Jersey Unreported Judgments

[2005]JRC021

royal court

(Family Division)

 

28^th February 2005 

 

 

 

 

 

Application for Decree Absolute refused - Enforceability of consent Orders

 

 

Advocate A.D. Hoy for the Petitioner

Advocate N.M. Santos-Costa for the Respondent

 

 

judgment

the registrar:

1.        The respondent/husband in this case has applied for the issue of a decree absolute.  What makes this unusual is that, in most divorce cases, it is the petitioner who applies, not the respondent.

2.        The relevant Rule is Rule 43(3)(a) of the Matrimonial Causes (General)(Jersey) Rules, 1979, as amended.  It provides as follows:-

"An application by a spouse to make absolute a decree nisi pronounced against him shall be made by summons and shall be accompanied by a notice of application in accordance with Form 8.

Provided that if the application to make the decree absolute is made after the expiration of one year from the date of the decree nisi the Greffier may require that the summons and notice be supported by an affidavit sworn by the applicant or by his advocate or solicitor accounting for the delay and may make such order on the application as he thinks fit or refer the application to the Court."

3.        The decree nisi was actually granted on 9th July, 2003, which is much more than a year ago, but since I have some knowledge of the case, I have not insisted that the application be supported by an affidavit to account for any delay.  The fact is that a memorandum of agreement regarding the settlement of ancillary matters has only just been ratified the Inferior Number.

4.        The Act of Court ratifying the agreement reads:-

"UPON hearing the advocates of the parties;

AND UPON agreement having been reached between the parties asset out in a Memorandum of Agreement, dated the 24^th January, 2005, signed by the advocates of the parties and the parties;

IT IS ORDERED by consent that the said Memorandum of Agreement, a copy of which shall remain lodged at the Judicial Greffe, be ratified."

5.        Despite the simplicity of the order, the agreement is more complex.  The intention can be explained as follows:-

(i)        the husband is to sell his property in Dubai, worth around £800,000, although no buyers have been found at that price yet;

(ii)       out of the proceeds he will pay to Natwest Bank the mortgage secured on T, the house where the wife is living in Jersey (the "Jersey house");

(iii)      upon repayment thereof, he will transfer the Jersey house free of mortgage to the wife;

(iv)      until the mortgage has been redeemed he will pay the monthly mortgage instalments;

(v)        when the Dubai property is sold, he will also pay the wife:-

(a)       the sum of £70,000;

(b)       her costs in the sum of £10,000;

(c)       the balance due for an accountant's report.

6.        It is not clear from the order which parts of the agreement are ordered and which parts are undertakings on the part of the husband.

7.        It seems to me that it is unlikely the sale of the Dubai property is something which can be ordered by the Jersey Court.  It could only be done, it seems to me, if the Court can be satisfied that the order will be recognised and acted upon by the Dubai authorities, which I would have thought was doubtful.  See Parkes -v- Vrioni (18^th October 1999), Jersey Unreported; [1999/182].      It must, therefore, be considered an undertaking, being a matter to be carried out prior to the transfer of the Jersey house.

8.        It is submitted on behalf of the husband/respondent:-

(i)        that he is entitled to a decree absolute, having settled ancillary matters;

(ii)       difficulties regarding disclosure and the mistrust which has existed between the parties should now be disregarded because both parties are now satisfied that disclosure is complete;

(iii)      the mere fact that the husband is resident abroad does not entitle the wife to prevent the decree nisi being made absolute.  Any difficulties of enforcement cannot of themselves lead to the conclusion that the husband will frustrate any orders for ancillary relief: Wicker -v- Wicker [1998] 2 FLR 326.

(iv)      his partner is about to give birth to his child.  He would prefer for the birth to take place after the issue of a decree absolute.

(v)       his base is still in Jersey, his "home" is here, he relies on medical treatment here.

(vi)      he should not be penalised  for any possible future breaches of the agreement; he certainly has complied with its terms to the best of his ability to date.

9.        However, the wife's advocate has convinced me that it would not be safe for me to allow the decree to be made absolute yet.

10.      The Judge in the case of Wicker -v- Wicker, cited above, continued:-

"Having considered with care all the disclosed material, I conclude that there is a very real risk that if this husband is granted a decree absolute and permitted to undergo a lawful remarriage he will wash his hands of any further involvement in the ancillary relief proceedings, so that the wife will not be able to establish her true entitlement and receive her appropriate share.  The only aspect which is keeping the husband's participation in the legal process is his need for a decree absolute."

11.      In this case there is the same lack of trust, coupled with the same risk that the husband, once free of all ties of marriage, will have no pressure on him to proceed with the Dubai property sale.          The respondent's application to make the decree absolute will, therefore, be refused.

12.      As a matter of principle, it would be most helpful if agreements presented to the Court for ratification were presented to the Court in the form of a consent order, making it clear, by separation into appropriate paragraphs, which parts of it constitute orders under the Matrimonial Causes (Jersey) Law, 1949, as amended, and which parts constitute undertakings on the part of either party.  It would be appropriate for the any crucial undertakings, for example, as in this case, a foreign property transaction, to be given in person by the relevant party to the Court, when the consent order is ratified.  Once an undertaking is given to the Court, a matter might be enforceable, if it is not specifically covered by Articles 27, 28 29 or 29A of the Law.  On the other hand, even if an agreement is "ratified" by the Court, I doubt that such a matter is capable of enforcement, unless a specific undertaking is given personally to the Court.  Such an undertaking was not given in this case.  It would have strengthened the husband's case if he had done so. 

13.      Since the Judgement of L -v- V [2004]JRC033, it has been the duty of the Court to make reasonable enquiries to ensure that every agreement ratified by the Court is fair and reasonable.  It must also be the duty of the Court to ensure that it is enforceable.

Authorities

Matrimonial Causes (Jersey) Law, 1949, as amended.

Matrimonial Causes (General) (Jersey) Rules, 1979, as amended: Rule 43(3)(a).

Wicker -v- Wicker [1998] 2 FLR 326.

Parkes -v- Vrioni (18^th October 1999) Jersey Unreported; [1999/182]

L -v- V [2004] JRC033.