Doherty v Doherty
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY,LORD JUSTICE ORMROD |
| Judgment Date | 19 March 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0319-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 1975 |
[1975] EWCA Civ J0319-3
In The Supreme Court of Judicature
Court of Appeal
(Appeal of Respondent Husband from Order of Mr. Justice Dunn, London, dated February 27, 1975.)
Lord Justice Buckley and
Lord Justice Ormrod
MR A. EWBANK, Q.C. and MISS A. RYAN, (instructed by Messrs. Cecil Altman & Co.) appeared on behalf of the Appellant (Wife).
MR N. MEDAWAR. (instructed by Messrs. Kennedy Ponson by & Co.) appeared on behalf of the Respondent (Husband).
I will ask Lord Justice Ormrod to deliver the first judgment.
This is an appeal from an order made by Mr. Justice Dunn on the 27th February, 1975, dismissing a wife's application for financial provision or adjustment of property order under Section 23 and Section 24 of the Matrimonial Causes Act 1973. The learned judge dismissed the application on the ground that in the particular circumstances which have arisen in this case he considered that the court had no jurisdiction to entertain the wife's claim.
The background of the case can be stated quite shortly. The parties were married in 1949. They separated in 1971 when the wife left. So that it was a long marriage extending over 21 years. There are three children of the marriage, two of them grown up, and a boy, Karl, who is severely disabled with spina bifida and is living with his father. The husband filed a petition on the 1st November, 1972, on the ground that the wife had behaved in such a way that he could not reasonably be expected to continue to live with her, and the main basis of that petition was an alleged association by the wife with another man. That petition was undefended, and the decree nisi was pronounced upon it on the 12th February, 1973, followed by the decree absolute on the 28th March, 1973.
The wife did not file an answer, but she did file an acknowledgment of service, and that acknowledgment of service indicated her intention to apply in due course for periodical payments and for a lump sum provision (now under Section 23 of the 1973 Act). But she did not indicate at that time an intention to apply for a settlement or transfer of property order. On the 18th February, 1974, her solicitors wrote to the respondent's solicitorsclaiming a 30 per cent. interest in the former matrimonial home. That has been the substance of her claim from then onwards. The letter of the 18th February was written because it had come to the notice of the wife's solicitors that the husband was negotiating for the sale of the former matrimonial home, and they were anxious to preserve the wife's positions in fact they asked for an undertaking that he would not dispose of the proceeds of sale until a order of the court was made in the matter. In the event, by letter of the 9th February, the husband's solicitors declined to give the under-taking on the basis that there was no need to do so because the wife's claim was limited to the extent of one-half of the value of the former matrimonial home. That home was at 57, Lewes Road, North Finchley, and it had been bought in 1959 In the husband's sole name for £3,500, carrying a full 100 per cent, mortgage which the husband obtained through the bank for which he worked. It is said that the equity of the house is now worth something in the region of £12,000.
On the 1st March, 1974, the wife, through her solicitors, served the first of her two notices of application. That notice reads as follows: "Take notice that the Applicant intends to apply to the Court for a Declaration of her interest in the property 57 Lewes Road Finchley N.12. a transfer of property Order to her of the matrimonial home at 57 Lowes Road aforesaid and any further Order which the Court may see fit to make." It will be observed that there is no reference in that notice to a lump sum, which she had mentioned in her acknowledgment of service.
On the 22nd April it was followed by another notice issued by the wife's solicitors which reads as follows: "Take notice that theRespondent intends to apply to the Court for maintenance for herself and any further order which the Court may see fit to make." It will be observed that in those two notices four different claims are made: the first for a declaration of her interest in the property 57 Lewes Read, which was obviously a confusion with a Married Women's property Act application; secondly, for a transfer of 57 Lewes Road; thirdly, for any further order which the court might see fit to make; and fourthly, for maintenance, a term which had become more or less obsolete with the passing of the Matrimonial proceedings and Property Act 1970, So, in spite of four attempts, the actual phrase "a lump sum" had been omitted.
