Elda Elizabeth Loader (Respondent (Petitioner) v Christopher John Loader (Appellant Jean Buttifant (Co-Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,MRS. JUSTICE BOOTH |
| Judgment Date | 17 June 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0617-6 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 June 1992 |
| Docket Number | 92/0777 |
[1992] EWCA Civ J0617-6
IN THE SUPREME COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BOURNEMOUTH COUNTY COURT
HER HONOUR JUDGE McKINNEY
Royal Courts of Justice
Lord Justice Purchas
Mrs. Justice Booth
92/0777
and
MR. W. H. WEBSTER (instructed by Messrs Jakobi & Co., London Agents for Messrs Jacksons, Fordingbridge) appeared on behalf of the Appellant (Respondent).
MISS A. RALPHS (instructed by Messrs Lester Aldridge, Bournemouth) appeared on behalf of the Respondent (Petitioner).
I will invite Mrs. Justice Booth to deliver the first judgment
This is an appeal by the husband (and I will refer to the parties as "the husband" and "the wife"), Mr. Christopher John Loader from an order of Her Honour Judge McKinney made in the Bournemouth County Court on 20th March 1991 in ancillary relief proceedings between the husband and the wife, Mrs. Elda Elizabeth Loader. The issue which is before this court, stated briefly, is whether the judge was right to order the husband to pay a lump sum of £50,000 to the wife or whether she would have been right to award any lump sum. It is the husband's case that the circumstances are such that he should not be required to make capital provision for the wife and that this is not a case where a clean break is appropriate. That is the husband's argument in this court, although (as I shall demonstrate) in the court below both counsel acting on behalf of their respective clients urged the judge to make a clean break order.
The material facts are not in issue and I take them from the judgment. The wife is an American citizen. She has lived in the United Kingdom since 1970. She had been twice married before this marriage. She has a family in the United States, including two adult children by a previous marriage and an elderly mother. The husband is English. He has had one previous marriage. That has left him, as I understand it, with no financial commitments to his former wife. In 1977 the husband and the wife met. The husband was then a garage proprietor and the wife herself was in employment. They married on 20th October 1979, the wife being then aged 42 and the husband 30. There are no children of this marriage. At the time of the marriage the wife owned property in Southampton, and she had business interests. She sold both those assets, receiving a total sum in the region of £12,700. The husband owned property in Romsey. He sold that and received proceeds of about £13,000, and I give the figures in this judgment broadly. The money was effectively pooled, as the learned judge found. The husband and the wife travelled for about a year and a half to two years in the United States. Then, in 1982, the husband was offered and accepted the post of transport manager in a family firm of which his father certainly was a member. The parties returned to this country at the end of 1982 and, in February 1983, in their joint names and with joint funds, purchased what was to be their matrimonial home, the property at 16 Whitsbury Road, Fordingbridge. A small mortgage was obtained but that is now discharged.
The marriage became unhappy and it is unnecessary to consider the reasons why. As a part of an attempted reconciliation, in 1986, the husband agreed to transfer his interest in the matrimonial home to the wife to be held on trust by her as to one half of the proceeds of the home to revert to him or to his estate in the event of her death. The transfer was never effected. The reconciliation did not succeed and, in April 1987, the husband left the matrimonial home. The wife filed a petition for divorce, obtaining a decree nisi in September 1987 which was made absolute in December of that year. On 10th August 1987 the wife made an application for ancillary relief in all its forms and, in October of that year, she obtained an interim periodical payments order in the sum of £350 per month or £4,200 a year. Neither party has remarried. The wife continues to live in the matrimonial home. The husband is living with the lady who was the co-respondent in the proceedings, Mrs. Jean Buttifant.
