Dinch v Dinch

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Keith of Kinkel,Lord Templeman,Lord Griffiths,Lord Oliver of Aylmerton,Lord Goff of Chieveley
Judgment Date19 Feb 1987
Judgment citation (vLex)[1987] UKHL J0219-4

[1987] UKHL J0219-4

House of Lords

Lord Keith of Kinkel

Lord Templeman

Lord Griffiths

Lord Oliver of Aylmerton

Lord Goff of Chieveley

Dinch
(Respondent)
and
Dinch (A.P.)
(Appellant)
Lord Keith of Kinkel

My Lords,

1

I have had the opportunity of reading in draft the speech to be delivered by my noble and learned friend, Lord Oliver of Aylmerton. I agree with it, and for the reasons he gives would allow the appeal.

Lord Templeman

My Lords,

2

For the reasons given in a speech which has been prepared by my noble and learned friend, Lord Oliver of Aylmerton, I would allow this appeal.

Lord Griffiths

My Lords,

3

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Oliver of Aylmerton. I agree with it and would allow this appeal.

Lord Oliver of Aylmerton

My Lords,

4

This is an appeal brought by the respondent in matrimonial proceedings with the leave of your Lordships' House against an order of the Court of Appeal dated 10 July 1985 allowing the petitioner's appeal from an order made on 21 January 1985 by Judge Main, directing that the former matrimonial home of the parties be sold and dismissing the petitioner's application for lump sum and transfer of property orders and for an order that the sale of the property be postponed. The appeal is yet another example of the unhappy results flowing from the failure to which I ventured to draw attention in Sandford v. Sandford [1986] 1 F.L.R. 412 to take sufficient care in the drafting of consent orders in matrimonial proceedings to define with precision exactly what the parties were intending to do in relation to the disposal of the petitioner's claims for ancillary relief so as to avoid any future misunderstanding as to whether those claims, or any of them, were or were not to be kept alive. The hardship and injustice that such failure inevitably causes, particularly in cases where one or both parties are legally aided and the only substantial family asset consists of the matrimonial home, are so glaring in the instant case that I feel impelled once again to stress in the most emphatic terms that it is in all cases the imperative professional duty of those invested with the task of advising the parties to these unfortunate disputes to consider with due care the impact which any terms that they agree on behalf of their clients has and is intended to have upon any outstanding application for ancillary relief and to ensure that such appropriate provision is inserted in any consent order made as will leave no room for any future doubt or misunderstanding or saddle the parties with the wasteful burden of wholly unnecessary costs. It is, of course, also the duty of any court called upon to make such a consent order to consider for itself, before the order is drawn up and entered, the jurisdiction which it is being called upon to exercise and to make clear what claims for ancillary relief are being finally disposed of. I would, however, like to emphasise that the primary duty in this regard must lie upon those concerned with the negotiation and drafting of the terms of the order and that any failure to fulfil such duty occurring hereafter cannot be excused simply by reference to some inadvertent lack of vigilance on the part of the court or its officers in passing the order in a form which the parties have approved. Having said this, I must add that the consent order which has given rise to such unfortunate consequences in the instant case is not one which was drawn by any of the counsel appearing before your Lordships or for which they can be held in any way responsible.

