Brett v Brett
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE PHILLIMORE |
| Judgment Date | 05 December 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J1205-2 |
| Date | 05 December 1968 |
| Court | Court of Appeal (Civil Division) |
[1968] EWCA Civ J1205-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Willmer
Lord Justick Danckwerts and
Lord Justice Phillimore
Mr MICHAEL EASTHAM. Q.C. and Mr ANTHONY HOLLINS, (instructed by Messrs. Kingsley, Napley & Co.) appeared on behalf of the Appellant (Petitioner wife).
Mr ROBIN DUNN, Q.C. and Mr DAVID HUNTER, (instructed by Messrs. Kenneth, Brown; Baker, Baker) appeared on behalf of the Respondent (Respondent husband).
We have before us an appeal and cross-appeal from an Order made by Mr. Justice Baker on the 5th July, 1968, varying a previous Order made by the senior Registrar on the 14th June, 1968, awarding to a successful wife Petitioner maintenance consisting partly of a lump sum payment and partly of annual payments, Including a nominal Order for secured maintenance. The case has raised interesting questions as to the considerations affecting the award of a lump sum payment and the proper balance to be maintained between any such lump sum payment and an award of annual payments.
The Order appealed from was made in pursuance of Section 16 (1) of the Matrimonial Causes Act, 1965, the effect of which was substantially to re-enact Section 5 (1) of the Act of 1963. The subsection reads as follows: "On granting a decree of divorce or at any time thereafter (whether before or after the decree is made absolute) the court may, if it thinks fit and subject to subsection (3) of this section, make one or more of the following orders - (a) an order requiring the husband to secure to the wife to the satisfaction of the court, such lump sum or annual sum for any term not exceeding her life as the court thinks reasonable having regard to her fortune (if any) his ability and the conduct of the parties; (b) an order requiring the husband to pay to the wife during their joint lives such monthly or weekly sum for her maintenance as the court thinks reasonable: (c) an order requiring the husband to pay to the wife such lump sum as the court thinks reasonable." It has been held by this court in Davis -v- Davis (1967 Probate, p. 185) that the word "reasonable" in paragraphs (b) and (c) is governed by the same considerations as are applicable to paragraph (a); that is to say, "reasonable" means "reasonable having regard to the wife's fortune, the husband's ability and the conduct of the parties".
The history of the marriage, since it lasted only some 5 ½ months, can be briefly stated. The marriage took place on the11th December, 1966. The parties lived together until the 1st June, 1967, when the wife left the husband. She complained that during that period of 5 ½ months' cohabitation the husband had horrified her by his revolting sexual demands and practices. She obtained leave to file a petition forthwith, notwithstanding that three years had not elapsed since the marriage, obtaining that Order on the grounds of exceptional depravity and exceptional hardship. The petition was not defended by the husband, and it resulted in a decree nisi being granted to the wife on the ground of cruelty on the 10th October, 1967. On the wife's application leave was granted to expedite the decree absolute, and the decree was in fact made absolute on the 26th October, 1967.
At the time of the marriage the wife bad just been admitted as a solicitor, and she had in fact worked for a month or so for her father, but had not taken out a practising certificate. As a result of the husband's treatment of the wife, her health was adversely affected. According to the doctors, whose Affidavits we have seen, she was reduced to a severe anxiety state which appeared likely, if and went on, to lead to a complete breakdown in her health. We are informed that even now she is not fully recovered and has not yet been able to resume work as a solicitor. In the meantime, since the breakdown of the marriage, she has lived mostly with her parents.
It is common ground that the husband is an extremely wealthy man. Exactly how wealthy he is is not really known because of his persistent failure to afford proper discovery of documents. The case proceeded before the senior Registrar and before the learned Judge on the basis that in relation to any facts which were in dispute the court was entitled to draw inferences in favour of the wife and against the husband, as was done in the case of J. -v- J. (1955 Probate, p. 215).
