Foley v Foley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EVELEIGH,LORD JUSTICE WATKINS,SIR DAVID CAIRNS |
| Judgment Date | 18 May 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0518-1 |
| Date | 18 May 1981 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 81/0169 |
[1981] EWCA Civ J0518-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (Civil Division)
(On appeal from Mr. Justice Balcombe sitting in the Family Division)
Royal Courts of Justice
Lord Justice Eveleigh,
Lord Justice Watkins
and
Sir David Cairns
81/0169
No. 18159 of 1976
MR. JOSEPH JACKSON, QC, and MR. PETER WARBURTON-JONES (instructed by Messrs. Heald & Nickinson) appeared on behalf of the Appellant (Petitioner)
MR. ROGER GRAY, QC, and MR. ISAAC JACOB (instructed by Messrs. Elfords) appeared on behalf of the Respondent (Respondent).
( )
In this case the wife claimed a lump sum and agreed that her claim for periodical payments should be dismissed. The learned judge awarde her the sum of £10,000, ordered that her application for periodical payments should be dismissed and also ordered that there be a payment of £7.50 per week to the son D'Arcy until he attained 17 years of age. He also ordered that the husband should pay the wife's costs up to but not beyond the 8th October 1980.
The husband was 52 years of age at the date of the hearing in December of 1980 and the wife 40. The wife was French. She came to England in 1960. She was a trained hairdresser. On the 2nd May 1961 she married a Mr. Nunn in Edinburgh. It was a marriage of convenience. She never lived with Mr. Nunn, but in 1962 she started to live with Mr. Foley, who was himself a married man. In March 1963 a daughter Natasha was born. At first Mr. Foley denied parentage but he later accepted her as his child. In 1963 Mr. Foley's marriage was dissolved. On the 26th February 1966 the son D'Arcy Lord Foley was born. On the 11th June 1969 a son Carl was born. On the 8th August 1969 the parties married. In 1974 they separated. In December 1976 there was a decree nisi and in 1977 the decree was made absolute. Mr. Foley married again in October of 1977.
The husband had an unusual career with various occupations. He was described as a bullion dealer, a firearms dealer, a dealer in antiques. He and the wife lived well during the period of their cohabitation and the period of their marriage. At first they lived in a mews flat at 12 Pindock Mews, London, W.9. In 1972 they moved to a spacious flat in Ashworth Mansions, London, W.9. That was a rented flat and the wife now lives there. In 1959, before meeting his wife, Mr. Foley bought a freehold property, No. 55 Upper Montague Street, London, W.1., for £5,250. He and his first wife converted the ground floor to a sandwich bar and they let it and it remains let. The top two floors were in a bad condition. They were let, however, on controlled tenancies. In the mid-1960s the second Mrs. Foley, who was, of course, not at that date married to Mr. Foley, helped in the renovation of the upper floor of that property and Mr. Foley spent some £4–5,000 on improvements. The wife (and I shall call her "the wife" for the purposes of this judgment) helped in furnishing those flats and in the decoration and she collected the rents when they fell due.
Today, as the learned judge has found, the wife is an attractive woman, who dresses well. She is employed as a hairdresser in the Edgware Road at £75 a week and the learned judge estimated that she received tips of about £15 a week. She lives in the flat and she has the furniture. The learned judge made this finding, that the wife will be able to maintain the style of life that she has enjoyed over the last few years for some years to come. He assessed her capital at £10,000 and this was jewellery, paintings, a fur coat and some cash—her current realisable assets, as the learned judge called them. The two boys—because the daughter, it will be appreciated, was of responsible years—at first lived with the husband but in 1980 D'Arcy went to live with the wife.
As to the husband, he was in arrears for maintenance to his first wife and the learned judge found that his free assets did not exceed his debts. He had the property No. 55 Upper Montague Street, which was valued or, as the learned judge found, was worth £62,500 after allowing for capital gains tax. At the time of the hearing the husband was not earning. It is said that he had hypertension and back trouble. The learned judge accepted that he was indeed not earning and was unable to work certainly at that time. However, it seems that he regarded the husband's condition with some scepticism, but he made no positive finding as to what the husband's future prospects were. Having said that, it is quite clear from his judgment that he did not regard them as goc from a financial point of view. He said that the present wife was the bread-winner. She is a nurse and a lady with some veterinary knowledge. The husband and the present Mrs. Foley have in mind buying a smallholding in the country and running that. As I have said, the learned judge came to the conclusion that the proper sum to award the wife was £10,000.
The wife now appeals and the first ground of her appeal is to the effect that the learned judge failed to take into account the period of cohabitation, that is to say, the period when the parties were living together before the marriage. It is said "the learned judge was wrong in law in that he held that he should only take into account the five years of actual marriage, whereas the parties had cohabited between 1962 and 1969 and (a) the three children of the family were born during the said seven year period of cohabitation and (b) the learned judge had found that the petitioner was at all times a 'good mother and housewife' and had helped the respondent with the renovation and management of the house at 55 Upper Montague Street, which house had not only provided significant income from lettings but also, by the time of the hearing, constituted the most substantial family asset; (c) the petitioner had helped the respondent in his business activities".
It was further pleaded that the learned judge was wrong in holding that one-third was not an appropriate starting point for computing the appropriate lump sum. The notice of appeal goes on to say, "On the figures of disposable capital found by the learned judge an application of the 'one third' principle would have given the petitioner £14,000 instead of £10,000". Then the notice of appeal specifies certain matters of fact which it is said should have influenced the learned judge's judgment to be more favourable to the wife. It is not necessary to go into those in detail.
The gravamen of the criticism of the learned judge was that he failed to take into account or give sufficient weight to the period of cohabitation. It is, therefore, necessary to see what he in fact said in that regard. He said: "The first question I have to decide is: what length of marriage do I take? I have already given the facts; that they started living together in 1962 when each was married to somebody else. They lived as a family unit and did not get married until 1969, and the marriage broke up in 1974. In the case of Campbell v. Campbell (1976) Fam. 347 the then President, Sir George Baker, said this (at page 352-E): 'Mr. Sleeman attempts to persuade me that the 3 1/2 years of pre-marital cohabitation should be taken into account in assessing the length of the marriage. The way he puts it is: "She was for 3 1/2 years performing wifely duties before marriage". Now I entirely reject that argument. Mrs. Campbell was then a married woman with a large number of children, most of them in care, living with a youngster. There is an increasing tendency, I have found in cases in chambers, to regard and, indeed, to speak of the celebration of marriage as "the paper work". The phrase used is: "We were living together but we never got round to the paper work"...
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