Edgar v Edgar
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD,LORD JUSTICE OLIVER |
| Judgment Date | 23 July 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0723-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 July 1980 |
[1980] EWCA Civ J0723-1
Lord Justice Ormrod
Lord Justice Oliver
In The Supreme Court of Judicature
The Court of Appeal
Family Division
MR. J. JACKSON, Q. C. and MR. N. WALL (instructed by Messrs. Sharpe Pritchard & Co., London Agents for Messrs. North, Kirk & Co. of Liverpool) appeared on behalf of the Appellant.
MR. R. JACKSON, Q. C. and MR. N. WILSON (instructed by Messrs. Raymond Tooth & Co. of London) appeared on behalf of the Respondent.
This is an appeal by a husband from an order made on 27th March 1980 by Eastham J. in proceedings for financial provision following a divorce. It is a wholly exceptional case on the facts, and this judgment must be read in the light of the strange and, in some ways, unsatisfactory state of the evidence.
The learned judge was dealing with applications under sections 22 and 23 of the Matrimonial Causes Act 1973, by the wife of an extremely rich husband for a lump sum and periodical payments for herself and four children, of whom she has the custody. The husband is a multi-millionaire, who is in a position to make a very large payment without liquidity problems. The main issue at the hearing was the husband's contention that the court should give effect to an undertaking by the wife, contained in a Deed of Separation, not to apply, after divorce, for additional capital provision, beyond that provided by the Deed, which had been fully complied with by the husband.
After hearing the evidence and argument at length, the judge decided that he could properly ignore the wife's undertaking, and so proceeded to assess the lump sum under the provisions of section 25 of the Act. He ordered the husband to pay the sum of £670,000 by 28th July, 1980, and upon payment of this sum:-
(a. The existing order for periodical payments to the wife and the children be discharged.
b. All other financial claims of the wife be dismissed.
c. The Deed of Separation, dated 1st April, 1976, be discharged.)
The order was made in this form with a view to producing a 'clean break' between the parties, notwithstanding that they have four children, in whose lives both are playing, and intend to play, as full as part as they can in the circumstances. The consent of the wife to the dismissal of her claim to periodical payments was not obtained. (The case of Dipper v. Dipper, decidedby this court on 5th March, 1980, was not brought to the attention of the learned judge). Nor, apparently, had she consented to the discharge of the order for periodical payments to the children, a very unusual, if not unprecedented, order in such circumstances.
The marriage took place on 23rd August, 1967, and the four children are aged 12, 9, 8 and 6. The marriage had run into serious difficulties by the Summer of 1975, and by October 1975, the wife had made up her mind to leave her husband as soon as arrangements could be made for her to do so. She was extremely anxious to retain the care end control of the children, but had no alternative accommodation and, without her husband's co-operation, had no means of providing an alternative home for herself and the children. The husband wished to keep the marriage going and the family together, and had made it clear to her that, he would not agree to her leaving with the children unless she had a proper and suitable home for them.
The wife consulted solicitors and, on 6th October, 1975, they spoke on the telephone to the husband's solicitors saying she wanted to leave and wanted a divorce. On 15th October, 1975, she had a conference with counsel, and on 16th October her solicitors wrote to the husband's solicitors confirming her decision, and setting out her requirements in detail. I will return to this and other letters at a later stage in this judgment. This letter, however, expressly stated that the wife was not asking for a full capital settlement at that stage. However, by 25th November, 1975, at the latest, the wife seems to have agreed that she would not ask for any further capital provision in the event of a divorce, and confirmed this in an interview with her husband's solicitor and her own solicitor on that date. On 5th December the husband's solicitors wrote a letter setting out in full proposed heads of agreement, including the following:-
"5. Your client agrees that she will not ask for, now or in the future, any capital or lump sum payment or provision pending, during or following any divorce proceedings, nor during the subsistence of the Deed of Separation."
