Cotgrave v Cotgrave
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE McCOWAN,LORD JUSTICE PURCHAS |
| Judgment Date | 23 April 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0423-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/0390 |
| Date | 23 April 1991 |
[1991] EWCA Civ J0423-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ALTRINCHAM COUNTY COURT
HIS HONOUR JUDGE CARTER Q.C.
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Butler-Sloss
and
Lord Justice McCowan
91/0390
MR. ADRIAN WALLACE (instructed by Messrs Linder Myers, Manchester) appeared on behalf of the Appellant (Respondent)
MISS M. LOGAN (instructed by Messrs Glyn Jones & Co.) appeared on behalf of the Respondent (Respondent).
This is an unusual point raised on appeal which turns on whether or not a resettlement sum paid to a seaman on leaving the Royal Navy can be the subject of a lump sum order under section 23 of the Matrimonial Causes Act 1973 before the sum is actually paid to the seaman. If it can, the husband (who was the respondent to the original petition and the respondent to this appeal) is at fault in not paying under the order, and there has been an application for committal for contempt by the wife.
That application came before His Honour Judge Carter Q.C. on 3rd December 1990. He refused to make a committal order not on the merits of the case but despite his view that the husband was in clear contempt of court, on the basis that there was no power in the court under section 37 of the Matrimonial Causes Act 1973 to make such a lump sum order or indeed to prevent the payment of the resettlement sum by the Navy to the husband to be dealt with as he chose. There is an appeal by the former wife from the refusal of the judge to commit the husband for contempt.
The short facts relevant to this appeal are that the parties married on 27th April 1974. There are three children born in 1976, 1978 and 1986, all of whom are with the wife. The husband until very recently was serving with the Royal Navy and the family lived throughout in married quarters, the last being in Rosythe, Scotland. In 1985 the parties separated. The wife moved with the children to Manchester and the husband sold or disposed of all the furniture and goods in the former matrimonial home, which was the cause of a substantial dispute at the hearing before the registrar on ancillary relief, a dispute which it appears was resolved in favour of the wife, the wife receiving no benefit whatever from the disposal of these goods, and she being not only on social benefit but having to ask the state to supply her with the bare necessities of life. That was the background to this application by the wife.
The husband left the Navy prematurely with health problems accentuated, it appears, by an excessive intake of alcohol. He had intended to stay in the Navy until 1991. He had the expectation of a pension, a resettlement grant and a terminal lump sum.
There were earlier applications for maintenance pending suit and interim periodical payments for the children. There was an application by the wife for periodical payments for herself and a lump sum under section 23. She was, of course, aware that the husband would be getting certain lump sums from the Navy. She made an application to prevent the dissipating of these sums and there was an interim section 37 order granted ex parte. That order was continued inter partes on 10th August 1990. It being the second order inter partes there is no doubt whatever that the husband was aware that he could not dispose of any money that was in fact given to him by the Navy.
The substantive hearing on ancillary relief was on 22nd February 1990 before Mr. Registrar Woolf, who ordered:
"1. Respondent do forthwith on receipt of his resettlement grant on leaving the Royal Navy pay to the petitioner a lump sum of £2,500.…"
On the 31st October 1990 there was an application by the husband for leave to appeal out of time before His Honour Judge Blackburn. That application was refused. On neither of those occasions was the question whether the registrar had jurisdiction to make the lump sum order in the form in which he did actually raised before the court, and there has been no application for leave to appeal against the order of Judge Blackburn.
On or about 13th August 1990 there was a payment to the husband of the re-settlement grant of £4,436 but no other payment, as I understand it, has been made to him. He did not pay the £2,500 or the costs to the wife and there was an application to commit him to prison on 2nd September with notice to show cause in respect of the alleged contempt of court. The committal hearing came on on 3rd December 1990 and it is against the refusal to commit him to prison that this appeal comes to this court.
Two issues arise. On one only is it necessary for this court to make a decision because it disposes of the appeal. The first is a question of the construction of the Naval and Marine Pay and Pensions Act 1865. The second question is whether it was open to the judge to look behind the order of the registrar and the refusal of leave to appeal by Judge Blackburn in refusing to commit the husband for contempt on the basis that the order was void. Since in my judgment the first issue on interpretation of the 1965 Act disposes of this appeal, it is not necessary to go down the further road of questions of estoppel which can be left to another day and another court.
For the first time the court was faced with whether there was jurisdiction to make an order in respect of money due to a serving seaman and to attach conditions to it so that it could not be disposed of as he chose. The learned judge came to the conclusion that what he had to do was to decide whether the...
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