Alicea Helen Birch v James William Hamilton Birch
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice Kitchin,Lord Justice Gross |
| Judgment Date | 31 July 2015 |
| Neutral Citation | [2015] EWCA Civ 833 |
| Date | 31 July 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B6/2014/1760 |
[2015] EWCA Civ 833
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM His Honour Judge Waller CBE
The Family Court at Watford
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
Lord Justice Kitchin
and
Lord Justice McCombe
Case No: B6/2014/1760
Stephen Hockman QC and Jane Campbell (instructed by Alison Fielden & Co.) for the Appellant
Paul Infield and Julia Shillingford (instructed through the Bar Pro Bono Unit) for the Respondent
Hearing date: 23 June 2015
(A) Introduction
This is an appeal by Mrs. Alicea Birch ("the Wife") from the order of 12 May 2014 of His Honour Judge Waller CBE, made in the Family Court at Watford, whereby he dismissed the Wife's appeal from the order of District Judge Chesterfield, made on the hearing of a preliminary issue in relation to the Wife's application for a variation of the terms of an undertaking given by her to the court in a financial order ("the Order") made by consent in divorce proceedings on 26 July 2010. The divorce proceedings were between the Wife and her (now) former husband, the Respondent ("the Husband"). The decree absolute of divorce was made on 14 October 2010.
The Order, after defining certain terms to be used in it, recited agreement between the parties as to future ownership of certain personal belongings and the contents of the former matrimonial home. There followed undertakings by each as to the discharge by one or other of them of identified debts. It also recited (somewhat in contradiction of the later provision in clause 1 of the curial part of the order) the agreement by the Husband that,
"…he has no legal or beneficial interest in [the former matrimonial home]".
The order then recorded, in paragraph 4, the following undertakings to the court by the wife:
" … 4.3 to discharge all mortgage interest payments due in respect of the mortgage in favour of Cheltenham & Gloucester plc secured upon the former matrimonial home and to use her best endeavours to obtain the consent of the mortgagee to the release of James William Hamilton Birch from any liability in respect of the mortgage, but in any event to indemnify James William Hamilton Birch in respect of the above;
4.4 in any event to ensure that if the said James William Hamilton Birch is not released from the mortgage by 30 September 2012 she will secure the release of James William Hamilton Birch on 30.9.12 by placing the former matrimonial home upon the market for sale to redeem the mortgage with Cheltenham & Gloucester plc at a price to be agreed between the parties and in default of agreement to be valued by a valuer appointed by the Royal Institute of chartered Surveyors."
The curial part of the Order then provided as follows:
"1. The Respondent shall transfer to the Petitioner within 28 days from the date of Decree Absolute herein all his legal estate and beneficial interest with full title guarantee in the freehold property Formosa, Chapel Lane, Naphill, Buckinghamshire registered at the Land Registry under Title Number BN331259 [i.e. the former matrimonial home] subject to the mortgage secured thereon in favour of Cheltenham & Gloucester plc. …
4. Upon completion of the transfer of Formosa, Chapel Lane, Naphill, Buckinghamshire provided by Clause 1 of this Order and compliance by the Petitioner and the Respondent with their respective undertakings to the Court provided for by recitals 4 and 5 of this Order and upon the making of a final decree herein, the Husband's and the Wife's claims for financial provision, pension sharing and property adjustment orders do stand dismissed and neither the Husband nor the Wife shall be entitled to make any further application in relation to their marriage under the Matrimonial Causes Act 1973 s23(1)(a) or (b) or to make an application to the court, on the death of the other, for provision out of his or her estate. …
6. Liberty to apply as to timing and implementation."
By "Notice of Intention to Proceed with an Application for a Financial Order", issued on 18 November 2011, the Wife gave notice of her intention to apply to vary the undertakings given by her in the Order in the following terms:
" Application under Section 31 Matrimonial Causes Act 1973 to Vary the Undertaking given by the Applicant to secure the release of the Respondent from the mortgage on the former matrimonial home by 30 th September 2012 or for the property to be sold in default. The Undertaking to be varied so that the Respondent to be released from the mortgage or for the property to be sold in default when the youngest child attains the age of 18 years or either child completes full time education."
Although we do not have the previous court orders before us, it appears that directions were given for the determination of whether the court had any jurisdiction to consider such an application as proposed by the Wife. It was that issue which came before District Judge Chesterfield on 15 January 2014. The District Judge found that the court did not have jurisdiction and dismissed the application. Permission to appeal was refused. The Wife sought permission to appeal against the District Judge's order. The application came before Judge Waller on 12 May 2014. He granted permission to appeal but dismissed the appeal. Permission to bring a second appeal to this court, against Judge Waller's order, on the issue of jurisdiction only, was granted by Lord Justice Treacy on 22 October 2014.
The only remaining background facts of significance for the present appeal are (1) that the parties have two children a daughter (born on 16 February 2000, now 15) and a son (born on 15 August 2001, now 13); (2) that the wife has been unable to procure the husband's release from his obligations under the mortgage; and (3) that the transfer of the former home to the Wife has not yet been effected.
(B) The statutory provisions: Matrimonial Causes Act 1973
The relevant statutory provisions are to be found in sections, 21(2), 24(1)(a), 24A, 25, 25A(1) and 31(2)(f) and (7) of the Matrimonial Causes Act 1973. The relevant parts of those sections are these:
" 21. Financial provision and property adjustment orders.
… (2) The property adjustment orders for the purposes of this Act are the orders dealing with property rights available (subject to the provisions of this Act) under section 24 below for the purpose of adjusting the financial position of the parties to a marriage and any children of the family on or after the grant of a decree of divorce, nullity of marriage or judicial separation, that is to say-
(a) any order under subsection (1)(a) of that section for a transfer of property; …"
" 24. Property adjustment orders in connections with divorce proceedings etc.
"(1) On granting a decree of divorce,…or at any time thereafter (whether in the case of a decree of divorce…before or after the decree is made absolute), the court may make any one or more of the following orders, that is to say –
(a) an order that a party to the marriage shall transfer to the other party… such property as may be…specified, being property to which the first-mentioned party is entitled, either in possession or in reversion…
(c) an order varying for the benefit of the parties to the marriage and of the children of the family or either or any of them any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the parties to the marriage;
(d) an order extinguishing or reducing the interest of either of the parties to the marriage under any such settlement."
(Subsection (1)(c) and (d) are included, not because they are of direct relevance to the present case but because they were important to the decision of this court in Omielan v Omielan [1996] 2 FLR 306 which has played an important part in the arguments both here and in the court below.)
" 24A Orders for sale of property
"(1) Where the court makes an order under section…24 of this Act a secured periodical payments order, an order for the payment of a lump sum or a property adjustment order, then, on making the order or at any time thereafter, the court may make a further order for the sale of such property as may be specified in the order, being property in which or in the proceeds of sale of which either or both of the parties to the marriage has or have a beneficial interest, either in possession or in reversion…"
(3) Where an order is made under subsection (1) above on or after the grant of a decree of divorce…the order shall not take effect unless the decree has been made absolute.
(4) Where an order is made under subsection (1) above, the court may direct that the order or, or such provision thereof as the court may specify shall not take effect until the occurrence of an event specified by the court or the expiration of a period so specified…"
" 25. Matters to which court is to have regard in deciding how to exercise its powers under ss 24 and 24A"
"(1) It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24, 24A, 24B and 24E above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
(2) As regards the exercise of the powers of the court under section 23(1)(a), (b) or ( c), 24, 24A, 24B and 24E above in relation to a party to the marriage, the court shall in particular have regard to the following matters –
(a) the income, earning capacity, property and other...
To continue reading
Request your trial
-
Birch v Birch
...53 before Lady Hale, Deputy President Lord Kerr Lord Wilson Lord Carnwath Lord Hughes THE SUPREME COURT Trinity Term On appeal from: [2015] EWCA Civ 833 Appellant Stephen Hockman Jane Campbell (Instructed by Alison Fielden & Co) Respondent John Wilson QC Paul Infield Julia Shillingford (Ins......
-
Brendan McEneaney & Others v Ulster Bank Ireland Ltd and Another
...diligence have discovered those facts which, if pleaded, would constitute a valid claim: see Arcadia Brands Group Ltd v Visa Inc, [2015] EWCA Civ 833 at para 30. Once the ingredients of a cause of action are known or could with reasonable diligence have been discovered, it is irrelevant th......
-
Dario Ovidio Schettini v Nicola Silvestri
... ... 10 In Birch v Birch [2017] UKSC 53 , [2017] 1 WLR 2959 ... a decision of the Ontario Court of Appeal, James v Canadian Trust of the Church of Latter Day ... ...
-
Michael Norcross and Others v The Estate of Christos Georgallides deceased
...are those facts which, if pleaded, would be sufficient to constitute a valid claim". This was endorsed by the Court of Appeal, [2015] EWCA Civ 833 at para 30, where the history of and authority for the "statement of case" test is set out in detail. Here, although SHBL alleges that Mr Georga......
-
Supreme Court Clarifies Deliberate Concealment Gateway For Postponing Limitation
...had been resolved. It also endorsed and applied the requirement found by the High Court in Arcadia Group Brands Ltd v Visa Inc [2015] EWCA Civ 833 that the fact must be one "without which the cause of action is In closing, Lord Reed summarised the Supreme Court's interpretation of the neces......