Hepburn v Hepburn
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS,SIR EDWARD EVELEIGH |
| Judgment Date | 21 June 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0621-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0526 |
| Date | 21 June 1988 |
[1988] EWCA Civ J0621-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EASTBOURNE COUNTY COURT
(HIS HONOUR JUDGE LOVEGROVE)
Royal Courts of Justice
Lord Justice Butler-Sloss
and
Sir Edward Eveleigh
88/0526
No. of Matter 1979 D 352
MISS SUSAN SOLOMON (instructed by Messrs. R.E. Mitchell & Co., Solicitors, Hastings, East Sussex TN34 1DJ) appeared on behalf of the Respondent (Appellant).
MR. P. DUCKWORTH (instructed by Messrs. Mayo & Perkins, Solicitors, Eastbourne, East Sussex BN21 4RP) appeared on behalf of the Petitioner (Respondent).
This is an appeal by the respondent from a judgment of His Honour Judge Lovegrove, Q.C., given on 9th June 1987 in the Eastbourne County Court. It was an appeal by leave of the learned judge dated 30th June 1987 in respect of an application to vary periodical payments, by way of appeal from the Deputy Registrar, who heard the case on 2nd February of last year. The parties were married on 7th March 1970; there is one daughter, Catherine, born on 24th June 1970. The parties separated late in 1979 so it was not a particularly long marriage. The decree nisi was pronounced on 17th January 1980 and the decree absolute on 26th March of the same year.
For convenience I call the parties husband and wife, although of course they have been divorced now for over eight years. The husband is 49 and the wife is 40.
On 25th March 1980 there were consent orders in relation to the wife and the child of the family. The wife received periodical payments of £6,500 a year and a lump sum effectively of some £55,000, together with a further £10,000 to be paid over a number of years. There were also adequate payments for the daughter, who has always been educated privately at the father's expense.
With the money, which was a computation of half of the value of the matrimonial home, the wife bought a house for herself in Eastbourne. On 2nd February 1987 the cross-applications for variation of periodical payments were based on the wife's wishing to increase the sums paid by the husband, and the husband applied for a discharge of the order, not on the basis of his inability to pay because, as the judge found, he is a man who is in a financial position to be able to pay any reasonable sum by way of periodical payments. His objection, and his reason for the application, was the cohabitation of the wife with another man. So far as the daughter was concerned there was a variation upwards of her maintenance, with which this court need not be concerned.
The Registrar discharged the wife's periodical payments under the order made on 25th March 1980; there was an appeal from that order to His Honour Judge Lovegrove. On 12th June 1980 Judge Lovegrove allowed in part the appeal against the Registrar's order and substituted a nominal order for periodical payments for the discharge of the order by the Registrar. That was for joint lives until remarriage or until further order. There is an appeal against the nominal order to this court. There is no appeal by the wife against the learned judge's refusal to make an increased substantive order, or indeed against his decision not to reinstate the order of £6,500, which had been discharged by the Registrar.
The facts in regard to the wife's relationship with the other man, Mr. Gratwick, quite shortly are as follows. Since about Christmas 1980, only some months after the husband and wife parted, Mr. Gratwick and his two children moved into the house bought by the wife after the divorce. The wife does not want to marry Mr. Gratwick; she is, however, involved with him in a number of ways, firstly that they cohabit and also she is involved in some of his business transactions, or has been, and has made her life very much connected with his. Indeed, the learned judge said at page 28 of his judgment, after having dealt with their cohabitation of over six years, to all intents and purposes as man and wife, that their finances, their interests and other aspects of their lives were closely intermingled.
The learned judge did not hear any evidence from Mr. Gratwick but he accepted, and nobody has challenged it, the evidence the wife gave about him. That was that he wanted to marry her; that they were living together but, as I have already said, she did not want to marry him. He is a man who obviously takes an interest in reasonably expensive boats, and when he and his wife parted he had a boat worth some £20,000, which he sold; he ordered a boat to be built which cost some £50,000 two and half years after he and the wife had started to live together; he had certain financial difficulties in his business itnerests, no doubt at the same time as he was paying for the building of the boat, and the wife raised money on the security of her house, transferred the house into the joint names of herself and Mr. Gratwick and placed some £25,000 to the use of Mr. Gratwick for the purposes of his business. She does not appear to have placed herself in such a position that she could easily get this money back. She and Mr. Gratwick live in what was seen by the judge—and I do not think anybody would disagree—a rather comfortable, possibly rather an extravagant, lifestyle for people neither of whom is particularly wealthy.
Since the order of the Registrar in February of last year, which left the wife with no maintenance from the husband, she found a job at some £5,500 a year. The learned judge took the view that there should be a nominal order and, as I have said, that is the sole matter which is the subject of appeal to this court.
Miss Solomon, in her careful and excellent submissions to us, made a number of criticisms of the judge's approach to this case and of the order which he made. According to her skeleton argument, which for my part I have found extremely helpful, as indeed I have found the chronology, she criticised the fact that the judge gave no proper reasons for the exercise of his discretion; I shall deal with that point in a moment. Miss Solomon makes three major points: that the wife had a capacity to provide for herself; that she had exhibited financial irresponsibility; and that she was in a situation of long-term cohabitation, and she says that those, taken together, should have led the judge irresistably to the conclusion that this should be the time for a clean break, and that the connecting of this man and this woman by any sort of order was now inappropriate.
There is no doubt that the wife has been able to provide for her immediate needs; she has found herself a job. Miss Solomon invited our attention to section 31(7) of the Matrimonial Causes Act 1973, and the requirement for the court, under subsection (7)A in exercising powers' to have regard to all the circumstances of the...
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