K v K (Conduct)
| Jurisdiction | England & Wales |
| Judgment Date | 1990 |
| Date | 1990 |
| Court | Family Division |
SCOTT BAKER, J
Financial provision – divorce – wife in better financial position than husband – wife having purchased new accommodation – husband without permanent accommodation – former matrimonial home in joint names – each spouse entitled to half of net proceeds – husband seeking additional lump sum – inequitable to disregard conduct – husband's need for accommodation – appropriate order.
The parties married in 1977. There were no children of the family. In 1982 they purchased a flat in their joint names for £17,261. As the husband had participated in a co-ownership scheme they acquired the flat at a considerable discount. The true market value was about £70,000. The flat was purchased on a 100% mortgage. The husband had not worked since 1982 and it was the wife's earnings which enabled them to obtain the mortgage.
The marriage ran into difficulties, principally because of the husband's drinking. In 1984 the wife left and in 1987 they were divorced. The former matrimonial home was sold for £125,000 leaving net proceeds of £97,378. Those proceeds had been in court and had increased to about £101,000. As a matter of law each spouse was entitled to one half.
The wife, who was aged 43, was working and had an income of £24,600 a year gross. She had purchased a flat in 1985 with loans of £20,500 and a mortgage of £36,000. The current value of that flat was in the region of £80,000 to £90,000.
The husband, who was aged 49, was not working. He suffered from a personality disorder and up to 1984 had over-indulged in alcohol and caused himself damage. He had no permanent accommodation.
The wife applied for her half share of the former matrimonial home. The husband sought not only his half share but also a lump sum of £20,000 and capitalized periodical payments of £5,000 a year for three years, a total of £85,000.
Held – The wife had made great efforts to improve her financial position. The husband, on the other hand had not made reasonable efforts to obtain employment. He had had a drink problem. He had a personality disorder and his present situation was largely self-inflicted. Having regard to the provisions of s 25(2) of the Matrimonial Causes Act 1973, the circumstances were such that it would be inequitable to disregard the conduct of the parties. So far as their income was concerned, the wife had a significant income and the husband had an earning capacity. So far as their financial needs were concerned, the crucial factor was the husband's need for accommodation. In the circumstances, it would not be just to order the wife to make periodical payments to the husband. The husband sought a minimum of £70,000 to
[1990] FCR 372 at 373
obtain a flat in London. But he originated from another part of the country where he could purchase accommodation for less. The husband's needs were such that he should have more than simply his half share bearing in mind the costs that had to be paid. There would, therefore, be an order that the husband should have £60,000 to be paid out of the proceeds standing in court currently at £101,000. From that lump sum the husband would have to pay £3,230 by way of costs in the divorce proceedings.
Timothy Scott for the husband.
Mark Rogers for the wife.
MR JUSTICE SCOTT BAKER.The parties were married on 9 July 1977 having previously lived together in a flat for a period of approximately three years. There are no children of the family. The husband is 49 years old and the wife is 43.
In 1982 the parties by then having moved to another flat in the same building but with one additional room, they purchased the second flat for £17,261 in their joint names. They had in fact moved there in I think 1979. Because the husband had participated in a co-ownership scheme in respect not only of the second flat but previously the first flat, it was possible for the parties to buy the second flat at a substantial discount to the true market price. The true market price was in the region of £70,000. They bought it, as I have said, for £17,261 and they obtained a 100% mortgage.
The husband had been made redundant some two years before in May of 1980. He had previously been working for a company in their financial planning department. It will be noted that the purchase of the matrimonial home took place some two years after the husband had been made redundant and it was therefore the wife's earnings that enabled the parties at that stage to be able to obtain the mortgage.
Unfortunately, the husband was unable to obtain other employment and indeed he has remained unemployed for effectively the whole...
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