Hardy v Hardy
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD,LORD JUSTICE DUNN,MR. JUSTICE WATERHOUSE |
| Judgment Date | 10 June 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0610-2 |
| Date | 10 June 1981 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 81/0240 |
[1981] EWCA Civ J0610-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr. Justice Purchas)
Royal Courts of Justice
Lord Justice Ormrod
Lord Justice Dunn
and
Mr. Justice Waterhouse
81/0240
2241 of 1980
MR. H.R.A. MARTINEAU (instructed by Messrs Hancock & Willis, solicitors, London; London Agents for Messrs Hodgkinson & Tallents, solicitors, Newark) appeared on behalf of the Appellant (Respondent).
MR. A. H. WARD (instructed by Messrs Manches & Company, solicitors London) appeared on behalf of the Respondent (Petitioner).
This is an appeal and cross appeal from two orders made by Mr. Justice Purchas on 27th February of this year in the Family Division. He was hearing an appeal from Mr. Registrar Guest in ancillary relief proceedings. The wife appeals from that part of the learned judge's order by which he refused her application for an adjournment (and it is right to say an indefinite adjournment) of her application for a lump sum under section 23 of the Matrimonial Causes Act 1973. Having dismissed the appeal, the effect of the learned registrar's order was that the wife's application for a lump sum payment was dismissed.
The husband appeals from the order of the learned judge in respect of periodical payments to the wife and to the children, he having increased the learned registrar's order substantially.
It is a most unattractive story and, fortunately, not one that often comes before this court. In a sentence, it is a case in which the husband, and by inference his family, have sought to take advantage of every formal step that they can and to insist upon this case being dealt with on the most formal possible lines. It follows that the wife is entitled to take up as formalistic a position as she thinks right, and the court must deal with the matter similarly, on a formalistic basis, in the context of a case like this.
It is a very unusual case on its facts and it may not be a useful precedent; on the other hand it may be. The brief facts are these. The parties married on 25th June 1967. The husband was then 20 and the wife 26. They had two children, two girls born in March 1970 and January 1975 respectively, so they are 11 and 6. They live with the mother. Three weeks or so after the birth of the second child the father left the mother. I will call them husband and wife hereafter. They have never resumed cohabitation. The husband is the son of an extremely well-known bookmaker named Hardy, who is also a race horse trainer on a large scale. He is the second son and he has been working as, and is called, an assistant trainer, for his father. It is quite apparent that the father is an extremely rich man. He has two businesses—a bookmaking business and a race horse training business—both of which clearly are on a very large scale. The husband, working for his father as assistant trainer, receives at the present time the minimum salary payable under union arrangements for assistant trainers, of £70 a week, and it is upon that basis that the court is expected to deal with the financial provision for the wife.
The wife took no steps to dissolve the marriage with the result that in due course the husband filed a petition under section 1(2)(e) relying on five years' separation, and he obtained a decree nisi in July 1980. The wife then gave notice of her intention to apply under section 10 of the Matrimonial Causes Act, that is the section which provides in brief "that the court shall not make the decree absolute unless it is satisfied (a) that the petitioner should not be required to make any financial provision for the respondent" (which clearly does not apply in this case) "or (b) that the financial provision made by the petitioner for the respondent is reasonable and fair, or the best that can be made in the circumstances."
We are told at the Bar that the wife's solicitors, who practice in Nottingham, believe that the practice in the Nottingham County Court, dealing with section 10 applications, is to treat them as if they were applications by the wife for periodical payments, lump sum and/or property adjustment orders under sections 23 and 24. If that is the case the practice is manifestly wrong and requires to be revised. The two forms of relief are quite distinct, although of course they overlap.
As a result of that, when the matter came before Mr. Registrar Guest for the first time on 9th September 1980 he suggested to the wife's advisers that she should give a Notice of Application for ancillary relief so that the whole matter could be before him to be dealt with at one and the same time. There are many cases where that is a convenient course, but there are some cases where a distinction must be drawn between the powers of the court under section 10 and the powers of the court under section 23 or 24 if considerable injustice is not to be done to the wife. As a result of that suggestion the wife gave notice on 23rd September 1980 saying that she intended to apply to the court for an order that the petitioner do pay to the respondent during their joint lives such sum in respect of periodical payments and/or lump sum as the court thinks just, and for provision for the children. A fair amount of evidence was filed, some of which was remarkable, and the matter came before the Registrar on 11th November 1980. By the time the matter came before him for hearing, the evidence showed that the husband was receiving this salary that I have mentioned of £70 a week, he had been living rent free in a cottage on the property belonging to his father's company, and he had been working to all intents and purposes as an assistant trainer, but playing a very prominent part in the training establishment. He had apparently at that time (no doubt accurately) no capital assets. On the other hand he and his brother between them clearly had very substantial expectations on any view. I say "expectations"; subject, of course, to all the exigencies of parental testamentary dispositions which may sometimes go wrong, but looked at reasonably he had very considerable prospects sooner or later.
One of the more remarkable features of the case is that, at a rather late stage, one of the wife's advisers carried out a company search and discovered that the husband was a substantial shareholder in the bookmaking business run by his brother, Mr. Hardy. Various unusual documents appeared, not least of which was an affidavit by the husband in this case which said that, as a result of his wife's inquiries, he had discovered for the first time that he was a director of this company and held a substantial number of shares in the company. There was also evidence from an accountant, which in the circumstances was not challenged because there was not time, to the effect that the shareholding in this company, on the face of it a successful company, was valueless. Just how that could be was not investigated and I say no more about it. It is enough to put everybody involved in this case, in my view, on inquiry.
When the matter came before the learned registrar, the circumstances now being known fully to the wife, Mr. Martineau, who appeared for her, asked that his application for a lump sum should be adjourned generally, on the basis that it would not be possible for him to show on the evidence at present that it was a case for a lump sum, but he wished to reserve the wife's position so that she would be, or might be, in a position if she felt it right to do so, to make an application for a lump sum at a later date when the husband had some assets. That application was refused by the learned registrar, who then went on to consider the application for the lump sum which Mr. Martineau was extremely unwilling to make. The learned registrar dealt with it on the evidence that was then available, and dismissed it. He made an order for periodical payments at a very modest rate indeed. The order for periodical payments was £12 a week for the wife and £9 a week for each of the two children—an extremely modest order. The situation is one which, on any view, is extremely disturbing.
The wife continued for a time to live in a cottage which she and her husband had been living in, belonging to her father-in-law, but relations between them deteriorated and she had to move. She is now living in a rented house from the local Parochial Church Council. She has a protected tenancy in that modest house. She has been living on social security for a very long time. She got an order from the magistrates for the sum of £4 a week for each child some time ago and that is the extent of the support which she has received from this obviously wealthy family. (It is right to say that, in addition to that, the husband paid £7 a week voluntarily).
When dealing with the application for an adjournment, the registrar proceeded as though he were hearing a section 23 application for a lump sum, and directed himself on the lines of section 25 which requires him, among other things, to have regard to the 'income, earning capacity and other financial resources which each of the parties to the marriage has, or is likely to have in the foreseeable future', and he came to the conclusion that, "Although there is a very real expectation that the husband will become a wealthy man it is impossible to say there is any certainty about that". He commented on Mr. Martineau's application for an adjournment by saying:
"There is an attractive quality about it. One can foresee many difficulties. The application may be deferred for 15 to 20 years. A wholly different...
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