B v B (Financial Provision)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD |
| Judgment Date | 11 February 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0211-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 82/0036 |
| Date | 11 February 1982 |
[1982] EWCA Civ J0211-1
Lord Justice Ormrod
Lord Justice Eveleigh
and
Lord Justice Dunn
82/0036
80 D 545 and 81 D 672
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mrs. Justice Booth)
Royal Courts of Justice
MR. JOSEPH JACKSON, Q.C. and MR. NICHOLAS P. R. WALL (instructed by Messrs Gregory Rowcliffe & Co., solicitors, London; agents for Messrs Dickenson Dees, solicitors, Newcastle upon Tyne) appeared for the Appellant (Petitioner).
MR. ROBERT L. JOHNSON, Q.C. and MR. MICHAEL HOROWITZ (instructed by Messrs Speechley Bircham, solicitors, London) appeared on behalf of the Respondent (Respondent).
The judgment I am about to read is the judgment of the Court, but Lord Justice Eveleigh, who cannot be here this morning, has read and approved the draft.
This is an appeal by the wife, by leave of the judge, from an order made by Mrs. Justice Booth on 22nd October 1981, by which she ordered the wife to pay a lump sum of £50,000 to the husband in full and final settlement of his claims for financial relief. The learned judge decided that, in the exceptional circumstances of this case, the wife's cross application for periodical payments should not be dismissed but should remain alive, in case in the future it became necessary for her to rely upon it.
The facts, which are most unusual, are fully set out in the judge's admirably lucid judgment, which has enabled this Court to understand the issues much more easily and quickly than might have been the case. We have also been greatly helped by the summaries put in by counsel. It is only necessary to give a brief outline of the salient facts.
The marriage took place in December 1959. There are two children, born in 1961 and 1963, so both are now of full age. The matrimonial home, throughout the marriage, was in Newcastle, although the husband was away from home a great deal in the latter half of the marriage. The break-down occurred in February 1979, and the marriage was dissolved by decree nisi on 4th June 1981, on the basis of two years separation by consent. There had been an earlier petition by the wife dated 21st March 1980, relying on section 1(2)(b) which was not proceeded with for reasons which are not relevant to this appeal.
The wife is a member of a wealthy family and was aged 21 at the time of the marriage. The husband was then aged 27. He was a qualified pharmacist and was a lecturer at a polytechnic. At that time the wife was a beneficiary under a settlement made by her father ("the 1951 settlement").
Soon after the marriage in 1960, a small private pharmaceutical business was acquired by the wife's family, and the husband gave up his appointment as a lecturer to become managing director of this company, the shares in which were held equally by husband and wife. For reasons which need not be examined, although they were in issue, the husband left the business in 1966 and joined the staff of a large well-known public company. He has made a success of this career and has now reached a senior position in the company. He will retire in ten years time at 60 years of age. His job took him away from Newcastle but the wife, for reasons which can readily be understood, did not wish to leave Newcastle, so she and the children continued to live in the matrimonial home. The husband, for many years, returned home to the family every week-end. The wife has suffered from multiple sclerosis since her student days, a progressive disease which is now disabling her to a considerable extent. The medical evidence indicates that the time is not far off when she will be unable to manage on her own, and will require the support and assistance of a housekeeper, and later, possibly a nurse.
After the husband left, the shares in the pharmaceutical company were settled on the children by husband and wife. This settlement, together with other family settlements, provides more than amply for the two children, who will have substantial incomes for the rest of their lives. The total capital settled on them is of the order of £250,000 each.
In 1965 the wife executed a settlement ("the 1965 settlement") upon herself, with remainder to the children, from which she derives the major part of her present income.
Arrangements were made by the wife's trustees to provide a house for the use of the husband in Nottingham where he worked. One house was bought in 1967, and sold when he was moved to another area. Later on he was moved back to Nottingham and another house was bought, namely, 9 Clumber Crescent North.
Since the breakdown of the marriage the position of both parties has changed. The wife has sold the former matrimonial home, and has bought a smaller house. The husband has been promoted again and has had to move to the Dundee area. He has contracted to buy a house there for £75,000, which he considers is appropriate to his present position in the company.
The financial position of each party was not seriously disputed. The husband, at the age of 50 years, has no capital assets of any kind, but he has a good salary, which amounts at present with his annual bonus to £21,000 gross. Part of the bonus is now given in the form of shares in the company. His prospects of further promotion are good and his salary is likely to increase, both with inflation and promotion. He will have a good pension at the age of 60 years, but no lump sum, unless he chooses to commute part of his pension, which, at present, is unlikely.
The wife has a life interest in the two settlements already referred to. She has a power of appointment under both settlements in favour of a surviving husband. Under the 1951 settlement the trustees have power, at their absolute discretion, to vest the whole or any part of the trust capital in the wife absolutely. Under the 1965 settlement, of which the wife herself is the settlor, she may withdraw all or any part or parts of the trust fund with the consent of the trustees not being less than two in number. On the death of the wife and, subject to any appointment she may have made, the capital of each of these trust funds goes to the two children on attaining the age of 30 years. These settlements are quite independent of the settlement of the shares in the pharmaceutical company on the two children.
The capital value of these two trust funds was found by the learned judge to be £78,000 and £212,000 respectively. The wife's income from these funds was taken at £17,837, a rate of return of 6.2%. This relatively low yield was explained by the policy of the trustees, which is to keep the wife's income below the level which attracts income tax at 60%, and to permit capital appreciation in order to protect the funds from erosion by inflation.
In addition, the wife has substantial free assets. At present these consist of her present home, which is valued at £60,000 free of mortgage, jewellery insured for £17,000, and a stamp collection, the value of which is thought to lie between £5,000 and £15,000. Some idea of its worth can be gathered from a statement in the wife's affidavit that ten of the stamps are quoted in the Stanley Gibbons catalogue at prices totalling £15,000. In addition she is holding the sum of £28,300, the net proceeds of sale of 9 Clumber Crescent, which has now been sold. She had had other money arising from the sale of the former matrimonial home for which she received £102,500, out of which she bought her present house for £57,000. The balance has been largely...
To continue reading
Request your trial
-
Tl v Ml and Others (Ancillary Relief: Claim Against Assets of Extended Family)
...[2001] 1 FLR 377. Abacus (CI) Ltd v Al-Sabah, Re Esteem Settlement [2004] JRC 92, [2004] WTLR 1, Jersey RC. B v B (financial provision) (1982) 3 FLR 298, CA. Barr’s Settlement Trusts, Re, Abacus Trust Co (Isle of Man) v Barr [2003] EWHC 114 (Ch), [2003] 1 All ER 763, [2003] Ch 409, [2003] 2......
- Villiers v Villiers
-
X v X (Y and Z Intervening)
...Howard v Howard [1945] P 1 at pp 4, 5–6 and 7, J-PC v J-AF [1955] P 215 at pp 230–231 and 247–248, B v B (Financial Provision) (1982) 3 FLR 298 at pp 303C-G and 304F-305B and Browne v Browne [1989] 1 FLR 291 at pp 294D-H and 295D. I do not, however, think that I need refer to any of them, f......
-
SR v CR (Ancillary relief: Family trusts)
...being worth at least $23m; Charman v Charman [2006] 1 WLR 1053 considered. Cases referred to in judgmentB v B (financial provision) (1982) 3 FLR 298, Browne v Browne[1989] 1 FCR 275, [1989] 1 FLR 291, CA. Charman v Charman[2005] EWCA Civ 1606, [2006] 1 WLR 1053, [2006] 2 FLR 422. Charman v ......