Gibson v Archibald
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Templeman,Lord Oliver of Aylmerton,Lord Goff of Chieveley |
| Judgment Date | 19 January 1989 |
| Judgment citation (vLex) | [1989] UKHL J0119-1 |
| Court | House of Lords |
| Date | 19 January 1989 |
[1989] UKHL J0119-1
House of Lords
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Templeman
Lord Oliver of Aylmerton
Lord Goff of Chieveley
My Lords,
This appeal arises out of an action of divorce, at the instance of the appellant ("the wife") against the respondent ("the husband"). The parties were married at Glasgow on 13 April 1973, and there are three children of the marriage, two daughters and a son, born respectively on 13 January 1971, 27 November 1973 and 15 December 1975. The marriage finally broke down in August 1983 and on the 15th of that month the wife started proceedings for divorce on the grounds of irretrievable breakdown of the marriage occasioned by the husband's behaviour. The Lord Ordinary (Lord Kincraig) granted decree of divorce on that ground on 21 November 1985. Custody of the three children was awarded to the husband.
The wife claimed against the husband payment of a capital sum of £25,000. In the conclusions of the summons she also claimed a periodical allowance for herself, but at the proof she in effect abandoned that claim in respect that at the time the husband was unemployed and subsisting on social security payments. By a separate interlocutor of 21 November 1985 the Lord Ordinary awarded the wife a capital sum of £500. The wife reclaimed, but on 24 February 1988 the Second Division affirmed that interlocutor, the opinion of the court being delivered by Lord Dunpark. The wife now appeals to your Lordships' House.
At the date of the proof before the Lord Ordinary the husband and the wife were aged respectively 58 years and 49 years. The husband's only capital asset was the former matrimonial home, valued at £42,000, in which he resided with the three children. He had bought it in 1960 for £3000 with the aid of a mortgage, since paid off. At the time he was married to another woman. In the course of her evidence at the proof, the wife stated that in order that disturbance to the children might beavoided she did not seek immediate payment of a capital sum. Funds to meet it could only be raised by selling the house. She did, however, wish to be paid a capital sum after the youngest child had attained the age of 16 OR 17 years.
In these circumstances the Lord Ordinary, in his words "gave to the parties an opportunity of coming to an agreement with regard to the disposal of the house in the event of my finding [the wife] entitled to payment of a substantial capital sum, since I did not consider it appropriate to grant decree now for any substantial sum and supersede extract for six years." In the event, the parties did not reach any agreement. Thereupon the Lord Ordinary decided not to award the wife a substantial capital sum, because to do so would in his view be contrary to the interests of the children in respect that the husband would have to sell the house and move with them to other accommodation. He expressed himself as satisfied, however, that the husband would be able to realise a sum of £500 without selling the house, and he accordingly awarded the wife a capital sum of that amount, with extract superseded for six months.
In the course of delivering the opinion of the Second Division Lord Dunpark said:
"It is certainly not equitable that the husband whose conduct was solely responsible for the breakdown of the marriage should be left with a house worth £42,000 while the wife's contribution to the organisation of the home and the care of the children for a period of 12 years is only marked by a capital award of £500."
and later:
"We do not consider that the Lord Ordinary can be faulted in deciding that it was inappropriate...
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MT v MT (Financial Provision: Lump Sum)
...for a lump sum to prevent injustice: see Hardy v Hardy (1981) 2 FLR 321 and Davies v Davies [1986] 1 FLR 497; and in Gibson v Archibald [1989] 1 WLR 123 the House of Lords had referred to the wide and unfettered discretion of the court to arrive at an equitable result. In this case justice ......