Calderbank v Calderbank
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCARMAN,LORD JUSTICE CAIRNS,SIR GORDON WILLMER |
| Judgment Date | 05 June 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0605-1 |
| Date | 05 June 1975 |
| Court | Court of Appeal (Civil Division) |
In the Matter of an Application For Ancillary Relief in the Divorce Suit
In the Matter of an Application Under Section 17 of the Married Women's Property Act 1882
[1975] EWCA Civ J0605-1
Lord Justice Cairns
Lord Justice Scarman
Sir Gordon Willmer
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The Family Division
MR. C. HORDERN (instructed by Messrs. Eland Bore Patersons, London) appeared en behalf of the Petitioner/Appellant.
MR. J. A. K. MILLAR (instructed by Messrs. Pothecary & Barratt, London) agents for Messrs. Leak, Almond & Parkinson, Manchester) appeared on behalf of the Respondent/Respondent.
LORD JUSTICE : I will ask Lord Justice Scarman to give the first judgment.
This is an appeal from an order made by Mrs. Justice Heilbron awarding to an ex-husband a lump sum of £10,000 upon his application after divorce, an Application which was made pursuant to Section 23 of the Matrimonial Causes Act 1973.
The facts are these. Mr. and Mrs. Calderbank (and I hall refer to them as husband and wife though they are now divorced and each of than has remarried) ware married to each other in December 1956. There are three children of the family, two boys aged 15 and 14 respectively, and one girl aged 12. All three children are at fee paying schools.
The husband and wife are now about years old. They lived together at a number of addresses over a period of 17 years. In January 1973 the wife left home and she has since remarried. After aha left home the wife brought divorce proceedings. The husband filed an answer in those proceedings and a decree nisi of divorce upon the ground of adultery and the fact that he found life intolerable thereafter with the wife was granted to the husband upon his answer. That decree has been made absolute.
The matter came before Mrs. Justice Heilbron in the following way. In the divorce proceedings the wife made an application under Section 17 of the Married Woman's Property Act seeking a declaration that the Matrimonial home, a house in Gloucestershire to which I shall refer, was her property beneficially. The husband made application under Sections 23 and 24 of the Act of 1973 seeking financial provision or alternatively a property adjustment orders Upon those applications Mrs. Justice Heilbron after a fall hearing and a very careful judgment made the following orders. On the 5th December of 1974 she made the declaration that the wife was seeking an her application under the Married Women's Property Act. On that day she gave a full judgment dealing with all the circumstances of the marriage but adjourned for further consideration the applications being made by the husband. On the 13th January 1975 she made the lump earn order in favour of the husband which is now challenged in this Court.
In the course of her judgment Mrs. Justice Heilbron went through the whole of the marriage history so far as it concerned its property and financial aspects,
blocks but the finance fee the business was provided from the wife and the wife's father. As the years went by the business grew, staff was taken on and it reached its climax as a business in about 1972. There after the business has declined and is now showing a loss.
When the wife's mother died in 1964 she inherited about £30,000, and when her father died in 1969 she inherited another £50,000. The wife has shown herself throughout the family life alive to her responsibilities towards the family. It is to be noted that in June of 1970 she height a house at Alderley Edge and made it available for the occupation of the husband's mother. With the access of capital which came to her upon the death of her two parents, the wife and husband thought the time was opportune to acquire a very much larger and more luxurious house than had been the matrimonial home in the past. Consequently in 1970 or thereabouts Rudford House, Gloucestershire, was purchased with the wife's moneys for some £16,500. Although the house was put into the name of the husband for fiscal reasons it was purchased and its outgoings met by the wife's funds. The husband made no financial contribution whatever towards the purchase of Rudford House which upon its purchase became the matrimonial home and in which the husband has lived ever since it was purchased and in which the wife also lived until she left home in January 1973.
I have mentioned that the husband gave up his job when they decided to go into the kennels business. In fact during the currency of the carriage the husband never thereafter did another job, though as I have mentioned he has obtained one since the breakdown of the marriage. The husband met his current expense out of a joint account maintained by himself and his wife, that account kept in funds to some extent (I suppose) from the profits of the kennels business, and, if the extent of those profits were not sufficient, by funds made available by the wife.
When they moved from the farm which had the kennels to the house in Gloucestershire, they took much less part in the day to cay management of the kennel business. Indeed it would appear that a manager was installed and they contented themselves with supervision at a distance and with regular weekly visits to the kennels. The husband did nothing other than live at home and pay those weekly visits.
Thus immediately before the breakdown of the marriage the situation was as follows. Husband and wife were living at their large establishment in Gloucestershire financed by the wife's money. Their children were being educated at fee paying schools financed by the wife. The husband had no job other than such Interest as he took in the kennel business which after 1972 began to ail. The wife was busy with her family life and the management of her property and the kennels, and had such income as was derived from her investments.
I should add that the husband is not to be regarded as a lay about or as someone who has hung up his hat in the wife's house and made a decision there to live. The Judge did not take that view of the husband at all. He had suffered early in life from poliomyelitis. One of the consequences of the disease, from which he made a remarkable recovery, was that he was physically weakened to some extent. The evidence indicates that he suffered from time to time from breathlessness and, if he was not careful, was subject to bronchitis.
So for 17 years they lived, baaing their family finances upon the funds belonging to the wife. The learned Judge looked carefully at all natters to which I have referred and appreciated the degree to which the husband during the married life was financially dependent upon his wife and also the degree to which the wife admirably fulfilled her financial responsibilities to the family. The learned Judge also noted that since the breakdown of the marriage both the husband and the wife had acquired a greater source of income than they had had prior to the breakdown. The husband had got a job worth about £4,000 a year and married a lady who herself was earning. The wife had her capital resources and had married a man who had an income, though he had heavy commitments. It is plain from a reading of the judgment that the Judge carefully directed herself along the lines set cut in Section 25 of the Matrimonial Causes Act 1973, and she bore in mind all the matters to which I have referred. Having done that, she expressed herself in these terms. She said she did not think it could seriously be contended that to provisions of the new legislation do not apply to husbands as well as to wives. She appreciated that the factors to be taken into consideration under Section 25 were factors relating to both parties, but also realised that decision must be affected according to whether the party seeking the transfer of property orlump sum was the husband or the wife; cud aha bore in mind, and said so expressly, "that the financial needs, obligations and responsibilities which the wife has for the family in the foreseeable future are extensive, the husbard's are negligible'.
Mr. Horrdern, for the wife, attacks the award of a lump sum of £10,000 to the husband upon the following grounds. He accepts that the Act of 1973 confers power upon the Court to order a woman to make financial provision, be it by periodic payment or lump son, for her ex-husband, but he submits that upon a proper construction of the guideline Section (that is Section 2) of the Act of 1973) it would not be proper for the Court, save in exceptional circumstances, to cake an order upon a woman for the financial support of her ex-husband. His argument is in origin a historical one although it develops into an argument upon the construction of the Section. Historically he puts it in this way. He says, rightly, that at common law a husband was liable to maintain his wife but a wife was never liable to maintain her husband. He says that this common law still remains the basis of the financial responsibilities of a husband and wife, and he points to Section 27 of the Act of 1973 as indicating that the common law basis still remains so long as the parties are married. That section, which is a re-enactment of previous sections, provides that either party to a marriage may apply to the Court for an order on the ground that the other party, if he be the husband, has wilfully neglected to provide reasonable maintenance for the wife, or, if she be the wife, has wilfully neglected to provide, or to make a proper contribution towards reasonable maintenance for a husband whose earning capacity is for one reason or another impaired. In short, the section...
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