S v T (Matrimonial)

In the case of In the matter of S [2011] JRC 119 , the issue was considered as follows:-

A court should make an order with a view to achieving fairness and any discount to the pensions is dependent upon the facts of the case. In U-v-W [2014] JRC 027A

A court also has a discretion as to whether or not to disregard the pre-marriage element of a pension. I accept that the element of pre-marriage pension should be disregarded, bearing in mind the facts of this case, and consider that a figure of £25,000 is more appropriate, being approximately 3/7ths of the total sum.

So far as the Company E scheme pension is concerned, it is submitted on behalf of the wife that it should not attract any discount. In the case of Downes-v-Marshall [2010] JRC 115B such a pension was described as a " gold plated asset " i.e. £58,478.87. It is submitted on behalf of the wife that as a result of the parties' joint decision that the wife would focus on bringing up Child 1, she has been unable to build up her own pension. She has no assets of any worth and she has suffered a relationship disadvantage. The wife argues that it would not be equitable for the Court to discount the pension in the way that is sought by the husband because this is a long marriage (10 years with a period of pre-marital cohabitation of 7 years).

The husband states that the Company E pension started in May 2011 and the contributions made were " for the most part whilst he and the wife were separated ," namely until April 2014, although the wife maintains they were still in a relationship during that period and were married. The wife can locate no case law which suggests that where parties separated and then reconcile, that the period of separation should be ring-fenced from the marital pot and I do not propose to do so.

The wife wants £50,000 in total now in respect of the pensions, or if the husband is unable to raise a lump sum, which he is on the evidence unable to do, payment by way of instalments of £500 per month until the £50,000 has been paid off, once child maintenance and arrears of child maintenance has been paid. The pensions are illiquid assets, and in any case the husband cannot give her a lump sum now as he does not have liquid assets with which to pay her. He is only 48 and will not receive monies from his pension for some years, but the wife is asking for money now.

In the case of E v P and G [2004] JLR Note 42 , Registrar Obbard held:-

If the figure of £25,161 and £58,478.87 are added together, the total is £83,638.

Both parties have a number of debts. The husband accepted that with hindsight borrowing £8,000 to spend towards holidays was not a good idea and the wife said she should have gone through the finances before her mother spent money on the mobile home. With his income in excess of his expenditure, and because the husband has not paid regular child maintenance, it is puzzling that the husband took out a loan with G for using only £1,000 towards arrears of maintenance. I am not clear exactly how much the husband owes as he did not provide up-to-date documentation, despite having been requested to do so. Aside from the monies owed to her mother, the wife has debts incurred because her finances have been difficult, caused in part by the husband's failure to pay consistent child maintenance.

The overall objective of the Court, in accordance with the principles set out in White-v-White [2000] 2 FLR 981 is:-

The principle of sharing applies to all the parties' property, but, to the extent that their property is non-matrimonial, " there is likely to be better reason for departure from the principle of equality " (see Charman v Charman [2007] 1 FLR 1246 at (para 66)).

The date at which the property built up during the marriage is measured is usually the date of separation, although there will be circumstances in which post-separation accrual will be treated as matrimonial property (per Lord Mance in Miller v Miller and McFarlane v McFarlane [2006] UKHL 24 at [174]).

A court must consider the matters set out in Section 25 of the Matrimonial Causes Act 1973 . In this case, the only capital available is the illiquid assets of the husband's pension. The parties each have debts which they need to service. Taking into account the assets and liabilities, I order that the husband pays a lump sum by instalments of £30,000 which he will pay out of income at the rate of £520 per month on arrears of child maintenance being cleared. I have taken into account that the pension is an illiquid asset and the husband will not get his pension for some years hence. His income exceeds his expenditure (which I will deal with below) and he is clearing his liabilities. I have noted the case of U v W [2014] JRC 027A in which Registrar Canavan held that:

Child 1 lives with his mother. Her expenditure is much greater than her income, and the sum does not even cover the monies specifically spent on Child 1. The husband on the other hand receives £3,059 per month net, not including any bonus, and his son who lives with him pays him £400 per month rent. His total net income is, therefore, £3,459 per month. According to the CSA guidelines, on the basis of his net salary alone, he should be paying £458.85 per month. The wife is prepared however to accept a sum of £430 per month. The husband offers £250 now rising to £500 per month from February 2018 per month, being £430 plus arrears of £70 per month. In cross-examination he accepted he had surplus income of £769.57 per month not including the rental, but taking this into account and payments to F a surplus of £919.57 per month. It is the wife's position that child maintenance should be remitted until January 2016 when the parties separated and that he should have paid £430 per month from then. I am therefore ordering he pays £430 per month payable on the first of each month as from the 1st December, 2017 by standing order until Child 1 finishes full-time education, to be index linked annually with the JRPI, and paid until Child 1 is aged 18 or finishes full time secondary education (which includes college) whichever is the later, whereupon there shall be a review as to maintenance should Child 1 go on to tertiary education using the CSA 2000 UK guidelines as guidance (15% net income as the starting point). I was not told whether Child 1 is intending to go on to tertiary education.

The husband had agreed to fund any " extra " costs for Child 1 in respect of:-

I have noted that the husband has failed to make child maintenance payments in the past. A wage arrest was not requested but it is an order that a Court could make should it be necessary to do so.

In her open position the wife asked for a lump sum payment of £7,800 to cover arrears of child maintenance, although Advocate Orchard in summing up said that there were 23 months at £430 totalling £9,890. The husband considers he should pay arrears only from June 2017, but did not justify why this should be so. The husband has paid £1,000 plus 5 payments at £430 and one at £250, totalling £3,400 so taking the figure of £7,800, there is a balance of £4,400 due. Given that the husband cannot raise a lump sum of £4,400, he will have to make payments off the arrears by instalments, and his evidence was such that I order that he now pay £430 per month child maintenance plus £90 per month off the arrears, a total payment of £520 per month. Bearing in mind his evidence, I consider that the husband can pay £90 per month off the arrears, at the same time as child maintenance. He should have paid child maintenance in the first place and the wife has had to borrow money as a result of his failure to do so, which she needs to repay. This means he will clear the arrears in about 4 years' time should Child 1 still be in tertiary education. If Child 1 does not go on to tertiary education, and the child maintenance therefore ceases, then the husband will repay the arrears at the rate of £520 per month to clear them off.

The wife seeks a nominal spousal maintenance order. A Court will however usually try to order a clean break between the parties. In the case of PS v C and M [2003] JRC 116 where the wife was 57, the then Bailiff Bailhache said at paragraph 7:-

It is submitted on behalf of the wife that because of " her health difficulties and the relatively meagre income from her business " nominal spousal maintenance should be ordered " in case her financial position deteriorates further in the future ". In the case of Warn v Cornetta [2009] JRC 202, the Court accepted, that because of the wife's ill-health spousal maintenance could not be terminated without undue hardship to her despite it being " the policy of the court to strive to achieve a clean break ". That said, the spousal maintenance was to be " reviewed after three years from the date of this order, at which point it is our serious expectation that the respondent will have achieved financial independence. "

I was not referred to In the case of Q-V-R (Matrimonial) [2016] JRC152A. In this case Registrar Canavan held that:-

The wife in this case is seeking nominal maintenance should her financial circumstances deteriorate in the future, presumably the nominal maintenance during joint lives or until she remarry. I do not consider that the parties should be tied to each other indefinitely by the possibility that she could seek spousal maintenance in the future, so I am ordering a clean break.