Bolsom v Bolsom
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD,LORD JUSTICE DUNN,SIR SEBAG SHAW |
| Judgment Date | 03 February 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0203-1 |
| Date | 03 February 1982 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 82/0029 |
[1982] EWCA Civ J0203-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE BRENTFORD COUNTY COURT
(His Honour Judge Main, Q.C.)
Royal Courts of Justice
Lord Justice Ormrod
Lord Justice Dunn
and
Sir Sebag Shaw
82/0029
3 1982
MRS. B. KNIGHTLY (instructed by Messrs Vickers & Co., solicitors, London) appeared on behalf of the Respondent (Petitioner).
MR. KEITH L. MAITLAND DAVIES (instructed by Messrs Kenwright & Cox, solicitors, London; agents for Messrs Young & CO., solicitors, Braintree) appeared on behalf of the Appellant (Respondent).
This is an appeal by a husband from an order made by His Honour Judge Main on 18th December last year at Brentford County Court, in ancillary proceedings by the wife.
The background to the case can be given quite shortly. The parties were married in 1971. They have two children aged 6 and 5. In 1972 they bought a matrimonial home in joint names. The wife, who was a secretary by occupation, worked until some way into her first pregnancy and thereafter ran the house. In September 1976 they parted for the first time. There were two subsequent attempts at a reconciliation and the final separation took place in September 1977. At that time the wife, with the children, went to her parents. In January 1978 she was rehoused by the local authority in a council house at Bracknell. She has lived there ever since.
The marriage was dissolved by decree nisi in March 1979 which was made absolute in August 1980.
In August 1981 the matrimonial home was sold and the net proceeds of sale, after discharging all the outgoings and encumbrances, was £14,694. The husband had wanted the house to be sold for some time but the wife was not keen and perhaps dilatory. However, it created a difficult situation so far as the children are concerned, because the house was at Braintree and the wife was living at Bracknell. That made access by the husband to the children extremely difficult and it is obvious, from looking at the papers, that there has been a battle over access between these parents ever since the separation.
The husband, by training, is a computer analyst and has very recently obtained a position as a computer analyst since the matter came before the learned judge.
Originally the wife's case was that she would be content to take her half share in the matrimonial home, but recently she decided that that was not what she wanted. She made an application for either the whole of the proceeds of the sale of the home, or the greater part of it, on the basis that she would forego her claims for periodical payments altogether and would accept a nominal order at present for the maintenance of the two children.
That was against a background which was in conflict in the proceedings below, both before the registrar and before the learned judge, her point being that she had never received any support for herself or the children, her husband's case being that he had offered it and had been rejected on the basis that she preferred to continue to enjoy the security of social security paid by the Supplementary Benefits Commission rather than receive any maintenance from the husband. That issue between them was never resolved.
The fact is that nothing has been paid by the husband and the fact is, also, that his employment record is a bad one. He has been out of work a great deal since the period of separation. Of that there can be no doubt.
The case put by the wife before the learned registrar was that she wanted the major part of the proceeds of sale in order to buy the council house in which she is living. She has qualified, by the length of her occupation, to take advantage of the scheme for buying council houses.
The learned registrar made an order which did not suit her at all. He divided the proceeds of sale roughly into two halves, with minor adjustments in favour of the husband for various sums that he had spent; but broadly speaking he divided the proceeds equally.
The wife appealed to the learned judge and, at the end of what must have been quite a short hearing, the learned judge made an order which I find difficult to understand in three respects. First, he decided that she should have £11,000 out of the proceeds of sale, which he called "a minimum of £11,000", but he clearly contemplated a further hearing (and there was to be a further hearing because the access matter could not be resolved) at which the wife might make a case for more than the £11,000 out of the proceeds of sale. He said in his judgment: "If upon enquiry £11,000 is not enough there is a strong case for the wife to have more." That, I think, was said against a background that the wife was not sure how much money she would have to raise to buy the house—a figure of £15,000 was mentioned—or how much she could raise by way of mortgage. So the learned judge made his order in that form, leaving the wife with liberty to apply to increase the lump sum.
It is quite clear in the Act that a lump sum order is a once and for all order. It is quite clear there is no power in the court to vary a lump sum order once it has been made and it is very difficult to see how the judge had jurisdiction to deal with part of the proceeds of sale and then postpone the rest, if he were going to make an order at all. The only possible way of resolving the problem, with respect, would have been to adjourn the whole matter, perhaps giving an indication of what he thought was the minimum the wife should receive in order that she could proceed to make arrangements on that basis. This kind of 'interim order' for a lump sum was clearly outside the learned judge's jurisdiction.
The learned judge also made an order that the payment of £11,000 was to be paid direct to the Bracknell District Council. On the face of it, the learned judge had no jurisdiction to make that order. The wife was legally aided and the rule is quite clear that, in legally aided cases, the proceeds of litigation must be paid, in the first instance, to the legally aided party's solicitors in order that the Law Society may deal with their rights so far as costs are concerned. It may be that some arrangement had been made with the Law Society and, of course, they are fully entitled to consent to any arrangement they wish, and I say no more about that.
The learned judge then discharged the order for maintenance which the registrar had made which, so far as periodical payments were concerned, was a very high order. He had ordered the husband to pay £30 a week periodical payments to the wife and £18 a week for each of the two children. That is a...
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