J v J

JurisdictionEngland & Wales
Judgment Date16 May 1955
Judgment citation (vLex)[1955] EWCA Civ J0516-5
Date16 May 1955
CourtCourt of Appeal
Jones and Goddard

[1955] EWCA Civ J0516-5


The Master of The Rolls (Sir Raymonds Evershed)

Lord Justice Hodson and

Lord Justice Parker

In The Supreme Court of Judicature

Court of Appeal

Mr GILBERT BEYFUS, Q.C., and Mr JOSEPH JACKSON (instructed by Lessrs Wadlake, Letts & Birds) appeared on behalf of the Appellant (Respondent husband).

Mr LEONARD CAPLAN, Q.C. and Mr GERALD REED (instructed by Messrs Herbert Oppenheimer, Nathan & Vandyk) appeard on behalf of the Respondent (Petitioner Wife).


I will ask Lord Justice Hodson to deliver the first Judgment.


This is an appeal from an Order of Mr Justice sachs made on March 18th, 1955, by which, reversing an order of Mr Registrar Forbes for interim maintenance at the rate of 2 a week, he orderd the Appellant to pay to his former wife interim maintenance at the rate of £5. 10. Od. week free fo tax as fromt he 1st September, 1954, until October 1st, 1955. The Wife had obtained a decree of divorce on December 17th, 1953, and an order for the custody of the two children of the marriage, in respect of whom maintenance Orders had also been made. The Order appealed from was made in the exercise of the Judge's discretion conferred by the matrimonial Causes Act, 1950, Section 19, reproducing corresponding sections of the earlier acts. Section 19, sub-section (1), reader: "On any petition for divorce or nullity of marriage, the court may make such interin orders for the payment of alimony to the wife as the court thinks just". The first part of sub-section (2) reads: "On any decree for divorce or nullity of marrige, the court may, if it thinks fit, order that the husband shall, to the satisfaction of the court, secure to the wife such gross sum of money or annual sum of money for any term, not exceeding her life, as, having regard to her fortune, if any, to the ability of her husband and to the condcut of theparties, the court may deem reasonable": and sub-section (3): "On any decree for divorce or nullity of marriage, the court my, if it thinks fit, by order direct the husband to pay to the wife, during their joint lives, such monthly or weekly sum for the maintenance and support of the wife as the court my think reasonable, and any such order may either be in addition to or be instead of an order made under the last foregoing subsection". The refeence to the fotune of the wife, the ability of thehusbnd and the conduct or the parties applies equally to sub-section (2): compare Chichester v. Chichester, reported in 1956 probate, page 129.


The appeal being against an Order made in the exercise of the Judge's discretion, the matter is not open to review in the sense that this Court can be asked to substitute its discretion for that of the learned Judge. The position in this class of case is clearly stated by Lord Justice Asquith, as he then was, in Bellenden v. Satterthwaite, 1948 1. All England Reports, at page 345: "we are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds migh reach widely different decisions without either being, appealable. It is only wher the decision exceeds the generous ambit within which reasonable disagrement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere. That is, I think, the principle which emerges from the decision of the House of Lords in Evans v. Bartlam and Osenton v. Johnston".


Mr Beyfus, on behlf of the husband, has argued that the learned Judge has so misconceived the financial position of his client that the Court should interfere with the Order of the learned Judge and restore the ORder of the Registrar before whom his client had been cross-examined at length on his affidavits. Further, it is said, the learned Judge erred in falling to give proper consideration (a) to the fortune of the wife and (b) to the conduct of the wife. I am not persuaded that here was such misconception of the financial position, nor do I think that there was any failure on the part of the Judge to give proper consideration to the matters referred to in the dection. Subject to the form of the ORder, which appears not to carry out the intention of the learned Judge and to have been based on a misunderstanding of theeffect of the Income Tax Axts. I think therefore that the special fils. I will return later to the form of the Order.


