Duxbury v Duxbury

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE ACKNER,LORD JUSTICE STEPHEN BROWN,LORD JUSTICE PARKER
Judgment Date25 Nov 1985
Judgment citation (vLex)[1985] EWCA Civ J1125-1
Docket Number85/0756

[1985] EWCA Civ J1125-1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

ON APPEAL FROM THE HIGH COURT OF JUSTICE

(FAMILY DIVISION)

(Mr. Justice Reeve)

Royal Courts of Justice

Before:

Lord Justice Ackner

Lord Justice Stephen Brown

and

Lord Justice Parker

85/0756

Between:
Mary Hilary Duxbury
Respondent (Petitioner)
and
John Thomas Duxbury
Appellant (Respondent)

MR. JOSEPH JACKSON, QC. and MR. NICHOLAS WALL (instructed by Messrs Dickinson, Dees, Newcastle upon Tyne) appeared on behalf of the Respondent/Petitioner.

MR. ROBERT JOHNSON, QC. and MR. THOMAS CONINGSBY (instructed by Messrs Coward Chance) appeared on behalf of the Appellant/Respondent.

LORD JUSTICE ACKNER
1

On 1st March 1984 Mr. & Mrs. Duxbury's marriage was dissolved. It had lasted some 22 years. They had three children, the eldest two are now over 21 and both are working, living away and are self-supporting. The youngest, a boy, is over 20 and, when the matter was before the learned judge, he was at York University (I assume probably in his last year). He, too, is well provided for, as is his brother and sister, by reason of a family trust which was executed by Mr. Duxbury as far back as 1965.

2

The application which Mr. Justice Reeve heard and determined, and against which Mr. Duxbury now appeals, was for ancillary relief after the dissolution of the marriage. Mr.Duxbury is a wealthy man and he fairly and frankly accepted that his former wife was entitled for the rest of her life to enjoy a very comfortable, and even luxurious, lifestyle. Mr. Johnson, who appeared on his behalf, accepted before Mr. Justice Reeve in terms that they had lived like millionaires, as indeed they were entitled to, since Mr. Duxbury is a millionaire.

3

It was common ground that one of the properties that he owned, Lowfield Farm, Threshfields, Skipton, North Yorkshire, valued at £110,000 and its contents valued at some £40,000, which is where Mrs. Duxbury has lived since 1981 and where the couple were living in September 1982 when he left, should be transferred to her.

4

The issue in this appeal is concerned with the lump sum capital of £600,000 which, in addition to the transfer of that property, the learned judge ordered should be paid by Mr. Duxbury. As to this figure, there is a considerable measure of agreement. Mrs. Duxbury had an overdraft of £51,000 and she badly needed to replace her car. Deducting these two items from £600,000, the resultant figure is £540,000 and, according to expert evidence which has not been challenged before us, this sum is required to produce over the assumed future expectation of life of Mrs. Duxbury of 35 years, she being at the date of the hearing 45 years old, an income which is spendable (that means after tax) of £28,000 per annum approximately. When I say that this sum is required, resort is to be made both to the income which it can produce and to the capital so that over the 35 years she can thus maintain herself, the assumption being—and it is all theoretical—that at the end of the 35 years the whole of that fund will have been spent.

5

That figure of £28,000 was largely the result of looking at the case of Preston v. Preston [1982] Fam.Div.17, a case where the circumstances were somewhat analogous and where the sum of £20,000 was taken to be the right figure to produce the luxurious standard of living which was considered to be appropriate. By adding an inflation factor since 1982, the resultant figure was £28,000.

6

The essential issue in this case is simply this: should the learned judge in the circumstances have made a substantially smaller lump sum award, or a substantially smaller lump sum award, coupled with an order for periodic payments, because of the possibility that Mrs. Duxbury might in future marry Mr. Black with whom she was now living?

7

Mr. Duxbury's attitude was recorded in the judgment as follows:

"…… he finds it repugnant if the wife were to die early, leaving an appreciable part of such lump sum, that the residue might end up in the hands of Mr. Black. Secondly, he feels that if the wife were to dissipate by extravagance or otherwise the whole of the lump sum awarded, he would be morally bound to make further provision for the mother of his children to save her from destitution."

8

With regard to his latter consideration, of course what he does and does not do in the event, should it occur, of his wife dissipating the lump sum is a matter entirely for his discretion, because it is well established that a lump sum order is made once and for all.

