Charles Ernest Leonard Whitlock v Ingeborg Robertson (formerly Whitlock)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE BUCKLEY |
| Judgment Date | 21 May 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0521-4 |
| Date | 21 May 1976 |
| Court | Court of Appeal (Civil Division) |
[1976] EWCA Civ J0521-4
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On appeal from Order of Judge Kee:
Lord Justice Buckley
and
Lord Justice Stephenson
Mr. J. TATHAM (instructed by Messrs Basset & Boucher) appeared on behalf of the Appellant Wife.
Mr. J. SAMUELS (instructed by Messrs. Tilbrook, Hunt & Lock) appeared on behalf of the Respondent Husband.
This is an appeal from an Order of Judge Kee made in the Rochester County Court on the 23rd January of this year, dismissing an appeal from Mr. Registrar Munro's Order of the 5th January which struck out the appellant wife's application for a Property Adjustment Order under Section 24 of the Matrimonial Causes Act 1973.
I call the appellant "the wife", but she was divorced from the Respondent husband by decree nisi pronounced on the 17th October, 1974, and made absolute on the 29th November, 1974. She has remarried – on the 11th December, 1974 – and it is her re-marriage that gives rise to this appeal. By Section 28(3) of the Matrimonial Causes Act 1973: "If after the grant of a decree dissolving or annulling a marriage either party to that marriage remarries, that party shall not be entitled to apply, by reference to the grant of that decree, for a financial provision order in his or her favour, or for a property adjustment order, against the other party to that marriage".
The question raised by this appeal is whether the wife applied for an order under Section 24 before re-marriage, as she contends, or after, as the Registrar and the Judge held.
The Registrar had before him a notice of application to the Rochester County Court dated the 13th November, 1975, in a general form under the Matrimonial Causes Rules - that is to say a form not stated to be made under any particular rule. The Notice was in these terms: "Take Notice that we intend to apply to the Registrar of this Court at Court House, Eastgate, Rochester, on Monday the 5th day of January 1976 at 3.05 o'clock for a Declaration that the Respondent has an interest in the assets presently held by the Petitioner. Alternatively that an Order be made that the Petitioner do Transfer so muchof his assets to the Respondent as may be just. And that this matter be transferred to the High Court".
There was also before the Registrar an application under the Married Women's Property Act for various declarations and a supporting affidavit, both of the 10th November, 1975. The husband countered with a Notice of Application dated the 12th December, 1975, in these terms: "Take Notice that we intend to apply to the Registrar of this Court" – the same date, time and place are given – "for an Order that:- So much of the Respondent's application as claims relief pursuant to the provisions of Section 24 of the Matrimonial Causes Act 1973 be struck out on the ground that it discloses no reasonable cause of action".
On the 5th January, 1976, the Registrar ordered: "1. The application under Section 24 of the Matrimonial Causes Act 1973 be struck out with costs' Certificate for Counsel". He then gave directions as to the application under Section 17 of the Married Women's Property Act, which he adjourned.
On the 13th January, 1976, the wife gave notice of application for leave to appeal out of time against the Registrar's Order for an order setting it aside and transferring both applications to the High Court. On the 23rd January, the Judge gave the wife leave to appeal out of time, dismissed her appeal but gave her leave to appeal to this Court.
By her Notice of Appeal of the 4th February, she asks this Court to make the Orders which the Registrar refused to make and to hold the Judge wrong in four respects, to which I shall return.
The husband had filed his Petition on the 5th July, 1974, on the grounds of the wife's adultery under Section 2(1)(a) of the Act. The wife did not defend the suit, but on the 20th July, 1974,acknowledged service of the Petition by completing the form which corresponded with Form 6 in the Appendix to the Matrimonial Causes Rules 1973, except that it was a truncated form in that those parts of the form which have to be deleted in a case like hers had been omitted from the printed form.
She answered question 4 in From 6 "Do you intend to defend the case?" "No". She answered question 6 "Do you wish to make any application on your own account for (a) access to the' children?" "Yes"; "(b) custody of the children?" "Yes"; C "(c) periodical payments or secured periodical payments to the children?" "Yes"; "(d) maintenance pending suit?" "No"; "(e) periodical payments or secured periodical payments for yourself?" "No"; "(f) a lump sum provision?" "No"; "(g) settlement or transfer of property?" "Yes" and "(h) variation of a settlement" "Yes".
