Jeanette Loise Jones v John Stanley Jones
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE ORR |
| Judgment Date | 15 October 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J1015-6 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 October 1971 |
[1971] EWCA Civ J1015-6
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: Mr. Justice Faulks - London)
Lord Justice Davies
Lord Justice Orr and
Lord Justice Atkinson
Mr. JOHN WOOD, Q. C. and Mr, GILES ROOKE (instructed By Messrs. Gordon, Dadds & Co.) appeared on behalf of the Appellant (Husband, Respondent).
Mr. ANTHONY HOLLYS, Q. C. and Mrs. MARGARET PUXON (instructed by Messrs. Anderson & Co., Bognor Regis. Sussex) appeared on behalf of the Respondent (Wife, Petitioner).
This is an appeal from an order of Mr. Justice Faulks dated 23rd April last made on the wife's application for a variation of a maintenance order dated 1st June, 1967, and for a lump sum payment. For convenience I shall refer to the parties as "the husband" and "the wife" respectively, although their marriage was dissolved as long ago as 10th March, 1947. The learned Judge ordered that, upon the husband undertaking to transfer to the wife the former matrimonial home known as "Janstan", Parklands Avenue, Bognor Regis, the husband should, as from 26th January, 1970, the date of the wife's application to vary, make periodical payments to the wife at the rate of £3.500 per annum less tax (an effective increase of £1,500 per annum over the previously existing order) and should in addition make a lump sum payment to her of £5,000.
From that order the husband by leave of the learned judge appealed. In this court the arguments of learned counsel on either side were concluded on 21st July last. In view of the fact that the history and the details of the case were of some little complication we decided not to give a reasoned judgment forthwith, but we did then and there announce our decision on the case. That decision was that Mr. Justice Faulks' order for periodical payments should remain undisturbed but that the order for the lump sum payment should be discharged.
At one time it appeared that this court might have had to consider the interesting question whether the statutory power to order a lump sum payment is introspective in the sense that it applies to cases in which the decree was made at a time when no such power existed. That power was first given by the Matrimonial Causes Act, 1963, section 5 (1). That section was replaced by the Matrimonial Causes Act, 1965, section 16 (1) (c), which in its turn was replaced by the Matrimonial Proceedings and Property Act, 1970, section 2 (1)(c). It will be recollected that in H. v. H (1966 3 All England Reports 560) Sir Jocelyn Simon, President, hold that the provision in the 1963 Act was not retrospective, But that decision was not followed by Mr. Justice Brandon in the recent case of Powys v. Powys (1971 3 Weekly Law Reports 154). And Mr. Justice Faulks in the present case came to the same conclusion as did Mr. Justice Brandon. See also Williams v. Willlams (1971 3 Weekly Law Reports 92).
I would interpolate here that for the purpose of this judgment it is unnecessary to consider separately the provisions of the three Acts or the transitional provisions scheduled to the 1970 Act or any differences between them. The argument has conveniently been conducted throughout on the footing that the 1970 Act applies.
In the event it has not been necessary for us to consider this interesting question. For two reasons. In the first place, Mr. Wood for the husband at the outset of his argument conceded that all three statutes are retrospective in the sense that I have described. And, secondly, as I have already indicated we came to the conclusion that a lump sum order would on the facts of this case be inappropriate. I would however for my part express my agreement with the powerful reasoning on this point of Mr. Justice Brandon in Powys v. Powys.
In the result, therefore, the question for decision in this appeal became almost entirely one of fact, subject only to an interesting argument by Mr. Wood as to the combined effect of sections 5 (1) and 9 (7) of the 1970 Act upon applications for variation of orders for periodical payments. To this argument it will be necessary to refer later.
The parties were married in June, 1937, both being in their early twenties. They had one child, a son, born in February, 1938. He is, of course, now grown up and plays no part in the present case. On May 18th, 1946, the wife filed a petition for dissolution. This was not defended and on December 18th she obtained a decreenisi on the ground of cruelty. This decree was made absolute on March 10th, 1947. There had been an order for alimony pendente lite and there was subsequently an interim order for maintenance. Eventually on April lithe 1949, an order for maintenance was made at the rate of £900 per annum less tax, but the wife was to give credit for £200 per annum net so long as she continued to occupy free of rates the former matrimonial homo at Bognor Regis. The house was at that time valued at £4,250, She has in fact remained there ever since and the house has now as a result of the present proceedings been voluntarily conveyed by the husband to her.
In September, 1958, the husband re-married and has had by his second wife three sons, now aged respectively 11, 3 and 2.
On November 7th, 1960, the order for maintenance was by consent increased from £900 to £1,450, subject as before to the deduction of £200 in respect of the rate-free occupation of the former matrimonial home. On June 1st, 1967, a further consent order was made which increased the maintenance to £2,200 subject to the same deduction of £200.
On 26th January, 1970, the wife made an application to vary. And on the 4th August she applied for leave to apply for a lump sum Order. This application for leave was necessary since no claim for a lump sum had been or could hare been contained in her petition. On 2nd October Mr. Justice Faulks gave leave to make the application. The application for leave was not contested by the husband, but it was made clear on his behalf that he reserved all his rights to argue that the statutory power to order a lump sum payment was not retrospective, the point which, as I have already said, has now disappeared from the case.
I turn now to consider the figures. There is a wealth of documentation in this case with an abundance, perhaps a superabundance, of accounts, balance sheets and correspondence. Like the learned judge in the court below, I do not propose to consider these mattersin any great detail but merely to give what I conceive to be the broad picture of the respective positions of the parties.
So far as concerns the wife, she has not and never has had any income apart from what she receives from the husband. In her affidavit of January 7th, 1970, she set out an estimate of her weekly outgoings amounting to £18. 7s. 3d., to which must be added a sum of something over £2 in respect of the rates of the house which she now, of course, has herself to pay in consequence of the transfer of the house to her. Counsel on both sides were prepared to accept as a rough figure £21 per week. In view of the constant increase in the cost of living, it cannot be said that the 1967 order of £2,200 per annum less tax gives the lady much to spare for holidays, emergencies and the like. Her only capital asset is the house "Janstan". In 1947, this was valued at £4,250. we have been given no precise valuation of this at the present time, but a rough estimate is in the region of £8.000 to £10,000. She could of course sell this house. It is much too big for her. But the trouble is that she suffers from bad eyesight and yet, having...
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