Clutton v Clutton
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LLOYD,MR JUSTICE EWBANK |
| Judgment Date | 26 October 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J1026-1 |
| Docket Number | 90/0927 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 October 1990 |
[1990] EWCA Civ J1026-1
Lord Justice Lloyd
Mr Justice Ewbank
90/0927
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRKENHEAD COUNTY COURT
(HIS HONOUR JUDGE RHYS ARTHUR)
Royal Courts of Justice
MR NICHOLAS MOSTYN, instructed by Messrs Roberta Tish, London agents for Messrs Robinsons (Liverpool), appeared for the Appellant (Respondent).
MR KEVIN READE, instructed by Messrs Belmont & Lowe, London agents for Messrs D.P. Roberts Hughes & Denye, appeared for the Respondent (Petitioner).
This is an appeal by a husband from a judgment of His Honour Judge Arthur sitting at Birkenhead County Court on 11th July 1989, whereby he ordered the husband to transfer to the wife his entire interest in the matrimonial home, 97 Capenhurst Lane, Whitby, Ellesmere Port. The parties were married in 1964. They have two children, Suzanne, now 23 and Amanda, now 16. Suzanne is married and living in her own home. Amanda has left school and started work. She is still living with her mother.
At the time of their marriage the husband was a bricklayer. He has done well in the building trade, and now earns £20,000 per annum gross. In 1970 he bought the matrimonial home in his sole name for about £4,500, subject to a small mortgage. The equity, net of mortgage, is now worth about £50,000.
The parties separated in April 1984. The decree nisi was pronounced on 27th November 1984, and made absolute on 25th February 1985. So the parties were married for 20 years. The husband, who is 48, remarried in 1985. The wife is also 48. She has a stable sexual relationship with a Mr Davidson. But she says she does not intend to marry him, or to cohabit. She is content with things as they are.
On 24th September 1984 the wife swore an affidavit in support of her application for ancillary relief. In the last paragraph she said:
"For that reason I respectfully ask that an Order be made whereby the property may be transferred into my sole name or that I may at least remain in the house with the children and should not be required to sell the house until my death or remarriage, or such Order as the Court shall think fit".
An order whereby the sale of the matrimonial home is postponed until the youngest child of the family is 18, or some other age, is usually known as a Mesher order. An order whereby the sale is postponed until the wife dies, remarries or cohabits with another man, is usually known as a Martin order. It will be seen that while, in 1984, the wife was asking for an out and out transfer of the matrimonial home, she would have been content, in the alternative, with a Martin order.
For some unexplained reason, having to do with the husband's efforts to settle his debts, the application did not come on before Mr Registrar Yates until 24th October 1988. The Registrar found it a difficult case. He accepted the husband's submission that he ought to have something as a deposit for a house. But he said that the wife needed time to sort out her finances before she could pay him anything. So he ordered a transfer of the house to the wife, subject to a charge in favour of the husband for £7,000, not to be enforced until 1st January 1991. In addition he awarded the wife maintenance at £10 per week, and maintenance to Amanda at £25 per week. Finally he ordered the husband to pay £1,250 towards the wife's costs.
The husband was dissatisfied with the Registrar's order. So he appealed. The appeal came before His Honour Judge Arthur on 11th July 1989. The result of the appeal, on one view at any rate, is that the husband has done worse than he did before the Registrar. It is true that he is no longer obliged to pay off arrears of maintenance, or to pay £1,250 towards the wife's costs. But he has lost his right to £7,000.
The judge did not give a judgment in the ordinary sense. He did not explain his reasons at all, other than to say that it was a clear case for a clean break. That he has achieved a clean break is true. But he has achieved it, so Mr Mostyn submits, at the cost of manifest injustice to the husband.
The facts, as they were put before Judge Arthur, were briefly as follows. The matrimonial home is the sole capital asset of the parties. The husband has debts amounting to £17,000, which he is paying off at the rate of £260 a month. After allowing for rent and rates on his present accommodation, and debt repayment, his net disposable income is £127 per week. In addition the husband's new wife runs a small business which brings in £2,000 a year.
The wife works part-time as a typist for the local health authority, and earns £66 per week.
In these circumstances, the husband asked for a Martin order, on terms that he should have one-third of the proceeds of sale, should the wife remarry or cohabit. Otherwise she would be entitled to live in the matrimonial home for the rest of her life.