The wife's solicitors sent a long, detailed letter on 15th December dealing with many points in the proposed terms, and in particular in reply to the paragraph quoted above, they wrote:-
"5. As you know our client has been advised not to agree this, but she has instructed us that she is prepared, subject to what we write in the final paragraph in this letter, not to claim now or in the future any capital or lump sum provision, with the exception that should legislation change the tax position regarding husbands paying wives maintenance as referred by you in your point 9, our client must reserve the right to claim a capital or lump sum provision to compensate her, and this must be clearly accepted by your client."
The final paragraph referred to, read thus:-
"Finally, and this is not intended in any way to be a threat, our client is not prepared to go on bargaining about the position. She has made her situation quite clear. As you will appreciate, if the matters do proceed in accordance with our client's wishes, she is giving up a very sizeable capital payment which she would otherwise, in both counsel's and on our view, receive. She has instructed us that if your client is not prepared to agree the points we have raised in this letter, then we are to proceed with the divorce as a matter of urgency."
By the time this stage in the marriage had been reached the wife was emotionally involved with another man, possibly with two other men, with one of whom she had admittedly committed adultery; the husband had committed adultery on many occasions with a number of women. Both of them were, therefore, in a position to file a petition immediately.
Negotiations, mainly involving details, continued between solicitors until the Deed of Separation was agreed and executed, by both parties, on 1st April, 1976. They were still living together, and continued to do so until November of that year, when the wife moved into her own house. Under the Deed, the husband agreed to purchase in the name of the wife a named house, or some commensuratealternative, to pay for alterations, to provide accommodation for the wife's mother, to buy the wife a motor car, and to pay £16,000 per annum less tax to the wife, and £5,000 per annum less tax to each of the four children. These were, substantially, the provisions for which the wife had originally asked in her solicitor's letter of 16th October, 1975. We were told by counsel that the present value of the capital provisions made for the wife, is approximately £100,000. In addition, the Deed contained a clause in these terms:
"8. The Wife ACKNOWLEDGES that on transfer to her of the said property referred to in paragraph 2 hereof and on payment of the sums referred to therein and in paragraph 4 hereof and always provided that no reconciliation between the Wife and Husband is effected she does not intend to seek any further capital or property provision from the Husband whether by way of ancillary relief in divorce proceedings or otherwise and in the event of a decree of divorce being granted she hereby agrees not to proceed with her claims for lump sum and property adjustment orders subject only to her right to make application to the Court for lump sum or property provision in accordance with paragraph 7 hereof if in the circumstances referred to therein the parties cannot reach agreement regarding alternative financial provision."
This clause, of course, represented the arrangements made between the solicitor solicitors in the relevant extracts from their letters, which have already been quoted.
It was subsequently discovered that the provision in the Deed for payment direct to the children of £5,000 per annum each was not effective for tax purposes. Accordingly, arrangements were made (to use neutral language) to replace this provision in the Deed by consent orders under section 27 of the 1573 Act (the wilful neglect to maintain section), which were effective for tax purposes.
On 3rd November, 1978, the wife presented a petition for divorce, relying on two years separation and consent. The prayer was in the usual form, asking for all forms of ancillary relief. Decree nisi was pronounced on 24th January, 1979. Notice of intention to proceed with the application for all forms of ancillaryrelief was given on 7th March, 1979, and it was supported by an affidavit of the wife which made it quite clear that she was claiming a 'substantial capital sum'. The affidavit referred to the contents of clause 8 of the Deed, and gave some explanation, but in very general terms of the wife's change of mind in relation to claiming further capital provision. I will refer later to this part of the affidavit in greater detail.
Turning now to the law, it is common ground that the principle laid down by the House of lords in ( Hyman v. Hyman 1929) AC 601, still applies. At page 64, Lord Hailsham L. C., said.
"However, this may be, it is sufficient for the decision of the present case to hold, as I do, that the power of the court to make provision for a wife on the dissolution of her marriage is a necessary incident of the power to decree such a dissolution, conferred not merely in the interests of the wife, but of the public, and that the wife cannot by her own convenant...
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