Jones v Jones
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE THORPE |
| Judgment Date | 29 June 2000 |
| Neutral Citation | [2000] EWCA Civ J0629-8 |
| Judgment citation (vLex) | [2000] EWCA Civ J0330-18 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCFMI 1999/0989/B1,NO: B1/1999/0989 |
| Date | 29 June 2000 |
[2000] EWCA Civ J0330-18
The President
Dame Elizabeth Butler-sloss
Lord Justice Thorpe and
Lord Justice Mance
CCFMI 1999/0989/B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM (Caernarfon County Court)
(JUDGE HALBERT)
Royal Courts of Justice
Strand
London WC2
MR MARTIN BENNETT (instructed by Robyns Owen & Son, Gwynedd, LL53 5RY) appeared on behalf of the Petitioner/Appellant
MR RICHARD TODD (instructed by Martin & Nierada, Gynedd, LL53 5SH) appeared on behalf of the Respondent/Respondent
(As Approved)
: I will ask Lord Justice Thorpe to give the first judgment.
: Sandra and William Jones were married on 20th April 1974. There are two children of the marriage, both girls. The elder is 16 and the younger 14. In December 1990, the wife petitioned for divorce and the Decree Nisi was pronounced on 6th December 1991. Ancillary Relief claims were listed for contested hearing before District Judge Berkson in the Liverpool County Court on 13th October 1992. Both parties were represented by counsel.
The claim was compromised and a Consent Order, drafted by counsel, was laid before the judge. The order that he made, in the terms agreed, provided for the transfer of the final matrimonial home to the wife, subject to mortgage and subject to a charge in favour of the husband equal to one-third of the net proceeds of sale, deferred upon what are known as Martin terms: that is to say, available for the use and enjoyment of the wife, so long as financially dependent during her life.
It was also provided that that arrangement should be in full and final satisfaction of all capital claims. A clean break could not be immediately achieved because at that stage there was a continuing income dependency. The husband was a practising solicitor. The wife did not have any comparable capacity to earn. Accordingly, she was given five years in which to develop an independent earning capacity. The order was expressed to be:
"…periodical payments at the rate of £275 per calendar month during their joint lives or until the marriage or cohabitation with another man for a period in excess of three months of the Petitioner or further order or until 12th January 1998 whichever should first occur whereupon the claims for periodical payments in favour of the Petitioner for herself shall stand dismissed".
The significance of the 12th January was that that was the birthday of the younger child. Therefore, during that period the wife would receive that regular income for herself, and, in addition, child periodical payments at the rate of £200 per month per child, which of course were not term-limited. It is important to note that those who negotiated this agreement for the husband did not obtain a further provision under section 28(1)(a) preventing the wife from making any further claim to the court.
Therefore, the outcome on the 13th October from the husband's point of view was that he could reasonably expect that a clean break —by which I mean the termination of all financial liability for the wife herself —would be achieved in five years and two months' time. There was of course the possibility that she might exercise her right to apply under the statute for the extension of her periodical payments order, an application which he would have to meet on the merits. But absent such application he knew what was the end of the liability road for him.
On 7th January 1998, an affidavit was sworn in support of an application by the wife, which was filed on the following day. The application sought a variation of the consent order by extending the duration of the periodical payments for the wife until her remarriage or during joint lives or until further order. That of course involved an indefinite extension rather than the proposal of a later date of termination. There was also an application for an increase in the amount of the order. There was an application for the increase of the amount of the child periodical payments, and, further, that the arrears of maintenance under either the wife's order or the children's order should be enforced by way of set-off or charge against the husband's interest in the former matrimonial home. There was also an application that future periodical payments should be secured against that charge.
That application was transferred from the court of issue, Liverpool, to the Caernarfon County Court. There were then interlocutory hearings. First of all, in May 1998 before District Judge Hughes. The following month there was an order that the husband serve an affidavit of means in response. The affidavit of means did not arrive until 16th July. It declared that his practice was not profitable and that it was his intention to close it as soon as possible and that he had no prospect of salaried employment. The district judge on that day ordered the husband to file a list of documents, including his professional accounts for the previous six years. At another hearing in August a deputy, in the absence of appearance of the parties, adjourned the pretrial review generally.
In September another district judge made an unless order against the husband, that if he failed to serve his accounts by a given date then an independent accountant was to be instructed to investigate his financial affairs. The wife applied in December for an injunction restraining him from disposing of the proceeds of sale of two insurance policies. That was a timely and effective application, as the proceeds in the sum of £1,891 have since been held in solicitors' account subject to solicitors' undertaking. Most recently, following judgment in the court below, those monies have been paid to the wife.
At the beginning of 1999 again before District Judge Hughes, the preservation of that money was ordered. In March the husband issued an application under section 35 of the Matrimonial Causes Act. That was procedurally erroneous and by consent it was treated as an application for downward variation under section 31 of the statute. The husband deposed to his dire financial circumstances, saying that he was unable financially to meet the periodical payments order of 13th October. The husband, it seems, ceased to pay child periodical payments, as due, after 12th January 1998. By May 1999 the wife, in her final affidavit of means, deposed to arrears under her order amounting to £1,570 and arrears under the children's order amounting to £850.
The applications were heard by District Judge Hughes shortly afterwards on 18th May. Mr Martin Bennett appeared for the wife and Miss Hamilton-Hague appeared for the husband. Evidence was given by both parties. In final submission Miss Hamilton-Hague submitted to the district judge that he had no jurisdiction to consider the wife's application for extension of the term since no extension had been ordered prior to the termination date of 12th January 1998 fixed by the original consent order. The submission was founded upon guidance offered to the profession by Ward LJ in a case of G v G which I will refer to in greater detail in due course, but it had been reported [1998] Fam. 1 and was therefore available for deployment at a hearing in May 1999. The district judge rejected the submission. He considered what order he should make in the exercise of his discretion. He said that he would achieve a clean break between the parties by assessing the wife's future entitlement as a further two years at the rate originally agreed. But capitalising that, and having regard to arrears and having regard to his intention that there should be no future and continuing income liability for either wife or children, he ordered a lump sum of £6,891 to the wife and discharged the husband's interest in the final matrimonial home.
The quantification of the lump sum is easily explained. It was of course the £1,891 proceeds of the two policies preserved by the wife's application, plus a sum of £5,000 which was the surrender value of a further policy to which the husband was entitled and which was not encumbered. This solution was achieved by the district judge in reliance upon sections 31(7)(a) and section 31(7)(b) of the Matrimonial Causes Act 1973, subsections which appeared in the statute by amendments that came into force on 1st November 1998, that is to say between the date of the wife's application and the date of the district judge's adjudication. His adjudication was in fact in a reserved judgment handed down on 16th June.
The husband was dissatisfied with the district judge's ruling and he appealed by notice of the 2nd July, listed for hearing before His Honour Judge Halbert. It was, of course, the vacation and Mr Bennett was not available, so Mr Sommerville appeared for the wife to defend the district judge's order.
The husband was represented by Mr Todd, who advanced a strong submission that the district judge had been wrong to reject the observations of Ward LJ in G v G. He succeeded in that submission. The circuit judge was persuaded that he had no jurisdiction to entertain any application from the wife in respect of a periodical payments order, which he held to have perished on 12th January 1998. He also differed from the district judge on the merits. He said that had he had jurisdiction he would have exercised his discretion only to order the lump sum of £6,891 in favour of the wife, but not to discharge the husband's interest in the final matrimonial home.
He then, on the basis that he lacked jurisdiction to do anything for...
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