June Patricia Simmons v Ernest John Simmons
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE EVELEIGH |
| Judgment Date | 12 April 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0323-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 April 1983 |
| Docket Number | 83/0129 |
[1983] EWCA Civ J0323-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(FAMILY DIVISION)
Royal Courts of Justice
Lord Justice Eveleigh
Lord Justice Purchas
83/0129
THE RT HON. P.K. ARCHER Q.C. and MISS J. HORNE, instructed by Messrs Roberta Tish & Co., appeared for the Appellant (Petitioner).
MR T.A.C. CONINGSBY, instructed by Messrs Piper Padfield & Derby (Ilford), appeared for the Respondent (Respondent).
This is an appeal by June Patricia Simmons ("the mother") from part of an order made by the learned President on 22nd October 1982. Leave to appeal against this part of his order was given by the learned President on 2nd February 1983. The order was made after a substantial hearing and resulted from a detailed judgment dealing with many matters in issue between the parties including the custody of two children of the marriage, detailed provisions for access to the respondent father and orders under sections 23 and 24 of the Matrimonial Causes Act 1973 ("the Act").
This appeal concerns a limited issue as to the proper disposal of the matrimonial home. The short history is as follows. The parties were married on 19th December 1964. The father is now 41 years of age and the mother 38 years of age. There are two children of the family: Jack Paul, who was born on 27th February 1974 and is, therefore, nine years of age; and George John, who was born on 17th October 1977 and who is just under five and a half. There were a series of matrimonial homes. The final one,which was bought in joint names, was at 55 Northumberland Avenue, Wanstead. This was a four-bedroomed house of ample proportions with three reception rooms. At the time of the hearing before the learned President its value was put at around £49,000. There was a mortgage outstanding of £10,500. The nett equity after costs of sale, etc. was placed at around £37,000. Mr Archer, who appears for the mother, has suggested that this figure might be a little high in that the costs of sale, etc. may well have been understated. The outgoings on the house, including capital repayment of the mortgage, are in the region of £2,750 per annum.
After about 16 years the marriage unhappily broke down. The wife presented a petition dated 23rd October 1980 based on the irretrievable breakdown of the marriage and behaviour on the part of the husband falling within section 1(2)(b) of the 1973 Act. By consent an order was made which resulted in the father leaving the matrimonial home on 29th October 1980. He has since then remained away from the home. Decree Nisi was pronounced on 18th June 1981. There was an application for maintenance pending suit on 27th February 1981. On the husband's undertaking to continue to pay all the outgoings on the house no order was made for maintenance pending suit. The husband is a senior art teacher earning in the region of £10,000 gross per annum. The wife is in part-time employment earning in the region of £221 per month. Proposals which she has made include taking student lodgers, which would enable her to bring her total monthly income, including child allowance, to about £428. This calculation is exhibit JPS7 to the mother's affidavit dated 15th February 1983. The husband now resides in a ground floor flat owned by a Mrs Berry, with whom he lives and whom he plans to marry. This accommodation has only one bedroom and two other rooms. It is adequate for a weekend stay by the children, but not for longer stays. Access on a generous scale was ordered by the learned President, including half the school holidays and alternate weekends. It is, therefore, important that the husband should be able to improve his accommodation if for this purpose alone. The mother remains on in the matrimonial home. The accommodation provided by this is more than is absolutely necessary for her and the two children; but, as I have already mentioned, she plans to make proper use of the accommodation by letting one or more of the rooms. This would enable her to be financially self-supporting and to service the mortgage and maintain the family home without having recourse to the father, apart from a contribution towards the maintenance of the children.
The learned President made an order hearing in mind the importance of safeguarding the children, but also doing justice between the parties as it then appeared to him. This involved an order for the sale of the house and a further order that out of the proceeds of the sale the mother should receive £26,750. I quote from his judgment at page 16 C:
"Now, the, prime need of this family is proper housing for the children, and I approach the problem upon that basis. Certainly the children's present home in Northumberland Avenue, where they live with their mother, is ample to provide a proper home; hut if, consistently with providing a proper home for them, the father's capital (it is the only capital he has of substance) or a substantial proportion of it can be released to him, it seems to me to be fair, as between mother and father, that that should be so, provided that it can be done consistently with achieving the prime purpose. There is obviously, as there always is in a matter of this sort, a degree of speculation about exactly what will be available on the market at exactly the appropriate moment. But I am satisfied, on the evidence which I have seen, that for about £32,500 or £33,000 the mother can acquire a freehold house with four bedrooms tolerably near to the school. The mortgage and the costs which would necessarily have to be repaid and paid on a realisation of the former matrimonial home will leave something like £37,000 or £37,500 free for division between the two spouses.
"The mother's mortgage ability, I am told, ranks at about £7,000, provided she has a sufficient primary security. The father, without consenting to it, has made plain through his counsel that he attaches very considerable importance to having some free capital even at a cost of having to provide for the mother substantially more than her share of the proceeds of sale of the matrimonial home, and a figure which has been mentioned in that connection (and it seems to me to be a proper figure) is a figure which on present expectations would be something like three-quarters of the proceeds of sale, a figure of £26,750."
As the learned President remarked in the extract I have cited from his judgment, there must always be a degree of speculation. Speaking for myself, had I been approaching this problem at first instance I would probably not have had the courage to have put into operation such a closely tailor-made scheme as the one proposed. Having said that, however, the learned President approached the problem on entirely the correct basis, i.e. achieving, if it was possible, the provision of adequate accommodation for both parties by means of a careful redistribution of the family assets. Certainly such a provision standing unqualified could not be criticised in this court.
The keystone of the scheme proposed by the learned President was the payment to the mother of the sum of £26,750 from the proceeds of the sale of the matrimonial home. The learned President had unfortunately left out of account the charge for the benefit of the legal aid fund created by section 9(6) of the Legal Aid Act 1974 (as amended) ("the 1974 Act"). This charge, making as it would a substantial inroad into the figure available to the mother to rehouse herself, effectively brought about the collapse of the scheme. The latest estimate of the mother's liability to the legal aid fund is £8,000. According to a calculation produced by Mr Archer, all that the mother would have available to buy a new home for the family would be £15,900 plus £7,000 mortgage—total £22,900. This would not be sufficient.
Mr Coningsby has attempted skilfully and attractively to support a respondent's notice in order to uphold the order of the learned President or to place before the court an alternative solution. Mr Archer, on the other hand, has argued in support of the appeal that a sale of the matrimonial home cannot in the full circumstances be justified and that in order to preserve a home for these young children and their mother she should be entitled to continue to live there making on her part a contribution by taking in lodgers achieving her own individual financial viability, but receiving in exchange a transfer of the father's interest in the property.
Before coming to a consideration of the charge in favour of the legal aid fund it is necessary to notice two further events. In the case of Jones v. The Law Society (The Times newspaper for 27th January 1983) the learned President was incorrectly reported to have said: "Perhaps some way could be found within the regulations so that the discretion of the Law Society could attach its charge to a fund which was intended to purchase a home as well as attaching to an existing home." This comment was made in connection with an application which had been made by a respondent husband for a declaration that the Law Society was not entitled to a charge on moneys retained by his former solicitors as part of a settlement between him and the petitioner wife in regard to the disposal of the matrimonial home. Following the case of Hammond v. The Law Society (1981) AC 124, the learned President refused the application and in fact said that perhaps by statutory amendment or amendment of the Legal Aid(General) Regulations a way could be found to grant discretionary power to the Law Society enabling it to defer enforcement of a charge over a fund intended to be used in the...
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