This appeal is concerned only with an interior order expressed to expire on October 1st next, but the application has already occupied many hours - indeed, days - before the Registrar, before the Judge and before this court. A great if proper discovery had been insisted on before the cross-examination which took place before the registrar, such profitless inquiry might have been avoided. Very great care was given by the learned judge to every rtail in this case. In fact, perhaps it might even be said that, having regard to the comparatively short period which this order is intended to cover, it was scarcely necessary to travel at such great length over the tiny details of this case.


The husband is a man who pays no income tax, and, according to him income tax returns for the last time years, his total income was, for 1951/52 £42, 1952/53 £59 and 1955/54 £60. These sums were derived from insurance commissions. He was, however, a man who had in the past earned a salary of 13,500 a year plus expenses and had, ebfore the order under appeal was made, been actively engaged in the development of landed property, one a freehold estate of 5 acres at fulmer, in the County of Buckingham, which was conveyed to him in way 1953 by the licuidatory of a company of which he was virtually the sole shareholder, and the other a leasehold property in herefor square, South Kensington, in which he became interested in 1953 and acquired in ebruary 1954 for 10,800, on completion of the developmet, the value of the Fulmer property has been assessed at an estimated figure of £34,800. He estimate has been given of the developed value of the South Kensington property. The development of these properties is said to be his occupation, involving continuous attendanceand, according to his evidence which was accepted by the learned Registrar, made it reasonable for him to use a motor car mainly for bussiness purposes. A great deal of time was spend in endeavouring to ascertain the capital position of the husband, who has throughout taken up the stand that he is harrssed by creditors and that he is insolvent in the bankruptcy sense, so that any order made against him threatens him with financial ruin. It is true thathis debts, apart from his indebtedness to his Bank, amounted to £7,600 in June 1953. On the 23rd of this month (June 1954) he swore an affidavit which I will read: "On the 8th April, 1953, I married Lilly Constance coodhurst. In August 1953 I moved from my ormer address to Fulmer Chase where I now live in a nisson hut onthe Fulmer Chase roperty conssiting of three rooms. My wife lives ther with me. I pay no rent and I support my wife as best I can". He did in fact move into a house after this affidavit was sworn. The next paragraphs reads: "The position with respect to my overdraft has not changed. Such moneys as I hve for the support of my wife are from the Overdraft". In the next paragraph he sets out a list of miscellaneous liabilities, totalling £7,602. Paragraph 6 reads as follows: "I find the order of this HOnourable Court in relation to maintenance of the said children very difficult indeed to keep up. If any further burdens are placed on we at present i shall not know which may be hurt. My time and energies are fully employed in keeping off my creditors and in trying to salvage something from Fulmer Chase which has proved a tragic failure as far as my financial position is concerned espacially as I have no longer open to me the career which I formerly pursued". Weither in this affidavit nor in any previous affidavit did he include any refeence to the South Kensington property or to the loand of £12,000, to which I shall later refer. This affidavitcannot be regarded as a honest statement of his financial position. His time and energies were not then full employed as he said, but rather very largely in the scheme for the developmet of th South Kensington property which he had required four months earlier. On the 15th September, 1954, he made a defective Affidavit of Documents, and no proper discovery was given before his cross-examination.


The husband's Counsel has complained that, although the Judge had not the opportunity given to the Registrar of assessing the husband's credibility, he (notwithstanding the acceptance by the registrar of his evidence) classified him amongst men of unquestionable commercial integrity who may some how justify to themselves most questionable methods on certain matters outside commerce such as the defecting of the claims of an ex-wife. Having regard to the contents of the affidavit of june, which I have read in extenso, and in particular having regard to it ommissions, i do not think the husband has much to complain about when language is used about him such as that employed by thelearned Judge.


Braodly speaking, the facts (so far as they have been ascerusined) show that the decis of his properties are pledged with Barclays Bank, who have on that security made him a loan of £12,000, now said to be reduced to a lower unstated figure, and that he is being financed by a Building Society up to £40,000...

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