Griffiths v Griffiths
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DUNN,LORD JUSTICE WATKINS,LORD JUSTICE PARKER |
| Judgment Date | 28 February 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0228-2 |
| Docket Number | 84/0086 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 February 1984 |
[1984] EWCA Civ J0228-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORWICH COUNTY COURT
Royal Courts of Justice
Lord Justice Dunn
Lord Justice Watkins
Lord Justice Parker
84/0086
MR P.A.C. SAPSFORD, instructed by Messrs Hallett & Co. (Ashford), appeared for the Appellant (Respondent).
MR J. HOLT, instructed by Messrs Fowell, Thorold & Prentice (Diss), appeared for the Respondent (Petitioner).
MR D. MATHESON, appeared for the Law Society.
This is an appeal from an order of His Honour Judge Binns sitting in the Norwich County Court on 29th November 1982 when he ordered a lump sum payment under section 23(1) (f) of the Matrimonial Causes Act 1973 for the benefit of the two children of the family. The main ground of the appeal is that the judge erred in principle in ordering a capital sum to be paid forthe benefit of the children when the children's father, the husband, was in receipt of Social Security and, having regard to his means, was not in a position to meet any order for periodical payments. It was said that it was wrong in principle in those circumstances to deprive him of part of his only capital asset, namely, his share in the former matrimonial home.
The history of the matter is that the parties were married in 1967. There are two children: Paul, born in 1969; and Nicola, born in 1972. The matrimonial home which was in the joint names of the parties was at Watton in Norfolk. The husband left in August 1980 and went to live with a Mrs Williamson in Ashford in Kent. Mrs Williamson, who is a widow, has three children, the eldest of whom is working and makes some contribution to the family finances. Her two younger children are aged fourteen and seven. She lives in a rented council house near Ashford which she is desirous of purchasing. The wife remained with the two children of the family in the matrimonial home. For the first six months after their separation she received supplementary benefits for herself and the children, but she then met a Technical Sergeant Capes of the United States Air Force who went to live with her in the matrimonial home and who took upon himself the support both of the wife and of the children of the family. The wife now has a child by Sergeant Capes born in April 1983, and they intend to get married, as do the husband and Mrs Williamson.
On 28th October 1980 the wife filed a petition under section 1(2) (b) of the Matrimonial Causes Act in which she claimed all possible financial relief both under sections 23 and 24. There was a decree nisi on 2nd March 1981. The custody of the children was committed to the wife, and the decree was made absolute on 16th April 1981. On 21st August 1981 the wife gave notice of an application for periodical payments and a lump sum for herself and the children and for a property adjustment order.
In September 1981 there was correspondence between the solicitors, starting off by the wife's solicitors writing to say that the wife would be agreeable for the matrimonial home to be sold and, after deduction of the mortgage and expenses of sale and so on, that the net balance should be divided equally between the parties. The husband's solicitors replied to that letter agreeing that the house should be sold and the proceeds divided equally on the basis that the wife would not herself be claiming periodical payments. They went on to say: "As to the claim for periodical payments for the children…until such time as he" (that is the husband) "is in receipt of a better income, it is for all practical purposes impossible for him to make any payments to speak of at all." They suggested that the application should stand over until the husband was able to make progress towards securing a livelihood for himself.
The wife's solicitors wrote back on 29th September 1981 saying that she would require a nominal order for herself, and then, dealing with the periodical payments for the children, they said: "Our instructions are not to let the application stand over. We will deal with the matter further in due course."
The application came before the registrar on 5th May 1982. He made a nominal order for periodical payments in favour of the wife and ordered that, upon the sale of the former matrimonial home, the husband should "pay or cause to be paid for the benefit of the children…a lump sum payment of £4,000 or one half of his share in the net proceeds of sale whichever shall be the smaller."
On 29th September 1982 the sale was completed and the completion statement shows that the total purchase price was £21,000. Then there are deductions in respect of the mortgage, expenses of the transaction and solicitors' charges, leaving £7,682, being the half share of the equity payable to each of the parties. The £7,682, the wife's share, was paid to her. In accordance with the registrar's order, half of the husband's share, namely, £3,841, was retained by the wife's solicitors for the benefit of the children and the other half was shown as being due to the husband. In fact he has, in the events which have occurred, received some £2,500.
The husband appealed to the judge and on 29th November 1982 the judge made the order to which I have referred. He upheld the principle that the husband should pay a lump sum for the benefit of the children, but he reduced it to a total of £2,750, being £1,375 for each child. It is against that order that the husband now appeals, and, as I have said, the principal ground of appeal was that the judge was wrong to order a lump sum payment in the circumstances of this case.
The appeal first came into the list on 15th June 1983 before a differently constituted court. It was adjourned and the court ordered that there should be further evidence, in particular as to the husband's prospects of employment, and also that evidence should be put before the court as to the intentions of the Department of Health and Social Security with regard to the payment of benefits to the husband having regard to his capital assets, and also having regard to the proposal of Mrs Williamson to buy her council house. The court also ordered that the husband was to obtain for the benefit of the court the views of the Law Society as to the enforcement or otherwise of their charge in relation to the husband's costs in various alternative circumstances, depending upon whether or not the judge's or registrar's order was upheld or whether the court ordered that there should be no lump sum payment at all. Following that order there was correspondence with the Department which is before the court. The effect of it is that if the husband has more than £3,000 by way of capital he will not be elligible for supplementary benefits, save that, if any of that capital is used for the purchase of a home for the husband, the Commission has a discretion as to whether or not, and to what extent, to pay supplementary benefits. So far as family income supplement is concerned, the Department points out that allotments for family income supplement are normally made for 52-week periods. The husband is in receipt of family income supplement at the moment. The present period ends on 15th March and, if there is any further application for family income supplement, he will be obliged to make a disclosure of any capital and effectively the same rules would apply as for supplementary benefit, but there is a rather complicated provision about interest which is contained in the letter. What I have said is intended to summarise the letter of 7th July 1983.
At the conclusion of the letter the Department pointed out that, in the event of either of the children receiving supplementary benefit, the husband would be liable, as a liable relative, to make a reasonable contribution. That would be a matter in which the Supplementary Benefits Commission would have the power to make application to the magistrates. It would be a matter for the discretion of the magistrates whether to make any and, if so, what order against the husband, and, in exercisng that discretion, following the case of Hulley v. Thompson, 1981, 1 All England Reports, 1128, the magistrates would be entitled to take into account the terms of any order against the husband made in the county court.
So far as the Law Society charge was concerned, the Law Society took the provisional position in correspondence that the charge would bite on at any rate part of the husband's half share in the matrimonial home, because in the events that have occurred he would have preserved that, the wife's application for a lump sum having been specifically directed to his half share in the matrimonial home. But, as Mr Matheson, who appeared for the assistance of the court and for whose assistance we are grateful, indicated, that is a matter which would not be finally decided by the Law Society until the order of this court was made and the Law Society would have had an opportunity of considering this order and deciding whether or not the charge did apply. It would then of course be open to either party, if they were so advised, to challenge that determination of the Law Society in the courts, but it is a matter which at this stage does not arise for decision.
The court in July further adjourned the matter to a three-judge Court of Appeal, and it is on that basis that it has come before us.
I now turn to consider the financial resources and obligations of the parties as required by section 25 of the Matrimonial Causes Act. The wife is wholly dependent on Sergeant Capes who supports her and the two children. According to an affidavit which we have, he has a net income of some...
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