D v D (Financial Provision: Periodical Payments)
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE COLERIDGE |
| Judgment Date | 19 February 2004 |
| Neutral Citation | [2004] EWHC 445 (Fam) |
| Docket Number | FD02D05922 |
| Court | Family Division |
| Date | 19 February 2004 |
[2004] EWHC 445 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. Justice Coleridge
(in Private)
FD02D05922
MR. J. STOCKER (instructed by Messrs. X Solicitors, Brighton) appeared on behalf of the Appellant Husband.
MR. R. PEEL (instructed by Messrs. Miles Preston & Co.) appeared on behalf of the Respondent Wife.
(As approved by the Judge)
I am very grateful to both counsel for the careful and economical way in which they have presented this appeal which is on a narrow but difficult point. It is an appeal from an order of District Judge Brasse sitting at the Principal Registry, the date of the order being 31st October 2003. The order was at the end of a two-day hearing in which both parties were represented and at the conclusion of which the learned district judge divided up the capital and income of the parties after the conclusion of their 21-year marriage.
The order provides in the first three paragraphs for the distribution of capital. It is not necessary for me to deal with that in detail. In para.2 the district judge ordered the husband to pay the wife a lump sum of £63,000. He then assigned a policy and, crucially, at para.4 he made an order in relation to periodical payments in these terms:
"The respondent do pay to the petitioner periodical payments at the rate of £10,000 per annum during the parties joint lives or until the petitioner's remarriage or further order, all payments to be made monthly in advance by standing order."
Then in para.5 he dealt with a pension-sharing order and he transferred interests in two policies, one Scottish Equitable and one a Friends Provident policy. Upon that basis he dismissed the parties' claims or such outstanding claims that they had, he having made those orders. He provided also that the husband should pay 75 percent of the wife's costs.
The appeal brought in the High Court today before me relates solely to the order which he made in relation to income and, more particularly, not in relation to the quantum of periodical payments but the period during which it should obtain. The position of the husband before the district judge was that the period of the order should be limited to 10 years and at the conclusion of that 10-year period there should be what is customarily called a s.21(a) bar, that is to say a bar on the wife's ability otherwise to apply to extend the term. The upshot of such an order would be that, although a clean break was not achieved in 2003, it would be achieved completely in 2013 for, although the wife would be able within the 10-year period to apply to vary the amount, she would not be able to apply to lengthen the period. The wife's position, however, according to the district judge, and it remains her position today, was that the proper order in the circumstances was a full joint lives order without limit as to time.
Mr. Stocker, who acted for the husband below, renews his case before me today, seeking to alter the district judge's order in relation to the term to one of 10 years with a s.21(a) bar. I should make two preliminary points before considering the merits.
The first is that this was an appeal from one of that band of extremely experienced district judges and so I would be very slow to interfere with his discretionary evaluation. Secondly I sit primarily in a reviewing capacity to ensure that the process undertaken in the court below was properly so undertaken. In that respect I have had quite rightly emphasised to me by Mr. Peel, who appears for the wife although he did not appear below, the recent case of Cordle [2002] 1 F.L.R. The nub of that case is to be found where this is said:
"Any appeal from a decision of a district judge in ancillary relief shall only be allowed if it is demonstrated that there has been some procedural regularity or that in conducting the necessary balancing exercise the district judge has taken into account matters which were irrelevant or ignored matters which were relevant or has otherwise arrived at a conclusion that is plainly wrong."
That then is the principle under which I operate today.
Mr. Peel further emphasises the words of Lord Hoffmann in the case of Piglowska, where he amplifies the sentiments, if you like, in Cordle when directing judges to proceed with the greatest possible care when interfering with a judicial discretion exercised by a competent tribunal. Lord Hoffmann said this, amongst other things:
"It is of course not enough for the wife to establish that this court might or would have made a different order. We are here concerned with a judicial discretion. It is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible and is in fact plainly wrong that an appellate body is entitled to interfere."
There are other and similar statements in that case.
So I do bear very much in mind the function that I am to undertake. It is not necessarily one in which I merely look at the facts and figures in the way the district judge did and, if I come could the conclusion that I would have arrived at a different result, impose my own view.
The background to this appeal and this case is fully set out in the judgment of the district judge and there is no quarrel with almost any part of the factual findings that he made. In particular, if I may look at certain passages, he sets out in the first two passages the background to the case. He says this, because it is important:
"This is an application by the wife for ancillary relief. She is 55 years old, the husband is 51. The parties were married in June 1980. They separated in the spring of 2001 after a 21-year cohabitation. There are two children of the marriage, L, now 25, and S, 21. The wife's petition based on the husband's admitted adultery was presented on 27th August 2002. Decree nisi was pronounced on 14th January 2003. The wife works as a legal secretary. The husband is a partner in a two-partner [solicitor] firm in Brighton. He is largely the conveyancing partner."
He goes on to record that on separation the parties sold the matrimonial home and divided the proceeds and each has their own home. Then he sets out what he calls the principal issues between the parties, which were principally ones of how the financial pot, if I can put it that way, should be divided in half, it being agreed in principle that so far as possible equality should be achieved. Then he went on, having listed the first six issues:
"7. Finally whether the term for the periodical payments should be limited to 10 years or alternatively should be for the joint lives of the parties or until the wife remarries."
He then sets out with great care over the proceeding pages the matters under s.25 which require to be considered. He looks at the wife's financial position in great detail, coming to the conclusion that her present assets were about £168,000 or thereabouts. He then looks at the husband's position, his assets, his income, the particular arrangement he had come to with his son to assist him in the purchase of a property, one in which the husband retained an interest. He looked with great care at the question of the value of the husband's interest in his solicitors' partnership and he arrived, in my judgment, at perfectly sensible and correct decisions about the value of those assets, particularly the difficult question of how one ascribes value to something like interest in a partnership. He deals with that, as I say, with great care.
He then deals with the husband's income and he concludes that the husband's present earning capacity, taking into account benefits, could be properly put at about £61,000 a year. He deals with the problem faced by the courts as a result of the decision in Leadbetter. He then turns to consider, quite rightly, the parties' budgets, calculates the husband's at about £29,000 a year and the wife's at about £25,000 a year, and makes appropriate findings. Then importantly, at paras.38 and 39, he deals with both parties' health problems, particularly the wife who has suffered, he says, three mild epileptic fits in the past eight years. He deals with the imponderables surrounding that, but he finds that as yet "there is no evidence that this condition is affecting her earning...
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