Delaney v Delaney
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,MR JUSTICE WARD |
| Judgment Date | 22 May 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0522-2 |
| Docket Number | 90/0500 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 May 1990 |
[1990] EWCA Civ J0522-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ALTRINCHAM COUNTY COURT
(HIS HONOUR JUDGE BLACKBURN)
Royal Courts of Justice
Lord Justice Nourse
and
Mr Justice Ward
90/0500
MR W.T.C. SMITH, instructed by Messrs Ridgway Greenall (Cheshire), appeared for the Appellant (Respondent).
MISS J.F. WALL, instructed by Messrs Steels (Warrington), appeared for the Respondent (Petitioner).
I will ask Mr Justice Ward to give the first judgment.
With the leave of the judge this respondent husband in a suit for divorce appeals against the order of His Honour Judge Blackburn made on 21st November 1989 whereby the learned judge dismissed the husband's appeal from the order of the learned deputy Registrar that he pay periodical payments to three children of the family at the rate of £10 per week in respect of each child. The learned deputy Registrar made an order in the wife's favour of £0.05 per annum and there is no appeal in respect of that.
The children of this family are a boy Kris born on 30th June 1978, so he is soon to be 12 years of age; Rachel was born on 19th March 1980, so she is ten; and Craig was born on 12th January 1985; he is five. They are the children of this petitioner and respondent who married on 7th January 1978 and separated nine years later in February 1987 at about the time of the grant of the decree nisi of divorce in the petitioner wife's favour. That decree was made absolute on 6th March 1989, but I shall for convenience continue to call them "husband" and "wife".
The husband had been unemployed for some four and a half years when in October 1988 he found work, at first on a temporary or probationary basis, but he was taken on to the permanent staff in December of 1988.
On 28th February 1989 the wife applied for periodical payments for herself and the three children. That came before the learned deputy Registrar on 8th September 1989 when he made the orders I have recited and that led to the appeal to the judge. The learned judge properly heard the matter de novo, read the affidavits, took oral evidence and, as I have stated, confirmed the Registrar's order.
The wife's income was found to be £98.75 per week made up as follows: (1) From her comparatively new employment as a sales assistant she earned £50 a week basic with some possibilities for overtime which the learned judge quite rightly ignored. After payment of her national insurance contribution she was left with £48 a week net. (2) She continued the part-time employment she had held for some time in the local sports and social club where she worked three nights a week and earned £29.32 from that source. (3) She was in receipt of child benefit of £21.75 for the three children. She is, therefore, a hard working lady to whom all credit must be given. She does not shirk at all from her responsibilities for herself and for her family.
It does not appear to have been drawn to the learned judge's attention that she was entitled as of right to a further benefit, being the single parent benefit currently of £5.60 per week. She was not making claims for nor in receipt of any other state benefit and gave evidence that she had not enquired into those matters. Nor was it explored before the learned judge, who was therefore not given the benefit of the help we have had today and for which I pay my tribute to Miss Wall, counsel for the wife, who very fairly feeds us this vital information, namely that having regard to the wife's earned income she is entitled to family credits of £45.35 per week. She will receive that amount on a basis that there is no order for periodical payments either in her favour or in favour of the children. If an order is made in respect of either her or the children, as I understand it, that benefit will be reduced by £0.70 for every pound which she receives up to that limit of £45.35.
Considering therefore what this lady is entitled to, if one has regard to those state benefits, the arithmetic then is to this effect: from her income some £79.32, from her child benefit £21.75, from her single parent benefit £5.60, and there is family credit of £45.35, which adds up to a total of some few pence short of £152 per week.
As against that, she expressed in her affidavit her weekly expenditure which totalled £112.70 per week. I draw attention to only some features of that expenditure. Her rent was £33 a week and £3 was paid off the arrears that had accumulated making £36 a week in all. Her food bills were modestly pitched at £30 a week for herself and her three children. Her mail order catalogue, which I assume related largely to buying clothing, was £12 a week. Because she has struggled, and one recognises how she must have struggled, she has not always been able to meet all her expenditure. The result is she has incurred certain penalties for non-payment of rates, water rates and the television licence, and the poor lady has certain fines to pay as a result of that misfortune, and those fines are included in those outgoings.
The learned judge said this of her income and her need: "After paying her rent and rates, she has left £50,with which to feed and clothe herself and her three children. This patently is not enough", and quite clearly it is not. Her express need was for £71.70 in addition to that commitment for rent and rates, and that was modest, as was conceded, and rightly conceded, by counsel for the husband both in the court below and before us.
The real issue, therefore, is the extent to which the husband can meet that need of this wife and this family. His position is that following the separation from his wife he has established a relationship with another lady whom he hopes soon to marry and with whom he hopes then to start a new family. For a while after the separation he lived with his father, but then he took a tenancy in the private sector of a one-bedroomed flat which was costing him £26 a week. The learned judge appears, as I understand his judgment, to accept that the flat with its one bedroom was not convenient for access to the children on rainy days, nor, I would add, is it convenient for the children for the purpose of staying access, and ordinarily one would hope and expect that a father would enjoy staying access, bearing in mind he has a boy rising 12, another boy of five, and his daughter in the middle, aged ten.
Faced with life in that one-bedroomed flat and his hopes for the future, this husband and his girlfriend embarked on the purchase of alternative accommodation. It is not clear from the papers when that was first contemplated. They were in the process of purchasing the property at the time his first affidavit was sworn in May of 1989, which is after the wife's application made in February, and they had moved into the property by 26th May 1989. What they have done is this. They have availed themselves of those opportunities, which may be rare opportunities and are certainly beneficial opportunities, to buy a property in conjunction with a housing association. The basis of the arrangement is that the young couple acquire a one-half interest in the property and the other half is acquired by the association, who then let it to the couple. Consequently, they pay a mixture of mortgage repayments and rent.
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