Barrett v Barrett
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS,SIR EDWARD EVELEIGH |
| Judgment Date | 20 June 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0620-2 |
| Date | 20 June 1988 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0522 |
[1988] EWCA Civ J0620-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WORCESTER COUNTY COURT
(His Honour Judge Ward)
Royal Courts of Justice
Lord Justice Butler-Sloss
and
Sir Edward Eveleigh
88/0522
MR. G. HARRISON-HALL (instructed by Messrs Harrison Clark, Worcester) appeared on behalf of the Respondent/Petitioner.
MR. M. BLOUNT (instructed by Messrs Ccffin, Mew & Co., Hants.) appeared on behalf of the Appellant/Respondent.
This is an appeal from the judgment of His Honour Judge Roy Ward Q.C. on 30th July 1987 whereby he was hearing an appeal from a deputy Registrar on 7th May of the same year. It related to a formerly married couple and the application by a wife for periodical payments.
The parties were married on 9th May 1964. Three children were born to the marriage, Deborah born in 1965, Lisa in 1967 and Julie was born on 10th March 1971 and was treated by the learned judge, as indeed by the deputy registrar as being still educated.
The parties separated in May 1979 after some fifteen years of marriage. The wife is now 44 and the husband 45. After the separation the wife went to the Malvern justices where she obtained an order of maintenance for herself and the children, the order for herself being £15 a week. On 1st December 1981, she having moved by that time to Fareham, she obtained an order in the Fareham Magistrates Domestic Court for £18 a week by way of variation of the original order. She has for some years had part-time employment. She did not have full-time employment for the practical reason that she was caring for the youngest child of the family. The learned judge found that her part-time employment was worth some £25 to £28 a week. She had family allowance and single parent allowance.
The husband has a reasonable income, employed as a manager for a large organisation, from which he has pension rights. In 1987 the husband took divorce proceedings under section 1(2) (e) of the 1973 Act, that is to say five years separation, and the wife made an application under section 10 of the same Act in respect of having her financial arrangements considered before the decree was made absolute. She also applied under section 23 of the Matrimonial Causes Act 1973 for periodical payments. The parties, when they separated in 1979, had arranged all the financial matters between them, including maintenance at that time in the magistrates court. The matrimonial home was sold and the wife received some £20,000 out of the matrimonial home in order to house herself and the family. She thereby received by far the bulk of the family assets, the husband only keeping for himself some £6,000 out of which he paid the costs of purchase and removal expenses of the wife. This left him with a small sum, he however having an income, a pension and the opportunity to continue to improve his situation. There was no doubt, however, that there was a disparity in the capital disposition which was recognised in the rather smaller amount of money that was paid to the wife thereafter. No doubt the fact of the pension may have been in peoples' minds, bearing in mind that the husband would eventually be able to obtain a divorce.
On 7th May 1987 the deputy registrar carefully considered all the matters that were put before him and came to the conclusion that the wife should receive £25 a week (we need not be concerned with Julie; who does not form part of this appeal) and he made that order for joint lives until remarriage or until further order.
That part of the order was appealed to the learned judge and on 30th July his order was varied in so far as it related to periodical payments and an order made that the petitioner do pay to the respondent from the decree absolute periodical payments for herself during their joint lives for a period of four years or until such date as she remarry or further order at the amount of £25 a week. There is no dispute in this court about the amount; the only point in issue is, should this order for periodical payments be terminated after four years, or should it run in its ordinary course for joint lives until remarriage or until further order.
The learned judge in his ex-tempore judgment dealt with the position of the parties, the financial dispositions of the parties at the time of separation in 1979 and then looked at the legislation upon which periodical payments orders are based. He looked first at the substituted section 25A. He then having dealt with that said:
"Clearly the view of Parliament as that expounded that courts should approach the matter on the basis that dependency should be terminated unless there is a reason why it should not be. It seems to me that the purpose of amending the section was to direct a court to take the opposite approach to that which I judged to be appropriate before that Act. The tenor of the section is in favour of termination subject always to ensuring that no undue hardship is caused to the person in whose favour the award is made."
He then says towards the bottom of page 7, having dealt with the probability of the wife finding employment, with which I will deal in a moment:
"It seems to me in those circumstances: where one has someone capable of employment and earning who is willing and able that I can only comply with Section 25A by putting a term on continuing periodical payments."
He then made an order that it should be for four years.
That judgment of the learned judge is criticised by the appellant wife who in her notice of appeal sets out three main grounds. I hope Mr. Blount, in his admirable submissions to us, will not be offended if I say that grounds one and two seem to me to be more impressive than ground three. Ground one says that "the learned judge misdirected himself in law and that having found as a fact the respondent had failed to find full-time employment he failed properly or at all to direct himself to consider whether the respondent would be able to adjust without undue hardship on the termination of her financial dependence on the Petitioner", and Ground two: "The learned Judge misdirected himself in law in that he directed himself that there was a burden on the Respondent to show that undue hardship would be caused on termination of her financial dependence on the Petitioner."
Some time has been spent this morning on the consideration as to what was the purpose of the 1984 amendments to the 1983 legislation. It is helpful perhaps to set out what was said by the learned author of Rayden, 15th Edition:
"The law now encourages spouses to avoid bitterness after family breakdown and to settle their money and property problems. An object of the modern law is to encourage each to put the past behind them and to begin a new life which is not over-shadowed by the relationship which has broken down. It would be inconsistent with this principle if the court could not make as between spouses a genuinly final order unless it is prepared to dismiss the application."
And in Suter v. Suter and Jones [1987] 2 A.E.R. 336 it was specifically laid down that there is a mandatory duty imposed on every court to apply itself to the questions set out in section 25A (2) whenever it decides to make a periodical payments...
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