Atkinson v Atkinson

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeMR. JUSTICE WATERHOUSE,LORD JUSTICE MAY
Judgment Date11 August 1987
Judgment citation (vLex)[1987] EWCA Civ J0811-3
Date11 August 1987
Docket Number87/0874

[1987] EWCA Civ J0811-3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISON)

ON APPEAL FROM HARTLEPOOL COUNTY COURT

Royal Courts of Justice,

Before:

Lord Justice May

and

Mr. Justice Waterhouse

87/0874

CCID 443/87

Robert Thornton Atkinson
Appellant (Respondent below)
and
Angela Brockett Atkinson
Respondent (Petitioner below)

MR. ROBERT JOHNSON Q.C. and MR. M. TAYLOR (instructed by Messrs. R. Bell & Son, 6 Victoria Road, Hartlepool, Cleveland) appeared on behalf of the Appellant.

MR. P. FOCKE Q.C. (instructed by Messrs. Denison Suddards & Co. Chancery House, 143 Holgate Road, York Y02 4DF) appeared on behalf of the Respondent.

1

MR. JUSTICE WATERHOUSE
2

This appeal from a decision of His Honour Forrester-Paton Q.C. sitting as a deputy Circuit Judge at Hartlepool County Court on 28th February 1987, raises in sharp focus the question whether or not a former wife who, after the divorce, begins to cohabit with another man on a permanent basis is entitled to continuing maintenance for herself from her ex-husband.

3

In the instant case the parties were married on 25th June 1960, when the husband was 23 years old and the wife a year younger. The marriage lasted almost 22 years until they separated finally in May 1982; and there are two daughters, who are now grown up and independent of their parents. It seems that there was a progressive breakdown of the marriage from 1972 onwards and the wife's petition for divorce, relying on the husband's behaviour, was filed in January 1982. The decree nisi was pronounced on 10th May 1982 and it was made absolute on 29th June 1982.

4

The husband is a successful businessman as a director of a company of builders' merchants. The company is and was prosperous so that he was able to provide an affluent style of living for his wife and family: his income was £30,000 per annum before the separation and it has now risen to £40,000.

5

The parties were able to reach agreement on financial matters in the course of the divorce proceedings and the agreed terms were embodied in two orders of the court. The first, on 15th April 1982, provided that the husband should pay to the wife by way of maintenance pending suit £5,500 per annum during their joint lives or until further order by monthly instalments less tax at the standard rate; and that the payments were to continue as periodical payments from the date of the decree absolute. The second, on 10th May 1982, embodied the property and other capital arrangements, which were expressed to be final. In short, the husband agreed to buy a house at Nether Poppleton, near York, for the wife in her name for £26,400, paying also the costs of the purchase. The wife was to take also agreed chattels from the former matrimonial home and a motor car and she was to receive a lump sum payment of £5,000 within 28 days. In return, the wife was to transfer to the husband her interest in the matrimonial home at Hartlepool.

6

The terms of the order were duly implemented and the wife went to live at Nether Poppleton. She worked part-time and briefly at a shop in York but she had to give this up and the judge found that there is no real possibility of future employment for her because of her physical disabilities. On 8th March 1983 the periodical payments were increased, by consent, to £6,000 per annum. Then, in February 1984 she sold the house at Nether Poppleton and bought another at Dunnington. Her idea was to improve the newly acquired house and to run a bed and breakfast business there but the venture was unsuccessful and she sold it in October 1985. After clearing her debts and buying a new car, she was left with about £23,000 capital so that her position overall had worsened over a period of about 3 1/2 years following the divorce.

7

In 1982 the wife met and became friendly with a man called Austin Jeff, who is about five years older than her. He was formerly the manager of a catering equipment business but had been made redundant three years earlier. The relationship between them developed and he began to cohabit with the wife at Nether Poppleton from time to time and then at Dunnington. Instead of continuing in the catering equipment business, he had chosen to set himself up as a nurseryman, using the garden of the house at Acomb in which he and his former wife had lived and which they owned jointly. He has continued as a nurseryman at that address ever since. As for the wife in the present proceedings, she moved with Mr. Jeff to a tenanted house at Barn Moor for about eight months on the sale of her house at Dunnington but in June 1986 she helped Mr. Jeff to buy out his ex-wife's interest in the Acomb house.

