Brooks v Brooks

JurisdictionEngland & Wales
CourtFamily Division
Judgment Date1993


Post-nuptial settlement – whether pension fund can come within the definition.

Pension fund – beneficiary's rights capable of being varied as post-nuptial settlement.

During the first year of this marriage the husband had formed a limited company of which he became majority shareholder; the wife was company secretary. The marriage, a second marriage for both husband and wife, lasted some 12 years, the parties lived on a fairly lavish scale.

In 1989 the husband left the wife. During the same year the company stopped trading. The wife filed a petition on the ground of the husband's adultery, and an application for property adjustment and financial relief. In 1992 she also applied under s 24(1)(c) Matrimonial Causes Act 1973 for the company pension fund to be declared a post-nuptial settlement and for it to be varied in her favour.

Rule 1(e) of the company pension fund allowed the husband at the date of his retirement "to surrender a portion of the pension to which (he) would otherwise be entitled in order to provide a ... pension for any one or more of your spouse or any other person whom the employer may consider to be in any way financially dependent on you ..." There was also provision for the commutation of part of the pension to a lump sum for the husband.

By the time the case came before the district judge at the Principal Family Registry the husband had stopped paying maintenance to the wife and paying the mortgage on the matrimonial home. He stated that he was in poor health and he relied on income support.

The district judge decided that a pension fund taken out for the benefit of the husband was a post-nuptial settlement, and varied the fund to provide the wife with an immediate annuity and a pension to be paid from the time of the husband's death. She also made orders for a lump sum and for periodic payments.

The husband appealed against all orders.

Held – Section 24(1)(c) of the Matrimonial Causes Act 1973 gave the court power to vary for the benefit of the parties or either of them any ante-nuptial or post-nuptial settlement made on the parties to the marriage. For this pension fund to come within the definition of a "post-nuptial settlement" there must be (i) a nuptial element in the fund and (ii) a


As to (i) the pension fund specifically provided for a pension for the spouse of the husband. At all material times that spouse was the wife. Therefore there was a nuptial element in the pension fund.

As to (ii), referring to Bosworthick and Lort-Williams (infra): where one spouse had made provision for the other in the nature of periodical payments that amounted to a "settlement" and did not cease to be a settlement because it may also be applicable for the benefit of a wife by a subsequent marriage.

Therefore, this pension fund fell within the definition of post-nuptial settlement and was amendable by the court.

Section 25 of the Matrimonial Causes Act defined the circumstances to be taken into account in making an order.

The lump sum order was reduced. The remainder of appeal was dismissed.

Per curiam: The court was satisfied that the Inland Revenue would accept the variation proposed by the district judge or any similar scheme.


Appeal from Principal Registry, Family Division.

Statutory provisions referred to:

Matrimonial Causes Act 1973, ss 24(1)(c), 25.

Income and Corporation Taxes Act 1988, ss 590, 603.

Cases referred to in judgment:

Bosworthick v Bosworthick [1927] P 64.

Lort-Williams v Lort-Williams [1951] P 395; [1951] 2 All ER 241.

Additional cases cited:

Aitken v Christy Hunt plc [1991] Pensions Law Reports 1.

Bown v Bown and Weston [1949] P 91; [1948] 2 All ER 778.

Re Cairns (1982) 4 FLR 225.

Callwell v Callwell and Kennedy (1860) 3 Sw & Tr 259.

E v E (Financial Provision) [1989] FCR 591.

Gulbenkian v Gulbenkian [1927] P 237.

Jump v Jump (1883) 8 PD 159.

Leadbetter v Leadbetter [1985] 2 FLR 789.

M v M [1987] 2 FLR 1.

Melville v Melville and Woodward [1930] P 159.

Micklethwaite v Micklethwaite (1859) 4 CBNS 790.

Milne v Milne (1981) 2 FLR 286.

Parrington v Parrington [1951] 2 All ER 916.

Richardson v Richardson (1979) Fam Law 86.

Worsley v Worsley and Wignall (1869) LR 1 P & D 648.

John Elvidge for the husband.

Martin Pointer for the wife.


This is an appeal from an order of District Judge Plumstead made in the Divorce Registry on 23 October 1992. The appeal is out of time. No point is taken on that. I give leave to appeal out of time. The district judge decided that a pension fund taken out for the benefit of the husband was a post-nuptial settlement and she varied the fund to provide the wife with an immediate annuity and a pension to be paid from the time of the husband's death. She also made orders for a lump sum and for periodic payments. The husband appeals against all the orders.

The circumstances are that the husband is now 63, the wife is 54. They were both married previously: they both had children by their first spouses. The wife used to work as a sales representative for Campbell Soup. The husband was a builder and property developer. The wife left her first husband in 1974. In 1975 she received a share of her former matrimonial home and bought a house at 35 Agraria Road, Guildford as her home. This was a three-bedroomed semi-detached house, which cost just under £11,000

In 1975 the husband did some building work for the wife. A relationship between them built up and in due course he moved in to live in the house at Agraria Road. By that time he had left his first wife and at about the time he moved into Agraria Road he was divorced from his first wife. At his divorce an order for periodic payments was made that he should pay his first wife £2,500 a year. That he did throughout the marriage to his second wife.

After they started living together the husband suggested that the wife should give up her job with Campbell Soup and she did so. She has not worked except in his firm since then.

In July 1976 the husband bought a house which was to become their matrimonial home, 8 Sunning Avenue, Sunningdale. This cost £38,000. A few months later, at the husband's instigation, the wife sold Agraria Road. She says that she used the proceeds of sale to buy furniture and equipment for 8 Sunning Avenue, for provision for her children and for buying a car.

In November 1976 the wife was divorced from her first husband and both being free to marry, on 26 January 1977 the husband and wife were married. The husband was then 48 and the wife was then 38. It will be observed that by the time of the marriage the wife had given up her paid employment and has also given up her home, and both these things occurred during the time of living with the husband and at his instigation or encouragement.

In 1977, the year of the marriage, the husband's firm was incorporated as DE Brooks Limited. The husband was a majority shareholder. His other director was a Mr Jones. The wife became secretary to the...

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3 cases
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