The wife asked for a clean break. It was said on her behalf that this had been a long marriage, that she had limited income and earning capacity compared to her husband, and that she had a genuine fear of "perpetual supervision" by the husband for the purpose of establishing cohabitation.
The principle of the clean break was, of course, well established long before the Matrimonial and Family Proceedings Act 1984: see for example Minton v. Minton [1979] A.C. 593, per Viscount Dilhorne at 601 and Lord Scarman at 608. It is now enshrined in section 25A(1) of the Act. But there is perhaps a danger in referring to it as a "principle", since it might lead courts to strive for a clean break, regardless of all other considerations. This is not what section 25A requires. It requires the court to consider the appropriateness of a clean break—neither more nor less. It is salutary to remind oneself from time to time of the language of section 25A(1):
"…it shall be the duty of the court to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable".
Another danger is that "clean break" may mean different things to different people. In origin it referred to an arrangement whereby the wife abandoned her right to claim maintenance in return for a transfer by the husband of a capital asset, usually, though not always, the matrimonial home, thus encouraging the parties to put the past behind them, and, in the words of Lord Scarman in Minton v. Minton, "to begin a new life which is not overshadowed by the relationship which has broken down". That part of the order of the Registrar, whereby he ordered the husband to pay £10 per week maintenance, offended against that principle. The judge was clearly right to vary that part of the Registrar's order.
But I am by no means certain that the charge in favour of the husband in the sum of £7,000, enforceable in January 1991, offended against the principle of the clean break in the same sense. The Registrar clearly thought that the husband deserved something out of the sole capital asset. But he made plain that he was not going to make a Mesher order. His reason for postponing the charge was, as he put it, simply to give the wife a breathing space to sort out her finances. In other words, he contemplated that the wife would be able to pay the husband £7,000 without the house being sold. If so, then there was much good sense in that part of the Registrar's order. But I need not consider the point further, since the husband did not seek to support that part of the Registrar's order before the judge.
Where the judge went wrong, and plainly wrong in my opinion, was in refusing to make a Martin order. As I have pointed out, that is what the wife was originally content to accept. It is also what the husband was asking for. Why then did the judge not make a Martin order? We cannot tell, because we do not know his reasons. It cannot surely have been because a Martin order would offend against the principle of the clean break. A charge which does not take effect until death or remarriage could only be said to offend against the principle of the clean break in the most extended sense of that term. The only clue we have is the argument on behalf of the wife that she did not want to be spied on.
I see some force in that argument, although it was scarcely pressed before us. Indeed it was not mentioned at all until it was raised by the court. Whatever the force of the argument, it is far outweighed by the resentment which the husband will naturally feel if the wife remarries within a year or two and continues thereafter to occupy...
To continue reading
Request your trial
-
Dorney-Kingdom v Dorney-Kingdom
...with that sort of provision the wife's future needs would never be at risk. He relies particularly on the decision of this court in Clutton v Clutton [1991] 1 FLR 242, in which both Lloyd LJ and Ewbank J drew attention to the fact that Mesher orders had a continuing utility in cases where: ......
-
Kianoosh Azarmi-Movafagh v Sorour Bassiri-Dezfouli
...the use of Mesher orders which he regarded as likely to lead to ‘harsh and unsatisfactory’ results. Lloyd LJ in Clutton v Clutton [1991] 1 FLR 242 CA declined to go so far, saying that a Mesher order might provide the best solution when children need to stay in the matrimonial home, but tha......
-
Elda Elizabeth Loader (Respondent (Petitioner) v Christopher John Loader (Appellant Jean Buttifant (Co-Respondent)
...a clean break between the parties before it, As to this we have been referred to the passage in the judgment of Lord Justice Lloyd in Clutton v. Clutton [1991] 1 All E.R. 340 at page 343 which I think it is important to emphasise again: "The principle of the clean break was, of course, well......
-
Gurdial Singh Verma v Raj Rani and Another
...that order. She invokes the principle that has become well-established by such authorities as Martin v. Martin [1976] 3 A.E.R. 625 and Clutton v. Clutton [1991] 1 W.L.R. 359. The general principle applies where resources are scarce, and the only asset is a home lived in by one spouse of suc......