Horsman v Horsman ; H v H (Financial Provision: Application to Terminate Wife's Right to Periodical Payments)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Year | 1993 |
| Court | Family Division |
THORPE, J
Appeal – from district judge to Judge – Judge not bound by decision of district judge – order of district judge that husband should continue to make periodical payments not upheld – circumstances indicating that clean break appropriate.
Costs – appeal – Calderbank offer made by wife prior to first instance hearing – offer refused – husband ordered to pay wife's costs – husband successfully appealing against order to continue making periodical payments – no Calderbank offer made in relation to appeal – whether husband should be ordered to pay wife's costs in relation to appeal.
In divorce proceedings in 1982 the wife obtained a financial provision order which was preceded by recitals. These recitals included one for periodical payments of £5,000 a year, another to the effect that those payments would continue for 10 years following any remarriage by the wife, and another stating that the husband would keep the wife provided with a car and its running costs. In 1983 the husband remarried. In 1985 he ceased to make the periodical payments and to provide a car. In 1986 the husband issued a notice of application to terminate his obligations. The matter did not come on for hearing until May 1992 when the wife was granted leave to enforce arrears which had become due more than 12 months earlier. The district judge ordered that the husband should pay the arrears in respect of the periodical payments and the provision of a car from 1985 to 1990; that from 1990 the husband should make periodical payments to the wife of £5,000 a year; and that the husband should pay the wife's costs on an indemnity basis.
The husband appealed:
Held – (1) It would be manifestly wasteful of costs if the appeal were to be by way of a de novo rehearing. But the appellate Judge was free to apply his own discretionary conclusion to the facts as found without undue regard to the discretionary conclusion adopted by the district judge. In the circumstances of this case the findings of fact of the district judge up to the date of hearing were well founded and she was right to enforce the arrears. However, the finding of the district judge that the husband should continue to make periodical payments could not be upheld. The wife had capital of £600,000, which was about the same as she had following the divorce, and was running a business which was now breaking even with potential for further growth. The husband had no capital, his
liabilities exceeded his assets by about £175,000, and he had no real prospect of any income. This was a case where a clean break would be appropriate. The appeal would be allowed to the extent of terminating the husband's liability to make periodical payments from June 1993.
(2) Prior to the hearing before the district judge the wife had made a Calderbank offer. This was rejected by the husband. The wife did much better as a result of the hearing, including a provision that her periodical payments should continue. That decision obliged the husband to appeal. No further Calderbank offer was made before the hearing of the appeal as it could have been. On appeal the husband had succeeded to a considerable extent and it would be quite unjust to order him to pay the wife's costs in relation to the appeal.
Statutory provisions referred to:Matrimonial Causes Act 1973, ss 31(7) and 32.
Cases referred to:Atkinson v Kastam (1991), The Times, 17 April.
Calderbank v Calderbank [1976] Fam 93; [1975] 3 WLR 586; [1975] 3 All ER 333.
Lauerman v Lauerman[1992] 2 FCR 497.
McDonnell v McDonnell [1977] 1 WLR 34; [1977] 1 All ER 766.
Merritt v Merritt[1992] 2 FCR 382; [1992] 1 WLR 471; [1992] 2 All ER 504.
Russell v Russell [1986] 1 FLR 465.
Walters v Walters[1992] 2 FCR 499.
Whiting v Whiting [1988] FCR 569; [1988] 1 WLR 565; [1988] 2 All ER 275.
David Bodey, QC for the wife.
The husband in person.
MR JUSTICE THORPE.This is an issue between former spouses who are both in their 60th year. They married in 1957 and had three children, all girls, born respectively in 1959, 1961 and 1963. During the middle years of the marriage the husband was one of the Slater Walker lieutenants and, by dint of borrowing large sums to buy shares in companies that he was managing, achieved a fair degree of affluence, so that by the time the parties came to separate in 1979, after 22 years of marriage, they had a comparatively high standard of living. The marriage was dissolved by decree nisi in 1980, made absolute in 1983.
The financial structure provided for the wife post-divorce was contained in an order dated 28 January 1982 made by Mr Registrar Tickell. The order is an unusual one. It is preceded by five recitals, the fifth of which was in terms that:
"The husband will provide the wife with a car of the same standard as a BMW 320, which will be replaced new every three years or after 20,000 miles, whichever shall be the earlier, and in respect of which the husband will pay road fund licence, insurance, maintenance, costs plus petrol up to [a stated maximum], such provisions to continue for the life of the petitioner or until ten years from her remarriage, if any."
The third recital also contained the same somewhat unusual duration provisions, for para 3 read:
"The periodical payments ordered below will continue to be paid by the husband to the wife during joint lives, even if the petitioner should remarry, for a period of 10 years following any such remarriage."
The order itself provided for a lump sum, topping up the sums to be received under the sixth recital from £300,000 to £625,000. Paragraph 2 was a conventional periodical payments order:
"From July 1, 1981 such sum as after deduction of tax at the basic rate from time to time in force shall amount to £5,000 per annum, during joint lives, until such date as the petitioner shall remarry or further order."
There was provision for the two younger children of periodical payments of £1,200 a year each until completion of full-time education or vocational training.
In 1983 the husband remarried. Following the commencement of the Matrimonial and Family Proceedings Act 1984, it appears that he and his second wife began to question whether the obligations contained in the order of 28 January 1982 need continue to burden them for the indefinite periods expressed. In Sepember 1985, accordingly, the husband ceased to pay either the BMW fund or the periodical payments. At the time he was represented by Messrs Gordon Dadds and the wife by Messrs Speechly Bircham. Correspondence ensued and on 3 July 1986 the husband issued a notice of application which was amended on 16 July and, on the same day, supported by a second notice of application. The intended effect of these issues was to invite orders from the court terminating his continuing obligations under the financial order.
The proceedings thus initiated have taken an interminable time to come to trial. The wife, through her solicitors, sought to enforce the arrears that were accruing by what I am inclined to think was a misguided remedy, namely the bailiffs of the Bloomsbury county court, who were furnished with some sort of writ of fi fa. During the course of his very helpful submissions, Mr Bodey has referred to a civil case in the Court of Appeal, Atkinson v Kastam, reported in The Times for 17 April 1991, which makes it plain that where an order of the court consists of in part recital and in part order, the contractual provisions only recited may be enforced as though they had been orders of the court. Applying that principle to a Family Division order, it seems that the wife could have made application in the Principle Registry within the suit for the enforcement of the fifth recited term of the contract, although it was not reproduced in the order section and although it was not the subject of undertaking.
The enforcement proceedings cost money and no doubt produced a sense of frustration in the wife. The long delay between the initiation of proceedings on 3 July 1986 and their determination on 20 May 1992 is said by the wife to be the result of deliberate strategy on the part of the husband. However, there were
specialist firms of solicitors on both sides until Messrs Gordon Dadds filed notice of change in February 1991. It seems to me that it would have been open to the wife to have countered that strategy by a series of counter-attacking applications that would have forced the issue on in less than six years. Mr Bodey did give the chain of three applications made by the wife's solicitors for a fixture, but that history did not explain why there was a delay of over 12 months between the order that the case should be heard on the first open date after February 1991 and its eventual listing in May 1992. So although the primary responsibility rests, no doubt, with the husband, I think that there must have been some element of contribution from the other side.
The wife herself issued a notice of application seven days before the fixture. Her notice of application was filed on 11 May and sought the court's leave to enforce arrears under para 2 of the periodical payments order. That notice of application was amended at the hearing by the addition...
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