5

My Lords, the appellant and the respondent (to whom I will hereafter refer as "the husband" and "the wife" respectively) were married on 19 October 1957. There were two children of the marriage, namely, Errol, who was born on 8 August 1958, and Timur, who was born on 28 April 1965. The latter has completed his full-time education but lives with his mother in the matrimonial home, which, at all material times, consisted of a three-bedroom, freehold dwelling-house at 1, Eversley Crescent, Isleworth, Middlesex, which had been purchased in the joint names of the husband and the wife. Having formed a liaison with another woman, the husband left the matrimonial home on 9 April 1978, and on 25 May 1978 the wife presented in the Brentford County Court a petition for dissolution of the marriage based on the husband's adultery. That petition contained prayers for ancillary relief by way of periodical payments, secured provision orders, lump sum orders and a property adjustment order. The husband, who was at that stage unrepresented, filed an answer and the cause was thereafter transferred to the High Court. There were, during the summer of 1978, a number of applications to the court which it is unnecessary to mention, save that your Lordships have been told that an injunction was, at some stage, granted to prevent the husband until further order from returning to the matrimonial home save for the purpose of collecting his personal belongings. That order remained in force at the date of the consent order to which I will refer in a moment, so that the factual situation was that the wife was in sole possession of the matrimonial home from April 1978 onwards. It was subject to a mortgage in favour of the Alliance Building Society. Your Lordships have not been told and it does not appear from the papers by whom the mortgage instalments had been paid prior to the presentation of the petition, but it does not appear ever to have been in dispute that the wife, as a beneficial joint tenant, was entitled to some share in the property or the proceeds of its sale. Notwithstanding that the cause had been transferred to the High Court upon the filing of the husband's answer, he applied on 17 July 1978 to the Brentford County Court for an emergency hearing of an application for an immediate sale of the property with vacant possession on the ground that he was out of possession, was paying rent for lodgings and was paying the whole of the outstanding mortgage instalments, the balance then outstanding being, it seems, some £6,400. His proposal at that point was that he should pay the wife £18,000 out of the proceeds of sale and should retain the balance himself after discharging the mortgage. That application was treated by the court as an originating application under section 17 of the Married Women's Property Act 1882 and a pre-trial review was fixed for 4 August 1978. Thereafter the husband consulted solicitors, who came on the record. A formal summons under the Act was filed and leave was given to file an amended affidavit in support. At this stage the husband, no doubt on advice, had abandoned his original proposal and was seeking simply a declaration of a joint beneficial interest, an order for sale, and an order for the division of the net proceeds between the parties in equal shares, together with certain relief in respect of jointly owned chattels which is immaterial for present purposes. Thus, at this point, the petition and the wife's claim for ancillary relief were proceeding in the High Court and the husband's separate application under the Act of 1882 was proceeding in the Brentford County Court. On 1 February 1979, however, the husband's answer in the matrimonial proceedings was struck out, a decree nisi was pronounced on the wife's petition, and an order was made for her to have the custody of Timur. Her outstanding application for ancillary relief was adjourned to chambers and subsequently transferred back to the Brentford County Court. On 2 July 1979, there was heard by the registrar of that court an application by the wife for interim maintenance, and an order was made for payment of £50 a month for the wife and £40 a month for Timur from 19 June 1979, the latter to continue until Timur attained the age of 17 years or until further order. At the same time leave was given for the decree to be made absolute. On 25 July 1980, the wife gave notice of the hearing on 20 October 1980 of her application for ancillary relief. At that time there were considerable outstanding arrears due to the wife under the order for interim maintenance.

6

I have set out this history in full because it is, I think, important that there should be borne in mind exactly what the matters in issue between the parties then were. So far as the husband was concerned, he was pressing for an order for the immediate sale of the property and an equal division of the proceeds. He was also seriously in arrears with his payments under the interim maintenance order. So far as the wife was concerned, she was in sole possession of the property and had the custody of Timur who was then aged 15 and was living with her. Her application for a periodical payments order, a lump sum order and a property adjustment order had not been dealt with and was to be brought before the court on 20 October 1980.

7

The parties duly appeared by counsel before the registrar on 20 October 1980, and on that occasion a consent order was made for the two applications to be consolidated and for the matter to be adjourned to 26 November 1980. Your Lordships know nothing of what negotiations then took place between the parties' respective legal advisers, but it is clear that some did take place because, on 26 November 1980, the date of the adjourned hearing of the now consolidated applications, the court received letters from the solicitors on both sides consenting to an order in the terms of an agreed draft, which had, it appears, been settled by counsel and was written out in longhand. The terms of that draft order (and particularly, in the light of the arguments addressed to your Lordships, the manner in which it was intituled) are important and must be set out in full. It was in these terms:

No. 78 D 06360 and No. 79 D 1177A

BETWEEN

DILYS ENID DINCH

and

ORAL...

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