Burgess v Burgess
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Year | 1996 |
| Date | 1996 |
| Court | Court of Appeal (Civil Division) |
WAITE AND MORRITT, L JJ
Financial provision – long marriage – parties having both worked throughout – substantial joint assets – approach court should adopt.
Costs – husband applying for Anton Piller order – order executed in an oppressive and insensitive manner – no evidence of any consequence obtained – Judge finding that Anton Piller application unfounded – Judge ordering husband to pay costs on indemnity basis – whether Judge correct.
The parties were married in 1969. The husband was a solicitor and the wife was a doctor. They had three adult children who were all students. Both parties had worked throughout the marriage, save that the wife had only worked part-time whilst the children were very young. Their joint earnings had been pooled and applied in the payments of household expenses and education costs. By the time of the marriage breakdown the wife was a member of a general medical practice with 11 partners, owning premises whose value was represented by a substantial figure in her partnership capital account. The husband was a member of a three partner firm from which he derived a reasonable profit, although his capital account had fallen into deficit. The wife's average annual earnings were consistently higher than those of the husband. The matrimonial home and its contents were jointly owned and were together worth some £290,000. The husband had declined to make any maintenance payments in respect of the children, so that the burden of supporting the children through university and providing a home base had fallen on the wife. Each party had some liquid capital of their own, the wife having rather more than the husband. Each enjoyed roughly comparable pension expectations.
Initially conduct was in issue. The husband had prosecuted the case vigorously, to the extent that he had sought Anton Piller orders on two occasions. The second application was successful. The husband had not made inquiries of the wife before seeking the order. At the execution of the order he had attended the premises with a video camera. No evidence of any consequence was obtained by way of the order. The husband had made allegations of marital misconduct which he had maintained up to a week prior to the hearing. They played no part in the final hearing.
It was common ground by the date of the hearing that this was a case for a "clean break" order, extinguishing all future claims by either spouse against the other or against his or her estate. At the hearing the Judge directed that the joint assets of the parties (effectively the house and its contents) should be divided equally between them. She left the income position untouched. She also made an order that the husband pay the wife's costs of the Anton Piller application on an indemnity basis, and the costs of the cross-applications for
ancillary relief on the standard basis.
The husband appealed contending (1) that the division of the assets should have been two to one in his favour; and (2) that the costs of the Anton Piller order should not have been awarded on an indemnity basis.
Held – dismissing the appeal on both grounds: (1) The powers of ss 23 to 25A of the Matrimonial Causes Act 1973 embodied a judicial discretion of the widest import. The trial Judge had observed that in a case like this, where there had been a long partnership marriage, and both parties had careers of their own, the court should, in principle seek to divide their current assets equally, and let each go their separate ways into the future. It had been argued that this amounted to a misdirection which sought to introduce a rule or precept that working spouses were entitled to share joint assets representing the fruits of their combined labours in equal shares, unless the circumstances of the case compelled the court to adopt some other proportion. It was true that, as a matter of grammatical interpretation, the Judge's remarks, read in isolation, could be construed as applying such a precept. However, the remarks had to be read in the context of the judgment as a whole. In this case, the Judge's judgment demonstrably sought to apply s 25 of the 1973 Act to the letter and produced nothing in its result which betrayed the least sign of misplaced emphasis. When the court was dealing with the joint assets of working spouses common sense and equity required that equality of interest should be adopted as the starting point. It was, however, only a starting point, and would yield to the requirements of all the circumstances of the case. The decision could not be criticized for any error of approach and it was impossible to say that it was wrong.
(2) In 1994 the husband had obtained an Anton Piller order entitling him to enter and inspect the contents of two properties, one of which was in the temporary occupation of the wife. The Judge granting the order had expressed himself persuaded on an ex parte basis that the wife had been "deceitful" and "lacking in candour" and had referred to a "slippery answer" to a questionnaire. However, it had been misleading to refer to these as "findings" given the ex parte nature of the application and the prima facie character of the evidence adduced at it. Those remarks could never have been intended to be understood as such. Furthermore, it had been insensitive on the part of the husband to have operated the video camera himself at the execution of the order. In addition the Judge was entitled to have regards to the total lack of evidence at the final hearing to support the charges of concealment or suppression of documents, and to draw the inference that the Anton Piller application had been unfounded. The costs were within the Judge's discretion and she had every reason for ordering them to be paid on an indemnity basis. If she had intended to sound a note of warning to others as to the consequences of making an ill-judged resort to Anton Piller relief in family proceedings, she had good reason for doing so.
AppealAppeal from Hale, J.
Statutory provisions referred to:Matrimonial Causes Act 1973, ss 23 to 25A.
Cases referred to in judgment:Page v Page (1981) 2 FLR 198.
W v W (Financial Provision)[1996] 3 FCR 641.
Wachtel v Wachtel [1973] Fam 72; [1973] 2 WLR 366; [1973] 1...
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Imerman v Tchenguiz and Others
...1 FCR 567. Barwell v Brooks (1784) 3 Doug KB 371. Ben Hashem v Al Shayif[2008] EWHC 2380 (Fam), [2009] 1 FLR 115. Burgess v Burgess[1997] 1 FCR 89, [1996] 2 FLR C plc v P[2007] EWCA Civ 493, [2007] 3 All ER 1034, [2008] Ch 1, [2007] 3 WLR 437. Calcraft v Guest [1898] 1 QB 759, [1895–9] All ......
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Miller v Miller (Short Marriage: Clean break)
...both contributed what they could, and the fair result was to divide the product of their joint endeavours equally. Another example is Burgess v Burgess [1996] 2 FLR 34, a long marriage between a solicitor and a doctor, which had produced three children. Each party could earn their own livi......
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Imerman v Tchenguiz and Others
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