Hedges v Hedges
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUSTILL,MR. JUSTICE THORPE |
| Judgment Date | 03 October 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J1003-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 89/0913 |
| Date | 03 October 1989 |
[1989] EWCA Civ J1003-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
HIS HONOUR JUDGE MAY
Royal Courts of Justice
Lord Justice Mustill
and
Mr. Justice Thorpe
89/0913
MR. P. RIPPON (instructed by Messrs Shoosmiths & Harrison) appeared on behalf of the Appellant (Petitioner).
MISS S. THOMAS (instructed by Messrs Hodson & Lines).
This is an appeal from a judgment of His Honour Judge May given in the Oxford County Court at a hearing by the learned judge of an application by the wife petitioner, Carolyn Hedges, for an order for periodical payments and for a lump sum order.
The marriage took place on 14th April 1983. The parties separated on 23rd November 1987. A decree nisi was pronounced during April 1988, and the decree was made absolute in May 1988. The petitioner is now 37 years old and the respondent 41 years old.
Before the marriage the petitioner, who had been brought up in Edinburgh, worked as a secretary in London. The respondent was and is an assistant master, teaching mathematics at Rugby School. His wife came to join him at the school in a house owned by his employers. She gave up her own employment in London in which capacity she was earning £5,800 per annum which, even in those days, was barely enough to live on. At first she continued to work full time, after marriage, as a secretary, but later changed to working on a part-time basis so as to give her more time to spend with her husband during the holidays. During this period when they were both earning the joint savings of the couple were around £200 per month.
Problems quite soon seem to have arisen within the marriage. They are not material, and I say no more about them. In the event, as I have said, the wife left the matrimonial home in November 1987 and, after first going to stay with her parents, moved to Edinburgh where she now lives in rented accommodation. An interim maintenance order was made in the sum of £200 during July 1988. Meanwhile the husband had purchased a house for £45,000 with the aid of a 90 per cent mortgage. The judge at the hearing accepted that the husband had bought this house to protect his position on a rising property market, partly as an investment and partly to protect his position lest he should lose his tied accommodation. The husband does not live there himself, nor does he rent it out. We thus have a case where the effective life of the marriage was four and a half years. The parties, though not in the very first flush of youth, were only on the border of middle age and were in good health. There were no children. The wife had been in employment and remains fully employed today.
It is convenient at this stage to look in very general terms at the position as regards capital, revenue and expenditure as it stood at the date of the hearing before the learned judge. Dealing first with assets, the respondent had three shareholdings which were valued as at September 1988 at £1,200. He had life assurance policies with surrender values of somewhat in excess of £3,100, and he had some modest balances with a bank and with a building society. In total these readily available assets amounted to rather short of £5,000. He had a car with a trade-in value of £3,400. This was a car which he did not positively have to own in order to get to his place of employment, which of course was nearby. There was a small sum attributable to the net disposable value of a modest wine cellar owned by the respondent and also there is to be mentioned a lump sum which was due to accrue in relation to the respondent's pension with his employers. I say that there is to be mentioned, because this pension will not actually become payable for some twenty years from now. It could not have been and it was not suggested that any share of this rather distant accrual was to be attributed directly to the petitioner. But it was urged upon the learned judge and it has been urged again before us that its existence represented an element of the respondent's wealth of which account should be taken. Speaking for myself, I note the existence of this sum but it seems to me that the time when it will fall to hand is so remote that it has little relevance except as a piece of background. So far as the wife's capital assets were concerned, they were too small to call for any detailed statement.
If one turns now to the question of revenue, we find that the husband's gross income, constituted partly by salary and partly be examination fees and some employment expenses coupled with a tax free council allowance in relation to his position as a councillor, came to about £20,150. After tax and national insurance, this yielded a net income of £1,243 per month. I should mention that in the light of an increase in the salary since the hearing in the Crown Court the net income is now of the order of £1,300 per month, an increase which barely matches the rate of inflation.
If one turns to the expenditure side of the husband's account, there are figures attributable to his motor car. The figure given is £209. An alternative figure of £309 as an expenditure item is proposed, the difference representing an element of depreciation. It seems better to me to work on the smaller figure. There are other items, of course, relating to personal expenditure, the cost of a housing deduction made from his salary by his employers, subscriptions and so forth. Most important in the listed monthly expenditures was a sum of £465 attributable to the mortgage payments relating to the house which the husband had recently bought. When these were all taken into account, a figure in the vicinity of £400 was yielded. It is possible to demonstrate that this may perhaps be rather high in the light of current figures, notably having regard to deductions which it is said should be made for gas, electricity and other charges. The husband's residence for the purposes of his employment being now in terms different from those which had originally been the case, I do not propose to enter into this today, because in my judgment it does not affect the outcome of this appeal.
So far as the wife's income was concerned, at the time of the hearing in the Crown Court it was £5,000 per annum gross, yielding £337.50 monthly. We know now, which of course the learned judge could not know, that after the hearing in the County Court the wife has been able to move from temporary employment into better paid employment at £8,000 per annum, which yields a net income of about £500. Against this there is the expenditure which the petitioner was actually incurring and also an alternative budget on the assumption that, rather than living in rented accommodation, she had succeeded in obtaining a mortgage for the purpose of buying her own flat. We need not enter into the details at all, but the monthly budget on the supposition of renting accommodation yielded a requirement of £700 per month. If one takes the mortgage alternative, the figure is said to be £815 per month. It is asserted for the husband that the mortgage figure is rather high, because it would have been possible for the wife, with a subvention from her father, to have borrowed rather less than the maximum permissible amount from a bank or building society. But, again, this kind of adjustment is in my judgment unlikely to have any impact on the way in which we approach this case. At all events, on the budget as projected by the wife, we see that in comparison with her income there is a shortfall.
The only other question on the figures which I ought to mention, and I will mention it only in passing, relates to the costs of the hearing before the learned judge. Naturally that was not an element in his calculations, but it is on occasion a factor which has to be looked at to see the practicalities of making orders for capital payments. In the event, the learned judge made no order for costs in the light of a Calderbank offer. Perhaps if this offer had been made earlier the course of this sad litigation would have been quite different. But, at all events, it seems to me at least that the impact of costs on the husband's financial position is not something which in the circumstances we ought to take into account.
Those being the primary facts, and I should say that there was really very little dispute about them at the hearing, the learned judge made an award of £2,500 to the petitioner by way of capital. This was explained by him as representing the loss of the widow's pension which the wife would have received if the parties had remained married, and it represented about half of the husband's available capital assets, and must presumably have required him to cash his life policies. In addition, the learned judge continued the payments order at the rate of £200 per month for a period of 18 months from the date of his order. It is from...
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