Fielding v Fielding (Note)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAMP,LORD JUSTICE ORMROD,SIR JOHN PENNYCUICK |
| Judgment Date | 10 May 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0510-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 May 1977 |
[1977] EWCA Civ J0510-2
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
From: His Honour Judge Bailey, Manchester County Court. (Divorce)
Lord Justice Stamp
Lord Justice Ormrod and
Sir John Pennycuick
MR J. FOSTER (instructed by Messrs. Gregory Rowcliffe & Co., Agents for Messrs. Taylor & Buckley, Oldham) appeared on behalf of the Appellant (Respondent).
MR A.R.D. STUTTARD (instructed by Messrs. Gouldens, Agents for Messrs. Kirk, Jackson & Co… Manchester) appeared on behalf of the Respondent (Petitioner).
I will ask Lord Justice Ormrod to deliver the first judgment.
This is an appeal by a husband from an order which was made by His Honour Judge Bailey as long ago as 25 May 1976 at the Manchester County Court under which he awarded a sum stated in the order to be £2,965 to the wife, but it is agreed that the figure should be £2,465, under the Married Women's Property Act, 1882.
This court has said on a number of occasions, and will have to say it once more, that since the passing of the Matrimonial Proceedings and Property Act in 1970 it is of verylittle value to proceed under the Married women's Property Act 1882 after divorce. It simply adds confusion and trouble, and achieves nothing. This particular case is a perfect example. For some reason which is quite obscure both the learned registrar and the judge below concentrated entirely on the claim under the Married Women's Property Act, and virtually ignored the claim which existed under secs.23 and 24 of the 1973 Matrimonial Causes Act, with the result that now three courts have examined the not very complex accounts relating to two public houses, one the "Aqueduct" in Blackburn and the other "The Old Roof Tree" at Morecambe, which these parties ran together between the years 1967 and 1972,and have arrived at, I think it is fair to say, three quite different views as to the property rights of the spouses in relation to those not very large or complex assets. This all arises because under the Harried Women's Property Act the court has to determine property rights, and to determine property rights, strictly so called, between spouses is a notoriously hazardous and difficult operation and one which nowadays is not always but nearly always futile.
To add to the confusion and the difficulties in this case this marriage broke up as long ago as April 1972, and here, five years later, is the court trying to arrive at a fair financial settlement between these parties. It looks as if somebody must have spent a great deal of money on costs.
The brief facts are these. The parties married in October 1959, the husband was 39, the wife was 35. She had been married before and had two daughters by her former marriage. The husband was a bachelor. She had about £300 in capital at that time. The husband had a salary of around £1,500. He was in the textile trade. But he had a quite nice bit of capital which he had inherited from his family. He owned a bungalow and they went to live together in his bungalow, she was a wife who did a little work, but not very much, but she accumulated about £1,300 in a building society account up to 1967, and in November 1967 they went to run together the Aqueduct public house in Blackburn. I believe she ran it mostly on her own, single-handed at first, but from then on the husband and wife ran the public house. He paid the goings and put in the initial capital, which was entirely his own. They moved to The Old Roof Tree in Morecambe in July 1970,and in April 1972 the wife left. In May she filed a petition, and some time afterwards the husband filed a petition, and the divorce proceedings were appallingly protracted. The marriage was not dissolved until May 1975, when, not surprisingly, a decree nisi was granted to each of them. But as early as August 1972 the wife swore an affidavit in support of an application under the Married Women's Property Act for her property rights to be determined in relation to these two public houses, and a lot of other matters as well.
For some unfortunate reason, which is not at all clear, this matter did not reach the point of adjudication until 1976,when it came before the registrar in the first place. The whole of the argument before the learned registrar seems to have gone on the basis as to whether or not the wife was an equal partner in these public houses - that is, equal partner as to capital and profits - or whether she was a partner only insofar as profits were concerned. That issue was eventually determined by the registrar against her: he held that she was only interested in the profits, and there were no profits to distribute. So that she got nothing from the registrar. He simply brushed aside, so far as I can see from his judgment, her claim for a property adjustment order. He said this about it:
"I now turn to sec.24 proceedings. I need not reiterate what I have said about the Married Women's Property Act matters because the facts upon which I come to my conclusions are the same. There is really no capital at the end of the joint ventures to which the petitioner can be said to be entitled, especially in view of what she has already received and therefore I need go no further' than "to say that there will not be an order for a lump sum payment".
That is what he said.
The matter was then taken on appeal to the learned judge, and he dealt with it, as I have said, in May 1976. His judgment also goes entirely on the Married Women's Property Act claim. He held that she was entitled to half the value of The Old Roof Tree public house. He added some items for stock and sales and profits between the closing of the account and the actual final winding-up of that business, because in July 1972 the husband left it; and he arrived at a total figure for the...
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