Carson v Carson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD,LORD JUSTICE O'CONNOR,MR. JUSTICE SHELDON |
| Judgment Date | 25 June 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0625-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 June 1981 |
| Docket Number | 81/0266 |
[1981] EWCA Civ J0625-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(FAMILY DIVISION)
(Mr. Justice Ewbank)
Royal Courts of Justice
Lord Justice Ormrod
Lord Justice O'Connor
and
Mr. Justice Sheldon
81/0266
14915/72
MR. J.C.J. TATHAM (instructed by Messrs Whitelock & Storr, solicitors, London) appeared on behalf of the Appellant (Petitioner).
MR. M. IRVINE (instructed by Messrs Malkin Cullis & Sumption, solicitors, London) appeared on behalf of the Respondent (Respondent).
In this case we have before us two separate matters. The first is an appeal from a judgment of Mr. Justice Ewbank given on 10th February of this year, by which he held that he had no jurisdiction to entertain an application by the wife for what amounts to a second property adjustment order under section 24 of the Matrimonial Causes Act 1973. The second matter is an application for an extension of time for appealing from a much earlier order made by Mr. Justice Payne in 1975, dealing with the property problems of these spouses.
The wife is the appellant and applicant in each case. It is a sad and difficult case which we have listened to very sympathetically indeed. Briefly the facts are these. The parties were married in 1967. The parties have two girls who are now aged 12 and 10. They lived in the matrimonial home which is a maisonette at 48 Dene Gardens, Marsh Lane, Stanmore. That was accommodation which was provided by the husband's parents and the property is on a 99 year lease running from 1961 and there is no mortgage on it. The marriage broke down. The wife petitioned for divorce in 1972, asking for the usual forms of ancillary relief. That marriage was duly dissolved on 17th October 1973 and a decree absolute was made on 20th November 1974. At the time of the divorce the parties had come to an agreement about their property matters, which need only be mentioned shortly because it never became effective. The agreement was that the wife would forego any claim to the matrimonial home and the husband would provide the deposit which was required for her to purchase a new house and he would pay the mortgage. They were never able to agree on a new house, or he was never able to meet that obligation and so the agreement was never implemented.
On 21st January 1975 the wife gave notice of her intention to bring her application for ancillary relief before the court. She applied at that stage for a transfer of the maisonette at 48 Dene Gardens to her or, alternatively, a settlement of that property on such terms as the court thought right.
The matter was fully heard by Mr. Justice Payne and he made the order, in respect of which application is now made for leave to appeal out of time, on 20th May 1975. It was a difficult case. It is quite clear that the judge thought that the husband, who had been up to shortly before the hearing a market trader, had not made a full or satisfactory disclosure of his means, and the learned judge said that, in the circumstances, he had had to act to some extent on speculation to make good the defects of the disclosure. At the end of the day he made an order which provided for the house to be transferred to trustees on trust for sale, to be held by the parties jointly; the sale to be postponed on the usual terms of the Mesher v. Mesher type order (that is, until the youngest child was 18 years of age or had ceased full-time occupation) and it contained provisions for the trust coming to an end at an earlier date if the wife remarried, and so on. The precise terms of the order are:
"the respondent do convey the matrimonial home at Dene Gardens, Stanmore, Middlesex to trustees on trust for sale, the proceeds of sale to be held on trust for the Petitioner and Respondent in equal shares, the sale to be postponed until the death or remarriage of the Petitioner or until the said children and each of them attain the age of 18 years or complete full-time education or until the request or consent of the Petitioner whichever is the earliest…".
(and these words were added):
"…or until further order of the court."
It was common ground that the wife should live in the house thereafter and that the husband should vacate it.
The learned judge also made an order for periodical payments in favour of the wife in the sum of £1,250 per annum less tax, payable weekly, and at the rate of £6 a week for each of the two children, also payable weekly. There the matter rested.
At first it seems clear that the husband kept up the payments under the order more or less. There were some arrears and there was a certain amount of dissatisfaction up to that stage. Certainly there were endless difficulties between them. The matter then came back, on the wife's application to increase the amount of the order, before Mr. Registrar Guest on 10th October 1978. Once again the learned registrar had great difficulty with the husband in ascertaining what his financial position really was. It was an unsatisfactory investigation again, and it resulted in the learned registrar concluding that the husband was to be regarded as having an income of around £12,000 a year. The registrar substantially increased the order for periodical payments and under that order very large arrears accumulated. It does look as though the husband was determinedly not complying with that order. By the time the matter came before Mr. Justice Ewbank this year the arrears were agreed at something in excess of £4,000.
The wife's position was very difficult. She had had employment but she has now lost it and is drawing unemployment benefit. But the matter which really worries her is the threat that in 8 or 9 years time she will be obliged to sell her home and with half of the proceeds she is going to be in a very unfavourable position for rehousing herself. With this large amount of arrears which has accumulated, and with every prospect from her point of view of the arrears increasing as time goes by, she wanted to obtain an order which would give her security in the maisonette, 48 Dene Gardens. So in the first place, in February of this year, she applied to Mr. Justice Ewbank for what is, in effect, a second transfer of property order, transferring the maisonette to her absolutely, on the basis that she would forego thereafter her claim to periodical payments.
The argument before Mr. Justice Ewbank on that matter proceeded on the basis that, under section 24 of the Matrimonial Causes Act 1973, she was entitled in the words of sub-section (1), "On granting a decree of divorce….. or at any time thereafter….." to make application for one or other of the orders set out in that sub-section. The difficulty for her was that an order had already been made by Mr. Justice Payne in 1975, and Mr. Tatham argued that although an order had been made under paragraph (b) of that sub-section ordering a settlement of the property that did not preclude the learned judge later from making another property adjustment order, this time under paragraph (a), for a transfer of property to the wife. The learned judge held that he had no such power and, in my judgment, he was plainly right. This is a case where an attempt was being made to obtain a second property adjustment order in relation to the same capital asset and it is not necessary in this judgment to consider what the position might have been if some other capital asset was involved. In my judgment the learned judge in the court below was completely right in rejecting that application by the wife. If he had entertained it, he would clearly have been running counter to the provisions of section 31, which make it clear that the court has no power to vary a property adjustment order in any circumstances.
It is necessary to mention the words, to which I drew attention, at the conclusion of Mr. Justice Payne's order in relation to the house: "until further order of the court". At first sight it might have seemed possible that the wife would have been able to take advantage of that and invite the court to postpone the sale beyond the period when the youngest child reaches 18 or ceases full-time education, but looking at the learned judge's judgment, it is perfectly clear that that provision was put in the order to deal with the possibility of an earlier sale becoming necessary for some unforeseeable reason, and it was certainly not included with a view to a further postponement of the sale after one or other of the events which I have mentioned has taken place. As Mr. Tatham readily agreed, he could not take advantage of those words in the order.
Mr. Tatham falls back on his application for leave to appeal long out of time. He starts with this advantage, that the learned judge gave both parties leave to appeal at the conclusion of his order, and so what Mr. Tatham requires is an extension of time for appealing from that order.
In the course of his judgment, Mr. Justice Ewbank made it quite clear that he thought it was highly desirable in the interests of all parties in this case that there should be what he called a "clean break", and he thought the sensible arrangement would be now for the husband to transfer his interest in the former matrimonial home to the wife and that she, as she was prepared to do, should forego her periodical payments. But he recognised that he had no power to do it and the husband was not prepared to consent.
It is in those circumstances that we have to consider this unusual application for leave to appeal six years after the event.
Mr. Irvine has referred us to all the relevant authorities and it is only necessary briefly to state...
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