Elsie Elizabeth Charlotte Porter and Another

JurisdictionEngland & Wales
JudgeLORD JUSTICE RUSSELL,LORD JUSTICE ORR
Judgment Date31 October 1972
Judgment citation (vLex)[1972] EWCA Civ J1031-6
Date31 October 1972
CourtCourt of Appeal (Civil Division)

[1972] EWCA Civ J1031-6

In The Supreme Court of Judicature

Court of Appeal

Civil Division

On appeal from Order of His Honour Judge McCreery Southampton County Court

Before:

Lord Justice Russell

Lord Justice Buckley and

Lord Justice Orr

Between:
Elsie Elizabeth Charlotte Porter
and
John James Porter

Mr. CHRISTOPHER CLARK (instructed by Messrs Collyer-Bristow & Co., Agents for Messrs Lamport, Bassitt & Hiscock, Southampton)" appeared on behalf of the Appellant (Husband respondent).

Mr. RONALD WALKER (instructed by Messrs Bernard Chill & Axtell, Southampton) appeared on behalf of the Respondent (Wife Petitioner)

LORD JUSTICE RUSSELL
1

I will ask Lord Justice Orr to give the Judgment of the Court.

LORD JUSTICE ORR
2

This is an appeal by leave of the Judge against an Order made by Judge McCreery in the Southampton County Court on the 11th July, 1972, whereby, on appeal by the respondent, who is the former wife of the appellant, he increased from £800 per annum to £1,225 the amount of the periodical payments ordered by Mr. Registrar Proud on the 7th June, 1972, to be paid by the. appellant to the respondent.

3

It will be convenient in this Judgment to refer to the parties as "the husband" and "the wife". They were married in October, 1944. On the 12th May, 1970, the wife obtained a decree nisi of divorce on the ground of the husband's cruelty, and that decree was later made absolute. There is one child of the marriage, a daughter, who is of full age and married and does not make her home with either of the parties.

4

The wife's application to the Registrar was to vary an Order previously made by a different Registrar on the 3rd November 1970, for permanent maintenance to be paid by the husband at the rate of £600 a year. The circumstances of the parties at the time when that Order was made may be summarised as follows. The husband who is employed by B. O. A. C. as a flight engineer, was earning a net £230 per month, representing a gross income of £4,000 a year. The wife was also in employment, earning a net £36 per month, representing a gross income of £500 a year, and each spouse had savings amounting to some £1,800. The husband was living in lodgings and the wife in the former matrimonial home, "The Paddocks", Dibden Purlieu, Hampshire, in respect of which she was claiming an interest in proceedings brought by her under the Married Women's Property Act. She was occupying that houserent free and the husband was paying the rates amounting to some £70 a year and also the maintenance of the house, and it is common ground that the Order for the payment of £600 a year was on the basis that he would continue to make those payments, as in fact he did so long as the wife remained in occupation of the house.

5

On this material the Registrar, in November 1970, arrived at the figure of £600 above referred to, and there is no doubt, and it is not in dispute, that in doing so he took into account in the husband's favour that the wife would not be incurring any expenditure in respect of her occupation of the house and that, but for that fact, the Order made would have been larger than it was.

6

When the application to vary this Order came before Mr. Registrar Proud in June of this year it is common ground that the position of the parties had changed in two respects. In the first place, there had been a substantial increase in the husband's earnings, and also a small increase in the wife's. His gross salary had been increased from £4,000 a year to £5,370, and hers from £500 to £624. In the second place, the wife had left the former matrimonial home, having accepted £5,000 from her husband in respect of her interest in it, and had gone to live in another house, which she had bought, in the same village. The price of this house was £6,400, towards which she paid the £5,000 received from the husband and also some of her savings, and obtained a mortgage for the balance of £1,000 under the terms of which she makes monthly payments of £15 embracing both interest and capital repayment, and it has been accepted in this appeal that the interest element in these payments amounts to £60 a year. In addition, it is common ground that she pays the rates of £66 a yearand for the maintenance of the home £24, so that the total of her annual outgoings in respect of the house is £150. The husband has continued to live in lodgings, and the former matrimonial home is at present standing empty, but his evidence was that he intends to retire in January of next year and will then re-occupy the house. It was argued before the Registrar and the Judge that these circumstances disclosed not only an added burden of £150 net for the wife but also a benefit for the husband in that the former matrimonial home is available for his occupation and it was claimed that he should either have occupied it, and so saved the cost of living in lodgings, or alternatively let or sold it. To this argument, which was plainly not accepted by the Registrar or the Judge, we shall later return.

7

Before leaving the evidence in the case, it is necessary to refer to certain commitments undertaken by the husband to his bank. The sum of £5,000 which he paid to his wife in respect of her interest in the home was provided in part out of his savings and some of the proceeds of a legacy left to him by his sister, but in September 1971 he borrowed the balance of some £2,290 from his bank on the terms that he would make annual transfers of £70 per month to a loan account and that the bank should also transfer to that account at the end of the month any excess over £500 standing to the credit of his current account. He subsequently borrowed additional sums on the same loan account; a sum of £730 borrowed in December 1971 to enable him to purchase an increase of some £220 a year in his retirement pension, and further sums of £250 in March 1972 and £100 in the following month towards the legal costs of the divorce.

8

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