Ackerman v Ackerman
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE PHILLIMORE,LORD JUSTICE ORR |
| Judgment Date | 06 March 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J0306-1 |
| Date | 06 March 1972 |
| Court | Court of Appeal (Civil Division) |
[1972] EWCA Civ J0306-1
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: The President)
Lord Justice Davies
Lord Justice Phillimore and
Lord Justice Orr
Mr. JOSEPH JACKSON Q.C. and Mrs. MARGARET PUXON (instructed by Messrs, Cripps, Harries, Willis & Carter, Agents for Messrs. Brignall, white & Orchard, Stevenages Herts) appeared on behalf of the Appellant (Wife Petitioner).
THE RESPONDENT (Mr. D.J. Ackerman, Husband, Respondent) appeared in person.
I have asked Lord Justice Phillimore to give the judgment in this case
This is an appeal by a wife from the judgment of the President on the wife's Applications for periodical payments by way of maintenance, Mr. Jackson, for the wife, takes two main points. First, the President, having considered the whole history of the marriage, formed the view that the wife was partly responsible for the breakdown of the marriage and apparently assessed her responsibility at 25 per cent. Having referred to section 5 C (1) of the Matrimonial. Proceedings and Property Act, 1970, he said (and I quote from the report in 1971 3 Weekly Law Reports 725 at page 729) "I have to consider the conduct of the parties, that is, in this case, the allegations of inexcusable behaviour said to be cruelty and of adultery made by the one against the other. In a sense this will have to be a declaratory judgment, for it seems to me that I must settle once and for all the question of past conduct, just as a judgment in a divorce suit with findings upon charges of the matrimonial offences of cruelty or adultery was conclusive". Then, passing over a few sentences, "How then is one to achieve a simple decision which can give certainty and finality, not only for today but for the future? I think this can be done by reaching and stating a maximum discount figure, that is to say the percentage by which, having regard to the conduct of the parties and the duration of the marriage, it would be just to reduce the wife's maintenance if, but only if, no other variable factor falls to be considered. The actual discount, if any, to be made at any particular time can then be decided in the circumstances which then prevail. It can never, of course, be more than the maximum unless the wife's subsequent conduct is relevant and that will rarely arise". He then proceeded to assess the wife's maximum discount figure at 25 per cent, but decided that, in the light of the circumstances in which theparties were then living, he could not make any (actual discount at the present time.
Mr. Jackson complains that there is no precedent for this sort of declaration, which is designed to fetter any tribunal which is called upon to deal in the future with the wife's rights in maintenance as, for example, on an application under section 9 to vary an existing; order. He asserts that the President had no power to make any such declaration; and he further complains that the finding that the wife must bear 25 per cent, responsibility is wrong on the facts and that the President had not complied with the requirements of section 5 in failing to consider some of the matters which the section required him to consider.
Mr. Jackson's second point is less complicated. He asserts that the President approached the problem of assessing the wife's maintenance in the wrong way in that he in effect put the cart before the horse He considered the husband's various expenses, including the amounts payable for maintenance of the children, and having found that after meeting these various expenses there was not much left he proceeded to award the wife £3 a week, which was manifestly too low.
Before dealing with these points I must refer briefly to the facts. The marriage was on the 1st August, 1953. The husband, then 24, was a radio electrical artificer in the Royal Navy The wife, 21, had been recently invalided oat of the Women's Royal Naval Service having contracted tuberculosis in 1951. She has at all times received a pension as a result. There are five children, one girl and four boys. Since the breakdown of the marriages the girl, who is now almost 18p and a boy of 14 have lived with the father, who has their custody. A boy of 16 and a boy of 4 have lived with the mother, who has their custody, The fifth child, Michael, who is 12, is sub normal. He is at a State boarding school. A joint order was made giving hi is custody to both the father and the mother and there was also an order that access should be shared between the parents. Heis apparently allowed to stay with one other of them now and then for a week at a time and also to stay for occasional week-ends.
The wife suffered further attacks of tuberculosis in 1956 and 1957, and possibly also in 1962. In November of 1962 she is said to have made a serious attempt to commit suicide and therefore was in a mental hospital for a short time. Meanwhile in 1958 the husband has left the Royal Navy and obtained employment as a computer design engineer. In 1969 the family moved to Stevenage, and not long afterwards the husband committed a serious assault on the wife. He was prosecuted, and on the 18th September pleaded Guilty to an assault occasioning actual bodily harm. He was discharged conditionally on his being of god behaviour for one year. However, on the 16th October they were reconciled, wife having written a letter in which she accepted the blame for the scenes and unhappiness which had market their married life.
In 1970 the marriage finally broke down. The husband left the matrimonial home in March and moved to Enebworth. However, he continued to visit the family. In May, on one of these visits, he and his wife had sexual intercourse: and they were again considering a fresh start. However, this did not materialise, and considering a fresh start. However, this did not materialise, and on the 1st July the wife filed a petition charging the husband with cruelty. He filed an Answer denying cruelty and in turn charging the wife with cruelty and adultery, She then amended her Petition to charge adultery. In November, 1970, the wife filed a Supplemental Petition in which "he charged adultery with a named woman named the date of the Petition. The husband then amended his Answer to ask or the exercise of the court's discretion. In effect he was admitting the adultery charged in the Supplemental Petition.
On the 17th December the case came before Mr. Justice Wrangham. The parties had agreed to compromise their disputes. Neither pursued the allegations in the Petition or the Answer. The wife obtained a decree on the adultery charged in the Supplemental Petition.
Either than or in subsequent proceedings in chambers the custody of the children was awarded as I have already stated, the husband agreeing to pay to the wife £6 per week for each of the boys whom custody was award to her: in case of Michael, who is at the State boarding school, the husband agreed to pay £6 for any week that he spent with his mother and £1.50 in respect of any week-end. Orders were made accordingly. Apparently in the document recording the agreement of maintenance the words "No maintenance for the wife" were written. However, in March, 1971 the wife took out a summons for maintenance seeking periodical payments for herself. The husband relied on the written agreement and contended that he would not have agreed to pay so much for the children if ha had known that the wife intended to week maintenance for herself. Each party then proceeded to set out all the matters of cruelty and adultery which had been raised in their pleadings and not pursued on the 17th December. Not surprisingly, the Registrar of the Cambridge District Registry adjourned the matter to the High Court, and it came before the learned President on the 17th June and three or four following days. He reserved his judgment and delivered it on the 12th July. He found as to the agreement that the parties were not ad idem: each had given a different interpretation to the word "No maintenance for the wife". He dealt at considerable length with all the complaints made by each party against the other and extending over most of the married life and concluded that the wife could not escape some...
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