court bundles are examples of this kind.  The cases are:-TL-v-ML and others (ancillary relief: claim against assets of extended family) [2005] EWHC 2860 (Fam) and M-v-M (maintenance pending suit) [2002] EWHC 317 (Fam).  By contrast, in this case, the extra family support has been generously provided to both parties by the wife's family (the potential recipient of spousal maintenance).  It is the husband who seems to be about to lose the family support.  It would be perverse, if at just this point, the Court were to order him to pay spousal maintenance to the wife, if she can demonstrate no clear need for it. 

23.      If ordered, it would, together with all other payments, constitute an unreasonably high proportion of his income. 

Authorities

Rayden and Jackson on divorce and family matters, 18th edition.

Family Law Bar Association for 2010-2011.

PS-v-C & M 2002/141.

TL-v-ML and others (ancillary relief: claim against assets of extended family) [2005] EWHC 2860 (Fam).

M-v-M (maintenance pending suit) [2002] EWHC 317 (Fam).