Guernsey Legal Resources

“an order that there should be a more equitable distribution of the liabilities arising from the marriage, i.e. [the respondent] be ordered to pay a lump sum or to make such periodic payment to [the appellant] or such other person as [the appellant] may, from time to time, where the court shall direct, nominate, to ensure the repayment of the liabilities of the marriage.”

    “1. The parties were married on November 13th, 1992; there are no children of this union.

    2. A final decree of divorce was granted to the respondent on November 7th, 2000.

    3. The appellant is responsible for debts totalling £110,408.71 from the marriage. The respondent has paid off £86,609.20 on joint debts and is paying off a further £31,856.00, totalling £118,475.00 [sic].

    4. The appellant now works as an auxiliary nurse; the respondent is a chartered accountant and a director of BDO Reads.

    5. It is accepted that there are no surplus assets available for distribution.”

Whether or not the respondent has any liability for the debts now owed by the appellant which were incurred during the marriage is a salient issue in the appeal.

3 It was agreed that resolution of the question as to whether the court could make orders against the husband which would enable the wife to discharge debts, or vice versa, and, if so, in what circumstances, depended on the construction of arts. 46 and 47 of the 1939 Matrimonial Causes (Guernsey) Law.

4 Article 46, entitled “Power of Court to order vesting or division of property,” provides, at para. (1), insofar as material:

    “Where a decree of divorce or nullity of marriage or . . . judicial separation has been granted, the Court may, if it thinks fit . . . as regards real and personal property in which each . . . of the parties to the marriage has, notwithstanding the provisions of art. 44 . . . of this Law, an interest, present, prospective or conditional, direct that their interests in such property shall be vested solely in the one or the other of the parties or shall be divided between them . . . [and] order that one party shall pay to the other for his or her absolute benefit such gross or periodic sum or both for any term not exceeding the life of the party in favour of whom the same is secured as the Court may direct, or may refrain from making any order as to payment or security.”

“In my judgment, it is apparent that an interest in property under art. 46 applies to an asset. No third party can be involved when this article is used. In other words, I agree that art. 46(1) cannot apply to a liability. To say otherwise would do violence to what I take to be the plain and ordinary meaning of the statute.”

No appeal is made against this part of the Lieutenant Bailiff’s judgment which seems to us to be clearly correct.

    “Where a decree for divorce, judicial separation or nullity of marriage has been granted, 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 one party shall pay or make provision for the payment to the other party during any term not exceeding the life of such other party of such annual or other periodic sum of money for or towards the support of such other party

“[The heading to] art. 47 refers to ‘contributions for support’. Money is paid under art. 47(1) ‘for or towards the support of [the] other party.’ In my judgment that is provision from what would be—and is—commonly termed ‘maintenance,’ which denotes the provision of necessaries and conveniences of life such as food, clothing, etc. (see, for example, Acworth v. Acworth, [1943] P. at 22). This must be the primary purpose of the order. I consider it significant to remind myself that counsel for the appellant has indicated that her client has not made an application for maintenance per se, but has a low income so that is a possibility. The word ‘support’ seems to me to relate to payment for the daily exigencies of life such as fuel, food, clothing, etc. This goes back to the old case—at which I have looked—and I apologise for the antiquity of the case, but it is what I found: R., ex rel. Treasurer of Kent v. Borough of Gravesend (Council). It is cited in Stroud’s Judicial Dictionary of Words & Phrases under ‘Support.’ It follows that, although it is perfectly possible to make some provision for ongoing liabilities in an order, the primary purpose must accord with the meaning of the words in the Law. Accordingly, I consider—and it also follows—that the application, as presently framed, seeks to cover a situation which should properly be within the ambit of a civil trial in the Royal Court, not under the guise of arts. 46 and 47 of the Law of 1939. I cannot stretch the plain meaning and intended the statute [he meant, we presume, ‘intendment of the statute’] to cover the situation faced in this application, nor would I consider it desirable to do so.”

8 Both parties agreed that, in so determining, the Lieutenant Bailiff fell into error. Since, however, his ruling, unless and until overruled, disables him from proceeding further in this matter, we are obliged, if we see fit, to set aside that determination. Counsel for both parties gave us short but helpful submissions to persuade us to do so.