9

With regard to his repugnance, this was founded on a highly speculative basis. It made many assumptions. It first of all assumed that Mrs. Duxbury would not survive Mr. Black. True, there is an age gap of some 14 years, he being 32 years of age. Secondly it assumed that she would not live as long as her ordinary expectation of life—and there was no suggestion that she was in any way in ill health. Thirdly it assumed that the association would still be continuing at her death; and fourthly it assumed that she would leave the whole, or a substantial proportion of what, if anything, was remaining from the lump sum, to Mr. Black—a situation involving so much speculation that understandably it was not relied upon before the learned judge as a basis for his contentions by Mr. Johnson, nor has it been relied upon before us.

10

Before dealing with Mr. Johnson's submissions, it would be convenient to make a short reference to the parties and their financial circumstances, and I seek to summarise from the admirable summary made by the learned judge. Eighteen months before the marriage the husband's father died, and at that point the husband took over his father's position as managing director of Magnet Joinery Ltd., and he also inherited his father's shares in that company.

11

The business offices of that company were in Keighley in Yorkshire. The parties made their first matrimonial home in Bradford. Then they wanted a larger house when the children were born and in 1965 they moved to another house at Bramhope, near Leeds.

12

In 1971 Mr. Duxbury bought a large property, which has been called the Lanton Estate. It is in the northern part of Northumberland. It consisted of a house and some 1400 acres. He bought that house to a considerable extent for tax reasons and also for capital appreciation, and it proved a very wise investment. Between 1971 and 1976 the family kept a home going in Keighley; Lanton was only used for relatively short periods as a residence.

13

In 1975 there took place a merger between Magnet Joinery Ltd. and another company. That formed a company called Magnet & Southern plc. The husband became joint managing director and deputy chairman of that company. He will progress to being chairman in April 1985, and we assumed that that has occurred by now. In 1976 the house in Yorkshire was sold and Lanton became the only matrimonial home.

14

In the Spring of 1981 an estate which was immediately contiguous to the Lanton Estate, called the Akeld Manor Estate, was purchased by the children's trust. It is about this time (ie. 1981) that the marriage started to go wrong. Until then it appears to have been a thoroughly normal and happy marriage. It was at that time that the wife discovered that the husband was having, and had for some time had an affair with a Mrs. Owen. It transpired that he had set her up in some dressmaking business, although that business has now been sold.

15

In the Winter of 1981 he purchased Lowfield Farm, to which I have already made reference.

16

After the husband left, the wife started proceedings for judicial separation. Mr. Duxbury filed an answer and a cross-petition in which he prayed for divorce. The wife then committed adultery with Mr. Black, to whom I have referred, and she and Mr. Black cohabited at Lowfield from March 1983. Mr. Duxbury was living with Mrs. Owen at a house called Homestead, Running Beck, near Ilkley, and he and Mrs. Owen intended to marry, and may indeed now be married. Mrs. Duxbury told the learned judge that, although she was living with Mr. Black, she had no immediate intention of marrying him. Whether she will, or will not, as the learned judge observed, is clouded with uncertainty.

17

The learned judge summarised a number of matters. Firstly, that Mrs. Duxbury brought no capital into the marriage and during the course of the marriage was at no time engaged in any paid employment. She gave evidence to the effect, and it was not challenged, that it would in the circumstances have then been considered socially quite unacceptable for Mrs. Duxbury to have gone out to work. Secondly, Mr. Duxbury conceded that during the marriage his wife had done all that was required of her as a wife, mother and hostess, and he is appreciative of what she did during the 20 or so years of cohabitation. Thirdly, Mr. Duxbury was a very hardworking and successful businessman, who greatly improved the financial position of his family to their great advantage. Fourthly, that it was common ground that when living together, the whole family lived in a very luxurious style. And lastly (and this is of importance), it was agreed that the learned judge should not be troubled by any allegation of conduct by one spouse against the other.

18

I have already referred to the fact that Mrs. Duxbury at the time of the hearing had an overdraft of £51,000. She had no capital. Her own assets were some furs and jewellery of a relatively small value.

19

Lanton Estate was on the market and had been purchased, subject to contract, and the sum which it was anticipated would be the net proceeds was agreed to be £1,505,000. In addition, there were further assets to be taken into consideration including, of course, a...

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