Chamberlain v Chamberlain

JurisdictionEngland & Wales
JudgeLORD JUSTICE DAVIES,LORD JUSTICE ORR
Judgment Date10 October 1973
Judgment citation (vLex)[1973] EWCA Civ J1010-3
CourtCourt of Appeal (Civil Division)
Date10 October 1973

[1973] EWCA Civ J1010-3

In The Supreme Court of Judicature

The Court of Appeal

(Civil Division)

(From: MR. Justice Latey - London)

(Revised)

Before:

Lord Justice Davies

Lord Justice Orr and

Lord Justice Scarman

Between:
Phyllis Ethel Chamberlain
Petitioner
- and -
Ronald Chamberlain
Respondent

Mr. NEIL BUTTER (instructed by Messrs. Bowles & Co., Epsom, Surrey) appeared on behalf of the Appellant (Husband, Respondent).

Mr. PIERS HERBERT (instructed by Messrs. George Carter & Co., Kingston-upon-Thames) appeared on behalf of the Respondent (Wife, Petitioner).

1

LORD JUSTICES DAVIES: Lord Justice Scarman will give the first judgment.

2

LOHD JUSTICE SCARMAN: This is a difficult ease for the parties and an intricate one for the court, but fortunately there is a measure of property and income available for this family which should enable them, though separated, to meet the necessities of family life.

3

The facts are these. The case comes before this Court on Mr. Ronald Chamberlain's appeal against an order of Mr. Justice Latey made on the 9th July, 1973, whereby he varied an order made by Mr. Registrar Bayne Powell on the 22nd March. Although Mr. and Mrs. Chamberlain are now divorced, it is convenient for the purposes of judgment if I refer to them throughout as husband and wife.

4

The history of the matter is this. Mr. and Mrs. Chamberlain were married in July, 1954. They have three children, the eldest 15, the next 12 and the youngest 8 years old. Those children have been living with their mother since the final parting of husband and wife, and are still living with their mother, in a house 81 Somerset Avenue, Chessington, which was the matrimonial home immediately before the husband left home. We have been informed that husband and wife are now aged each of them about 41.

5

The final parting came some years ago. The wife petitioned for divorce against her husband on the ground of cruelty. The petition came before Mr. Justice Rees on the 19th January, 1970, by which time husband and wife had agreed terms on which the petition could go undefended. These terms were notified to the court and approved by Mr. Justice Rees, and, that being so, the petition went through undefended and a decree nisi was granted. The decree absolute was, I think, granted on 15th May, 1970.

6

At the time that these parties were before Mr. Justice Rees, that is to say In January, 1970, they had one capital asset, thehouse to which I have already referred, which was held by them in joint names. The husband had a job which was in the £50-£60 a week bracket. The house (which was not the first matrimonial home of these parties) had been acquired on mortgage, and the husband was at that time, and had been since the house was acquired, paying the outgoings, that is to say the mortgage instalment repayments, the rates, and insurance. The house had been acquired for a sum of £4,000. They found that money in this way: £3,000 by way of loan, and £1,000 that they had available and put into the house by way of deposit. It would appear, although the exact proportions cannot, and indeed need not, be determined, that a substantial proportion of the £1,000 cash provided by the parties themselves came from the wife's resources. But, the house having been acquired, the husband paid the outgoings, and he continued to pay the outgoings until a date in 1971.

7

The terms of the settlement which were agreed and approved before Mr. Justice Rees, so far as relevant to this appeal, were these. The wife was to live in the house until remarriage or until she should (if this should happen) start cohabiting with another man. In the event of her remarriage or that other event, the house was to be sold and the proceeds of sale divided equally between them. The husband was to continue paying the outgoings, and he undertook a liability to meet the cost of any major repairs that might be needed.

8

Having dealt with their capital asset in that way, they agreed, and the order was made, for financial provision in these terms. The husband was to pay his wife maintenance at the rate of £2, 10s, 0d, a week and he was to pay maintenance for each of the children at £2, 10s, 0d, a week until they should reach the age of 16 or further order. Thus, the total financial provision in weekly terms that the husband had to find was a sum of £10.

9

It will be observed that these parties in January, 1970, thought it appropriate that their one capital asset, the matrimonial home (which, as I hare said, was in joint names), should be divided between them beneficially on a 50/50 basis. Unfortunately, a one time after those terms had been agreed, and the divorce obtained, there came a change in the circumstances of the husband. He lost his job and he defaulted on the mortgage instalment repayments. Inevitably, the building society began foreclosure proceedings, and in June, 1972, in the Chancery Division of the High Court, a possession order was made in favour of the creditor. It was suspended upon the wife undertaking to pay the current outgoings and £10 a month off the arrears which the husband, through his default, had allowed to accumulate.