9 We respectfully agree with counsel that the Lieutenant Bailiff gave an unduly restrictive interpretation of art. 47 for the following reasons:

    (i) “Periodic payments to discharge debts of another party” is, in its ordinary and natural meaning, conducive to that other party’s support.

    (ii) There is no warrant in statute or other law for construing “support” in the narrower way adopted by the Lieutenant Bailiff.

    (iii) Article 51 of the 1939 Law specifically directs the court to ascertain the liabilities of the parties for the purpose of deciding what, if any, order

    (iv) Section 25(2)(b) of the English Matrimonial Causes Act 1973 requires the court, when exercising its powers under Part II of that Act, to have regard to “the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.” Manifestly, this includes debts. It would be peculiar if, in this matter, Guernsey law excluded such considerations.

    (v) English authorities on the meaning of “maintenance” in the matrimonial context encouraged, by analogy, a broader construction of “support.” See, inter alia, Re Dennis (Decd.) (2), where Browne-Wilkinson, J., as he then was, said ([1981] 2 All E.R. at 145–146), in describing the nature of maintenance payments, that he was not suggesting—

“that there may not be cases in which payment of existing debts may not be appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance.”

See further Espinosa v. Bourke (3), a decision of the English Court of Appeal, and A v. A (Maintenance Pending Suit: Provision for Legal Fees) (1), a decision of Holman, J.

    (vi) The authority on which the Lieutenant Bailiff relied, R., ex rel. Treasurer of Kent v. Borough of Gravesend (Council) (4), was a decision about who was liable under a contract between the Borough of Gravesend and the County of Kent to maintain prisoners who were held in the county gaol awaiting trial. Its legal and factual context was quite different from that of the present case.

    (vii) It would be wrong to conclude that the payment of the appellant’s debts was solely for the support of third parties. As a matter of common sense, such payment would support the appellant by, amongst other things, removing the threat of enforcement and/or execution; improving her financial standing and enhancing her own career prospects; and enabling her to devote a greater percentage of her own income towards meeting her day-to-day needs.

    (viii) Common sense also suggests that the court should have power to make the orders sought; otherwise it would or might not be able to do justice in an inherently difficult situation.

10 Because of his approach to the issue of jurisdiction, the Lieutenant Bailiff declined to “go through the complex s.25 check-list procedure at this stage. The question is how far, if at all, the matter can proceed. I can only go into such an exercise if I rule in favour of the appellant at this

11 Accordingly, in our view, and in the light of our ruling, the matter must revert to the Lieutenant Bailiff to exercise the power under art. 47, which we have held he enjoys, to determine whether or not to order the respondent to make periodic payments to assist the appellant in the discharge of her debts.

12 In so doing, the Lieutenant Bailiff will naturally bear in mind that, pursuant to art. 47, any sums he orders must be reasonable, and that in determining what, if any, sums should be paid by the respondent, he must take into account all of the circumstances of the case, including those specified in the article. It will be for him to decide, in light of the so-called s.25 check-list, any relevant jurisprudence and what importance he attaches to the factors referred to in a letter from the respondent’s to the appellant’s advocate, dated July 15th, 2005, namely—

“. . . the circumstances in which the liabilities arose, the extent to which they were for the parties’ joint benefit, whether (as alleged) the respondent was responsible for incurring any of the liabilities and, having regard to his other financial commitments and the extent to which he has already met joint indebtedness, whether it is reasonable to make an order . . .”

13 Some concern was expressed at the Bar as to whether, given that, as we were informed, certain persons claiming to be creditors of the appellant have instituted proceedings in the local civil courts against her, there might not be a risk that different views would be judicially expressed in those courts and in the Matrimonial Causes Division of the Royal Court as to who in fact was liable for any such debts, i.e. the appellant or the respondent or both. In our limited state of knowledge we cannot pronounce on the reality of such risk, but, no doubt, if agreement cannot be reached between interested persons, appropriate orders can be made by the Lieutenant Bailiff or the civil court to avoid its unnecessary occurrence. It is obvious that the appellant cannot claim support in respect of debts which are not hers. Beyond that we need make no observation.