The main submission made on her behalf here and below is that her answer to question 6(g) constituted an application for a transfer of property, but Counsel also relied and relies on a letter dated the 25th July, 1974, which her solicitors wrote to the husband's solicitors in these terms: "Dear Sirs, we enclose confessions of adultery, which have been made and signed by our clients and which your client nay use in support of his Petition for divorce.
"We are instructed to say that our client does not propose to contest your client's claim for custody, which will be heard on the 3rd September, nor does she propose to exercise access.
"Our client instructs us that she does wish to make a claim in respect of her interest in the following: 20 Windy Ridge, 62 Linden Road, 23 Church Terrace, a savings account at Barclays Bank, High Street, Rainham, a current account at Barclays Bank,High Street, Rainham, a Chrysler Motor Car 180, a Fiat Motor Car 850, 1 colour television set, 1 black and white television set and money invested in the Alliance Building Society.
"If a quick settlement can be reached, and without prejudice to her rights, our client is prepared to accept one half of the value of the above property". They then go on to write that they are further instructed to give notice that their client proposed to make a number of other clains.
The Judge was referred to various provisions in the Act and Rules of 1973 and to several forms in the Appendix to those Rules. He was also referred to three authorities: Jackson v. Jackson 1973, Family Division, 99; Marsden v. Marsden 1973 1 Weekly Law Reports 641 and Doherty v. Doherty 1976 Family Division, 71. He asked himself what he called "the vital question: Has the application been made before re-marriage?" and he answered it in this way - I read from page 20 of the bundle: "My conclusion is this: In my judgment to constitute an application of the kind which the wife wishes to bring with regard to a transfer of property, Rule 68(3) has to be complied with. That rule says specifically that the application must be made by notice in form 11. I do not consider it sufficient to give an indication in an Acknowledgment of Service of a wish to make an application, nor do I consider that it suffices separately or collectively to follow it by a letter in which it is said that the wife 'wishes to make a claim'. In my judgment a wish to apply or an intention to apply does not suffice. There must be something which can sensibly be regarded as the application itself. Here my view is that there is nothing in the Acknowledgment of Service nor in the letter that can properly be regarded as an application, although I appreciate the force of the argument the other way.
Therefore as to the appeal on the main part with regard to the application under Section 24 I find that the Registrar's decision was rightly arrived at and the appeal is therefore dismissed".
To state simply that I agree with the learned Judge would not do justice to Mr Tatham's argument in support of the appeal. As I have said, it is contended in the Notice of Appeal that the Judge was wrong in four respects; wrong, it is said, in holding that the wife's application for settlement or transfer of property and for variation of a settlement as made by her in her Acknowledgment of Service of the 20th day of July 1974 was not an effective Application unless coupled with the filing of a Notice in 'Form 11'; wrong in holding that it was necessary for the wife, who had not filed an Answer, to make her Application for a property adjustment Order by notice in 'Form 11'; wrong in holding that Rule 68(3) was substantive rather than procedural; wrong in failing to make into account that the husband had at all material times been aware of the wife's claim for property adjustment and that furthermore he had not acted to his detriment by reason of her alleged failure to file a Notice in 'Form 11"'.
What is meant by a party to a marriage applying for a Property Adjustment Order in his or her favour against the other party to that marriage? I should have thought that it must mean applying to the Court by taking some fairly formal step; making an application, nor merely wishing or intending to make an application nor having an application actually entertained or heard by the Court.
I am pleased, but not surprised, to find that there is authority for both distinctions. The first distinction is in the judgment of Sir George Baker in Dryden -v- Dryden, 1973 Family Division, 217 at page 231, which was not cited to the CountyCourt Judge, and the second distinction is in the judgment of Mr. Justice Bagnall in Jackson, which was cited. The wife, in my judgment, made no application to the Court on the 20th July, 1974, nor on the 25th July, 1974, Her first application was on the 13th November, 1975, nearly a year after her remarriage and, therefore, too late to be effective.
Mr. Tatham called our attention to the position of a...
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