In this court it was at first submitted on behalf of the wife that the husband was not entitled to be hoard oh hisappeal at all, having regard to his contempt in falling to comply with the Order of the court; but when it appeared that the court might be disposed to order an adjournment, so as to enable the husband to purge his contempt and give proper discovery, Mr. Eastham, who appeared for the wife, on instructions elected to waive his objection so as to enable the court to achieve finality on this hearing. The case, therefore, proceeded before us on the sane basis as it had proceeded in the court below.
I should state that there was an Order for interim maintenance made by the learned Registrar on the 19th December, 1967, which was varied by Mr. Justice Baker on the 16th February, 1968. But I do not think that anything now turns on the provisions of this Order.
When the case came on before the learned senior Registrar on the 14th June, 1968, the state of the evidence was roughly as follows. There was a very full Affidavit oworn by the wife, the effect of which I will briefly summarise. She said that the husband was very substantially interested in a group of companies carrying on business in the textile trade. The principal company of the group became a public company at the end of 1963, when the husband was allotted a substantial block of shares. Some time between then and February, 1966, however, the husband disposed of all but a small holding. He told the wife, according to her, that he had used the proceeds in order to establish a discretionary trust in the Bahamas, a trust of which he was said to have retained control so that he could direct to whom the income should be paid. The wife then said that in January, 1967, the husband became a member of Lloyds, for which purpose he would have had to show that he was good for £75,000. She said that he told her that she was not to work during the marriage, because that would only result in his having to pay top level surtax on her earnings. She said that he also told her that, excluding what he had put into the Bahamas Trust, he still had assets in the United Kingdom worth some£500,000, She said that during the marriage they lived at a lavish rate of expenditure, enjoying a honeymoon in Mexico and the West Indies and three holidays in Switzerland.
So far as she herself was concerned, she said that she had virtually no capital assets, and that if and when she was fit to go back to work she could not expect to earn more than about £1,250 per annum, at any rate at first, having regard to her age and inexperience. She said that she wished, among other things; to purchase a flat in or near London where she could set up house for herself, and she estimated that the cost of this would be £7,500 to £10,000, plus the cost of furnishing any such flat. Finally, she sold that she was an Orthodox Jewess, and in those circumstances would not be in a position to remarry unless the husband obtained a Get from the Beth Din, which he has so far shown no signs of doing.
On the other side, there was an Affidavit of Means sworn by the husband, which was actually sworn on the eve of the application for interim maintenance. In that Affidavit he accepted the wife's statement as to his shareholding in the various companies as being substantially accurate, but he went on to say in paragraph 2 of the Affidavit: "My capital position is extremely complex, but having regard to my liabilities and the market, fluctuations the value of my various minority interests in these companies, some of which are not held beneficially but as trustee. Is difficult to assess, and it has been impossible to do so in the brief period available to me, but if the court so requires I will do my utmost to put the complete picture before it." I pause there to remark that he has never so far done any such thing. The husband said that he had settled part of his capital in setting up two discretionary trusts abroad, but he denied that he was in a position to control them or that he received any benefit from them. He alleged that he had an income somewhat in excess of £4,000 per annum for the years' ending April, 1963 and April, 1964, which hesaid were the latest figures available. He gave no other information as to the extent of his capital assets and, as I have already remarked, he has not seen fit to do so since. Neither then nor at any later time did he deny having told the wife that he had assets in the United Kingdom worth £500,000. In those circumstances, the case proceeded before the learned Registrar and the learned Judge, and has In the event proceeded before us, on the basis that the husband is an extremely wealthy man who may well be worth £500,000.
The problem which has to be solved la how much, in such circumstances, ought to be awarded to the wife by way of annual maintenance, and what, If any, lump sum payment should be ordered, bearing in mind the husband's relatively small income, but his very substantial capital assets. The learned Registrar awarded a sum of £15,000 by way of lump sum payment. He also awarded by way of annual maintenance £2,250 per annum; but as an interim measure the annual maintenance was to continue at £3,000 - the figure awarded on the interim maintenance Order - until such time as the lump sum payment was made. He also awarded £1 per annum to be secured. As to that, no question has arisen in the subsequent proceedings. On appeal to the learned...
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