8

The purchase price agreed with Mrs. Jeff was £32,000 and a further sum of £16,000 was spent on repairs and improvements. Of the total sum, £20,000 was provided by a mortgage, the wife paid £23,000 and Mr. Jeff contributed £5,000 by way of set off in relation to his financial settlement with Mrs. Jeff, which has not yet been completed. In the course of the hearing below a deed of variation, dated 8th January 1987, was executed by the wife and Mr. Jeff declaring that they are entitled to the Acomb property in the proportion of 23 to 5, that is, in proportion to their respective capital contributions. It provides also that Mr. Jeff undertakes to pay all interest on the mortgage, currently about £41.50 per week according to the judge's calculation; but it is silent as to payment of the endowment assurance premiums required as additional security for the mortgage loan. Mr. Jeff may make capital payments to the wife, if he chooses to do so, in consideration of adjustment of their shares but his only potential source of capital is a fund of £27,000 held in suspense pending a final settlement with his former wife. He and his ex-wife own also a small house that is let to a protected tenant and he expects to take this as part of the settlement.

9

The result of all this is that the wife's capital position has neither worsened nor improved significantly in consequence of the joint venture at Acomb. It is, of course, tied to that of Mr. Jeff in the property but no doubt her own stake in it will appreciate, at least in line with inflation, and she will not herself have to find the mortgage interest. It is also clear, however, that the mortgage loan must have been obtained, at least partly, on the basis of the wife's income from the husband's periodical payments.

10

The income position, as I will describe it, is more difficult to unravel. Mr. Jeff earns only a very modest income as a nurseryman and the judge's finding was that he hoped to earn £70-£75 per week in the current year. Moreover, the mortgage interest is a substantial first call upon this. At the time of the hearing below he and the wife had not yet made firm arrangements about the payment of household bills but the judge's finding, abundantly supported by the evidence, was that their expenditure in keeping up the style of life that they had chosen would probably absorb the whole of their combined income, assuming that the wife continued to receive £6,000 a year from the husband. The judge added:

"Her income being the larger she will be making the larger contribution. In that sense it may be said that Mr. Jeff will be dependent upon her, but the truth is that the arrangement, so long as it lasts, benefits both of them. Two people sharing a house and a common household can each live more cheaply than if they were living in separate establishments. I do not regard either of them as supporting the other; they are mutually dependent."

11

A further finding by the judge was that, if the wife's periodical payments were to cease or to be severely reduced, she and Mr. Jeff would be unable to keep up the mortgage payments, unless he were to find a job bringing in a sufficient income: the house would have to be sold and Mr. Jeff's business as a nurseryman would cease. Mr. Jeff's prospect of employment in catering or otherwise would be speculative until he sought other work but it was thought that he might be able to earn £8,000 a year in a managerial job of the kind that he had previously held.

12

Finally, the judge was satisfied that the decision of the wife and Mr Jeff not to marry was "financially motivated to a very large extent" despite other motives disingenuously suggested by the wife. It was clear that they intended to live together on a long term basis and the judge thought, on balance, that it was more likely than not that they would marry, if only to conform with social convention, if it did not mean the loss of £6,000 a year.

13

On the basis of these facts the husband applied for an order that the existing periodical payments order in favour of the wife should be discharged or varied on two grounds, namely (1) that the wife was cohabiting with Mr Jeff and (2) that it was no longer just that the husband should have to continue to make payments under the order. Essentially, however, both grounds were based on the same facts. The husband did not suggest that he was unable to continue making the payments for any financial reason and no other material change of circumstance was alleged. Moreover, it is not a case in which any offer of a capital payment in discharge of the husband's future maintenance obligations has been put forward. On the other hand, the judge rightly rejected a belated request on behalf of the wife that he should consider an increase in the periodical payments order because no proper evidential foundation for such a request had been laid.

14

In a very full judgment, the learned judge below cited all the relevant statutory provisions and reviewed the major recent decisions on this topic, to which I will refer later...

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