As to the financial positions of the parties, as they were before the learned judge (and I take them again from the judgment), the husband in October 1991 was still employed by the family firm of John Loader Limited, receiving a gross income of £19,165 per year, together with the use of a company car. His capital position was somewhat more complicated. His father had died but two days after the parties separated. As part of his inheritance under his father's will, the husband had a shareholding in John Loader Limited, which was assessed (and it was an agreed value) at £112,500. The judge found that those shares could only be disposed of if the husband left the company, that they would have to be first offered to other directors, one of whom was his sister, and that the shares could not be used to benefit the wife, although the judge held that they might benefit the husband at some time in the future. The husband had a one-third interest in a trust fund which was subject to a life interest of his stepmother (his father's widow) she being aged 61 and in good health. The fund was in the sum of £50,000. From the husband's point of view, of course, that was not an appreciating asset as the interest went to the stepmother as income. He also had a substantial shareholding in excess of 23,000 shares in a company known as Shering and Loader Limited. That company had for some time been in financial difficulties. There might be some realisation of that asset if a particular site could be sold, but the learned judge found that the value of those shares was entirely speculative and he did not put a figure upon them.
The husband also received, as his share of the father's estate, a sum of £33,000, which had already been paid to him, of which £30,000 was frozen pending the outcome of the hearing before the court below and an estimated further £50,000 would be due to him. He had, in addition, of course, his half interest in the matrimonial home. That property had an agreed value of £125,000, so his half interest was worth £62,500. He also had a half interest in a property at 23 Salisbury Road, Fordingbridge, which he had jointly purchased with the co-respondent. At the time of the hearing it had an agreed value of £130,000. It was subject to a mortgage of £75,000 and a bridging loan of £41,000. The repayments of interest, which were then being borne by the husband, amounted to £1,670 per month. There was, however, a trust deed executed between the husband and the co-respondent by which the co-respondent would receive the first £20,000 of the proceeds of sale, after discharge of the mortgage and the bridging loan but before distribution of the balance, in recognition of her relatively substantial contribution to the purchase of that property. The learned judge made a finding that, so far as the husband was concerned, he did not have a quantifiable interest in the equity, as the figures then stood. In addition he had smaller items of capital and an insurance policy with a surrender value in the region of £900, a car and a caravan which were valued at £7,500, and a joint account with the co-respondent in a building society of which his share amounted to approximately £1,000. As against that, the husband had substantial debts. He had a debt in respect of an overdraft on his personal bank account of £4,600. There was an overdraft on the joint account with the co-respondent of some £17,000, and a liability then for his legal costs of £6,000.
The position of the co-respondent, insofar as it was relevant for the court to consider it, was that she was a self-employed financial adviser with an income of approximately £7,500 but with her own liability for debts in the region of £4,000.
The wife's financial position was somewhat less complicated. She was a lady of 54 with, as the judge found, no formal qualifications. She had not worked during the marriage save for occasional jobs bringing in a fairly modest income after the separation. The judge found that her income was variable. It was never specifically quantified. In one passage of the judgment the learned judge put it at £112 per a year and at another point she referred to the total income of the wife, including the periodical payments which she was receiving from the husband as £5,000. That, in my judgment, matters not.
The capital position was that the wife had her half share of the matrimonial home of £62,500. She had the majority of the contents of that home and, rightly, no value was placed upon them. Her liabilities consisted of general debts to a total of £18,000 and legal costs which amounted to £15,000 at which the judge expressed herself, rightly, to be disturbed.
The judge found that the wife had no earning capacity. Not only is she without formal qualifications and training, though apparently she has some typing skills, but, more importantly, she suffers from allergies and sensitivities which necessitate medication and make it difficult for her to tolerate certain atmospheres. The finding of the judge was that the wife was unlikely to find regular employment or to improve her earning capacity above its present level, as she put it, and I find that to be somewhere in the region of between £100 to £500 or £600 and maybe possibly above that in the future. The wife's expenditure, as she assessed it in her affidavit sworn in 1990, amounted to some £208 per week. The learned judge made no finding as to that.
In the court below...
To continue reading
Request your trial