On the 13th May, 1974, the parties attended before Mrs. Registrar Butler-Sloss for directions. She made the usual order for affidavits of means, and so on, and headed the order with the words, "Upon hearing the solicitors for the Petitioner end Respondent on the Respondent's application for a lump sum and under Section 24 of the Matrimonial Causes Act", and so on. It is said that on that occasion before Mrs. Registrar Butler-Sloss a clerk in the wife's solicitors' office who attended the hearing indicated that the wife was not really pursuing a claim for a transfer of the former matrimonial home, but that what she wanted, in effect, was her share in cash, and no doubt that led the learned registrar in due course to head the order as I have indicated.
There followed two letters. On the 16th May, 1974, the husband's solicitors wrote to the wife's solicitors in these terms: "At the hearing before Mrs. Registrar Butler-Sloss on the 13th May your representative indicated that your client would not actually be seeking a transfer of property order in respect of her allegedinterest in the matrimonial home but purely financial compensation and we shall be grateful if you will please confirm that that is so." The wife's solicitors replied to that on the 18th May, 1974: "We refer to your letter of the 16th inst. Perhaps our clerk did not express himself properly. What our client is seeking is a declaration that she has a fifty per cent interest in the property and the payment to her of such per cent as she is awarded of the equity obtained after the sale of the property, which we understand is at the moment being negotiated. We await to receive from you your client's Affidavit in reply as soon as possible." Again, in my view, they make her position reasonably clear, but still do not use the words "lump sum".
Thereafter the husband proceeded with the sale of 57, Lewes Road, and he also proceeded to buy himself another property at Westcliffe to which he moved some time in the summer of last year. The sale of 57, Lewes Road was completed on the 29th November, 1974. Two other dates are material. The husband re-married on the 29th March, 1974, and the wife re-married on the 9th November, 1974.
When the matter came before Mr. Justice Dunn, Mr. Medawar, who appeared for the husband on that occasion, argued, first, that there was no application for a lump sum order under Section 23 of the 1973 Act before the court; and secondly, that the wife had indicated that she did not intend to claim maintenance (a letter of the 23rd September, 1974, to that effect had been written by the wife's solicitors); and also that she had indicated that she did not now claim a transfer of property order, the reason being that the property had already been sold. Mr. Medawar then argued that it was too late for the wife to file a notice of application for alump sum, because having re-married she was caught by Section 28 (3) of the 1973 Act, which reads as follows: "If after the grant of a decree dissolving or annulling a marriage either party to that marriage remarries, that party shall not be entitled to apply, by reference to the grant of that decree, for a financial provision order in his or her favour, or for a property adjustment order, against the other party to that marriage." Mr. Medawar therefore contended that there was no effective application before the court. He further argued that the position was not saved by the fact that in both of the notices of application which the wife had filed there was reference to "such further orders as the court might see fit to make."
The judge, having heard the argument (and it is right to say, I think, that the wife's counsel at that time was taken somewhat by surprise by this submission), upheld Mr. Medawar's submissions and came to the conclusion that he had no jurisdiction to entertain any application by the wife for those reasons. He also held that in the circumstances the court had no Jurisdiction to make any amendments to those notices, or either of them, which would put the wife's position right.
It is plain to my mind that a considerable muddle occurred in the wife's solicitors' office, in that they did not, strictly speaking, specify the precise relief which the wife was claiming. Rule 68 of the Matrimonial Causes Rules provides in relation to applications for ancillary relief that any application by a petitioner or by a respondent who files an answer shall indicate in that pleading the relief that he or she proposes to seek. Rule 68, sub-rule (1) distinguishes between an order for maintenance pendingsuit, a financial provision order and a property adjustment order. It does not do any more than require the applicant to make the application in the petition or answer, as the case may be. If any omission is made in that respect, then subsequently the petitioner or the respondent, as the case may be, may apply to the court for leave to add a further application for different ancillary relief. If so advised.
Then by sub-rule (3) the situation is provided for where no answer is filed by a respondent. Sub-rule (3) reads: "an...
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