10

Thus, by the summer of 1972 the wife was in this very difficult situation, that, on the maintenance payment for herself and her three children, totalling some £10 a week, she had to find the out goings and had to meet the repair bills of the house in which she and the three children were living. The financial scale of these outgoings was this. (Again I speak in general terms: I do not think it necessary for the purposes of judgment to be exact in figures, as long as one is approximately accurate). The mortgage instalments were running at about £21 a month; and we may assume that they are no less to-day. There were outgoings - rates, insurance premiums, and so forth - of the order of £8 a month. In addition to that £29 current outgoings, she had to find, under the undertaking which had enabled her to get the possession order suspended, a further £10 a month until those arrears that I have mentioned had been cleared off.

11

It is not surprising that, in the financial position in which the wife thus found herself, she in due course applied to the court for a variation of the agreed terms of 1970s and eventually herapplication cane to be heard by the learned registrar on the 22nd March of this year.

12

By this time the husband had been able to find another job: and his position was briefly this. He was in debt, and clearly it would take some little time (as the learned judge commented) for him to clear himself of his debts; but he did now have a job, bringing him in an income of about £51 a week. The wife had an Income, and this income (into the details of which I need not go) was represented to the registrar, and later to the judge, as being of the order of £16.80 a week. This Court has been provided with more up-to-date and more accurate figures, and I shall come to them in due course.

13

The learned registrar made his order on the application to vary. Again, it is not necessary to detail all its provisions, but those relevant to this appeal were these. He ordered that the house was not to be sold until the children should have ceased full-time education. I suppose we can take that as 17 years of age for the youngest child. He ordered that when the house was sold the proceeds of sale should be divided, not 50/50, as had been agreed in 1970, but two-thirds/one-third — two-thirds to the wife: one-third to the husband. He ordered that the wife should find all the outgoings of the house - including, of course, the mortgage instalment repayments, and those arrears which the husband had allowed to accumulate when he was out of work and financially embarrassed.

14

Having made those dispositions in regard to the capital asset of the family, the registrar then turned to financial provision. He reduced the maintenance order in favour of the wife to a nominal sum. Under his order that now stood at 5 pence a year. He made orders for the maintenance of the children, £4 for the eldest, £3 for the middle one, and £2.50 for the youngest one, a total of £9.50; and that order was to continue until they attained the age of17. He had before him an application by the wife for a lump sum payment — a very understandable application when one realises what A her commitments were— but, absolutely rightly in the light of the financial circumstances of the husband, he rejected that application,

15

The merit of his order appears to me to be that the learned registrar realised that, as the result of the change of circumstances I have mentioned, the wife was entitled to a greater interest in the capital asset - that is, the matrimonial home - than the 50 per cent. That the two of...

To continue reading

Request your trial
36 cases
  • Lilford (Lord) v Glynn
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 12 May 1978
    ...is secure. We find support for this view in the following passages from the judgments of Lord Justice Scarman (as he then was) in Chamberlain v. Chamberlain (1974 1 AER 33) and of Mr Justice Bagnall in Harnett v. Harnett (1973 F 156). 43 In the first of these cases Lord Justice Scarman said......
  • Cecil Austin Woodley v Sarah Elizabeth Woodley
    • Bermuda
    • Supreme Court (Bermuda)
    • 29 September 1994
    ...make continuing provision for his grown children. I adopt the words of Scarman L.J. (as he then was) in Chamberlain v. ChamberlainWLR[1973] 1 W.L.R. 1557 at p.1564 H ‘There are no circumstances here to suggest that any of the children had special circumstances which required them to make de......
  • Re N (A Child) (Payments for Benefit of Child)
    • United Kingdom
    • Family Division
    • Invalid date
    ...Ltd [1968] 3 All ER 651, [1970] AC 567, [1968] 3 WLR 1097, HL. C (Financial Provision), Re [2007] 2 FLR 13. Chamberlain v Chamberlain [1974] 1 All ER 33, [1973] 1 WLR 1557, CA. Egan v Motor Services (Bath) Ltd[2007] EWCA Civ 1002, [2008] 1 All ER 1156n, [2008] 1 FLR 1346, [2008] 1 WLR 1589.......
  • DN v UD
    • United Kingdom
    • Family Division
    • 29 January 2020
    ...circumstances, they have no claim on their parents' resources after seeking to be independent is taken from the successive cases of Chamberlain v Chamberlain [1973] 1 WLR 1557, then Lilford v Glynn [1979] 1 WLR 78 then Kiely v Kiely [1988] 1 FLR 248: “the statutory scheme is to enable the......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT