Cornick v Cornick (No 2)
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE RUSSELL,SIR RALPH GIBSON |
| Judgment Date | 28 June 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0628-8 |
| Docket Number | FAFMI 95/0015/F. |
| Court | Court of Appeal (Civil Division) |
| Date | 28 June 1995 |
[1995] EWCA Civ J0628-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: The President Lord Justice Russell Sir Ralph Gibson
FAFMI 95/0015/F.
MR. J. PONANSKY QC appeared on behalf of the Plaintiff. (Instructed by Messrs Sears Tooth, Mayfair.)
MR. N. MOSTYN appeared on behalf of the Respondent. (Instructed by Messrs Gordon Dodds, London.)
28th June 1995
On the 18th December 1992 District Judge White heard an application for financial ancillary relief by the wife petitioner. He ordered that the husband should pay £20,000 to the wife by way of periodical payments and £4,200 for each of the children, making a total of £28,400 by way of periodical payments. He further ordered that the husband should pay their school fees and certain extras.
The District Judge had heard an application by the wife for a clean break order, but he took the view that the capital available from the husband was not sufficient to be able to make a suitable capital payment on a clean break basis which would cater for her and the children in the future. Accordingly, he made an order in which he awarded a capital sum to the wife which in fact was tantamount to the proceeds of the sale of the matrimonial home and, in addition, he made the order for periodical payments.
At the time of the application, the the parties were each about 50 years of age. The children were two girls aged 16 and 14. The parties had married in November 1975 and had separated in March 1992 when the husband left the wife. A decree nisi was pronounced in July 1992 followed by a decree absolute, and the wife made her application for financial ancillary relief on 4th November 1991 and the District Judge gave his judgment on 18th December 1992. On 19th September 1994 Hale J heard an application by the wife for variation of the periodical payments order made by District Judge White on 18th December 1992.
The background to the matter was that the husband had had a net income of approximately £90,400 at the time of the order of the District Judge. By the time of the application before Hale J to vary the periodical payments, his capital resources had increased dramatically and his income had in fact more than doubled. The District Judge had found that the family, during their marriage, had enjoyed what he termed a luxurious standard of living and, at the time of his judgment, he had the advantage of agreed figures relating to the wife's budget and her reasonable needs, and also her estimated earning capacity. By the time the matter came before Hale J, what she termed the 'financial landscape' had altered dramatically. The husband's fortune had increased remarkably. His capital resources had quintupled because the value of the shares in the company, of which he was deputy chairman, had increased in value, and he had achieved a remarkably increased income as a result of his overall work and interests.
The learned Judge had evidence in the form of affidavits from the parties. In fact the figures were not in dispute from an arithmetical point of view. The husband, who had appealed from the judgment which Hale J gave on 19th September last year, submitted that the Judge should restrict herself with respect to the application to vary the periodical payments, to consideration of the wife's budget, that is to say her reasonable requirements, and that that might include appropriate but minor adjustments with regard to the inflation factor and certain other minor matters. The learned Judge referred herself to section 31(7) of the Matrimonial Causes Act 1973:
"In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen. The circumstances of the case shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates…"
Section 25 of the Matrimonial Causes Act 1973 sets out the matters to which the court shall have regard in deciding the exercise of its powers. Sub-section (2) provides:
"(2) As regards the exercise of the powers of the court under Section 23 or 24 or 24(a) above in relation to a party to the marriage, the court shall in particular have regard to the following matters -
(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
(c) the standard of living enjoyed by the family before the breakdown of the marriage;
(d) the age of each party to the marriage and the duration of the marriage."
I need not for the purposes of this judgment recite in detail the other sub-paragraphs of sub-section (2) of Section 25.
The husband submits to this court, as he submitted before Hale J, that the court should have confined itself to what Mr. Mostyn, his counsel, termed the 'budgetary approach', that is to say the Judge should have concentrated on the reasonable requirements of the wife. In this case Mr. Mostyn submitted that the wife's reasonable requirements were set out in detail in the schedule of her needs which was annexed to her affidavit and which was in fact the subject of agreement before the District Judge. Mr. Mostyn submits that it would be quite wrong to start 'de novo' at a variation hearing and to have regard to the greatly increased earning capacity and earnings of the husband. The learned Judge at line 19 page 2 of the transcript of her judgment said:
"It was contended by Mr. Mostyn, on behalf of the husband, that because the original order was calculated largely on the basis of the wife's requirements for herself and the children the court should continue the look at the wife's budget and make appropriate adjustments to that rather than consider the whole picture. This cannot be right for two reasons.
First, the Matrimonial Causes Act 1973 itself in section 31(7) requires me to take all the circumstances into account and to give first consideration to the welfare of minor children, which is very important in this case. It also requires me to look at any change in the circumstances to which the court had to have regard when making the original order. This of course includes the actual and likely capital and income resources of both parties as well as their actual and likely financial needs and responsibilities. (It also requires me to consider bringing the wife's periodical payments to an end, but no-one thinks that that would be appropriate in this case.)"
It should be ordered that, in so far as Section 25A of the Matrimonial Causes Act requires the court to consider bringing periodical payments to an end, neither party contended or contends now that that would be an appropriate way of proceeding upon this particular application.
The learned Judge then said that Mr. Mostyn's submission was wrong for a second reason. She cited Boylan v Boylan [1988] 1 FLR 282, a judgment of Booth J in the Family Division of the High Court, and Primavera v Primavera [1992] 1 FLR 16, a judgment of the Court of Appeal, and said:
"Secondly, the cases of Boylan v Boylan and Primavera v Primavera make it clear that the court is entitled to take...
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