K v K (Financial Provision: Conduct)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE PURCHAS,LORD JUSTICE NICHOLLS,LORD JUSTICE RUSSELL
Judgment Date22 July 1987
Judgment citation (vLex)[1987] EWCA Civ J0722-10
Date22 July 1987
Docket Number87/0778

[1987] EWCA Civ J0722-10

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

FAMILY DIVISION

(MR. JUSTICE EWBANK)

Royal Courts of Justice

Before:

Lord Justice Purchas

Lord Justice Nicholls

Lord Justice Russell

87/0778

Diana Kathleen Kyte
Respondent
and
Graham Rodger Kyte
Appellant

MR. F. J. BURNS (instructed by Messrs. Clifford Otten & Co., Manchester) appeared for the Appellant.

MR. M. P. ALLWEIS (instructed by Messrs. March Pearson & Skelton, Manchester) appeared for the Respondent.

LORD JUSTICE PURCHAS
1

This is an appeal by Graham Roger Kyte ("the husband") against an order made by Ewbank J. on 16th January 1987 at Manchester when the learned judge allowed an appeal from an order made by the Registrar (Mr. Registrar Gee) on 7th October 1986 to the extent that, in addition to the orders made by the Registrar, the husband was ordered to pay to Diana Kathleen Kyte ("the wife") a lump sum of £14,000. The central issue raised in the appeal relates to section 25 of the Matrimonial Causes Act 1973 as substituted by section 3 of the Matrimonial and Family Proceedings Act 1984. The parts of the section relevant to this appeal are:

"25(1) It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24 or 24A above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.

(2) As regards the exercise of the powers…in relation to a party to the marriage, the court shall in particular have regard to the following matters—

(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;…"

2

After hearing evidence on 20th August 1986 and submissions made by counsel, the Registrar delivered a reserved judgment on 5th September 1986. The wife's application claimed all the usual forms of ancillary relief but as recorded in the Registrar's judgment the only live issues were:

  • (a) what provision should be made in respect of the matrimonial home at 111 Downham Crescent, Prestwich;

  • (b) what lump sum, if any, should the husband pay to the wife;

  • (c) what level of periodical payments should be ordered in respect of the three relevant children of the family.

3

The short background to the application was as follows. The parties were married on 25th July 1975. There are four children of the family, two of whom were the wife's children by a former marriage, namely Paul, born on 21st September 1965 and Andrea, born on 29th January 1969; and two who were the issue of the parties to the marriage, Victoria, born on 7th October 1977, and Rachel, born on 17th January 1980. The marriage appears to hare come under stress at or soon after the birth of Rachel. The husband suffered from depression and spent numerous periods in hospital under treatment for this condition. In the particulars of behaviour upon which the wife relied in support of her petition for dissolution of marriage based upon section 1(2)(b) of the Matrimonial Causes Act 1973, which generally were accepted by the husband, it appears that, as a result of his depression, he was unpredictable and suicidal. Particularly severe incidents are recorded in April 1981. In the summer of 1982 he attempted suicide at his office and was rescued only by the wife and his office driver who, missing him, had called the wife for assistance. Other suicidal incidents occurred in the summer of 1973.

4

On the findings of fact reached by the Registrar, which were generally accepted by the judge on appeal, the wife started associating with a Mr. Gregory as early as June 1983, although she did not start living with him permanently until 1984. The husband's case, which was accepted by the Registrar, was that, although one of the serious suicidal attempts in the summer of 1983 was caused by the wife withdrawing her support from him, he was not at that time aware of the wife's association with Gregory. Subsequently, he realised that she was only using his conduct as a means to dissolve the marriage and set up home with Gregory.

5

Having initiated the suit, the wife obtained an injunction ousting the husband from the matrimonial home in February 1984. It is his assertion that this application was contrived to enable her to set up home with Gregory in the matrimonial home. The Registrar found that, in presenting her version of these events to him, the wife had lied on oath.

6

After hearing evidence at length from the wife, the husband, from other witnesses including Gregory's wife, the Registrar came to certain firm findings of fact on the issues. The relevant parts of his judgment can conveniently be set out at this stage:

7

"I think there is no doubt that, as stated in Paragraph 1 of the Particulars of Behaviour in the Petition the husband's behaviour was unpredictable and suicidal and he spent many periods in hospital. I need not repeat them but the incidences of the husband's behaviour, which were brought about by his condition, are set out in the Particulars of Behaviour and notwithstanding that no 'fault' as such can be attached to the husband in the sense that his behaviour was brought about by his condition, there is no doubt that the wife had just cause for complaint and which more than justified a petition under Section 1(2)(b) of the Matrimonial Causes Act 1973. The husband for the most part accepts the allegations which were made against him, although he did file an answer denying that the marriage had broken down and asking that the Prayer for Dissolution be rejected. Subsequently when he found out about the wife's relationship with Mr. Gregory his Answer was with leave amended to include a cross prayer for dissolution based on an allegation of adultery with Mr. Gregory who became the Party Cited. At the decree hearing, by agreement, cross decrees were granted on the petition and answer. The husband's case is that until his first really serious suicide attempt in July 1983 the wife had been supportive and understanding. It was her withdrawal of support which led to him seriously attempting to take his own life. He could not understand why her attitude had changed. He knew nothing of Mr. Gregory at the time of this attempt in July of 1983 but now believes that the wife only used his 'conduct' as a basis for a divorce so that she could set up house with Mr. Gregory and, as he believes, inherit all his estate in the likely event that he successfully committed suicide. The wife's case is that her relationship with Mr. Gregory only started some time after the proceedings were commenced and after the suicide attempt in July and that this gradually blossomed until the stage was reached only in about October 1984 that she started to live with him permanently. I am quite satisfied on the evidence I heard that the wife has not told me the truth about her relationship with Mr. Gregory. She denied writing a 'love letter' to Mr. Gregory as early as June 1983 but Mr. Gregory's former wife Barbara Gregory gave evidence to me that she found such a letter on the 17th June 1983 which read something like:-

'Dear Michael, Miss you very much. Can't wait for our meeting. Love You. Diana.'

8

Mrs. Gregory appeared on Witness Summons and had no reason to tell me any untruths. I accept her evidence which I think proves conclusively that the relationship between the wife and Mr. Gregory, for it to have reached the stage in which a letter such as that was written, must have started some time well before June 1983. The wife therefore in my view lied to me on that point.

9

"Next, the husband asserts that the obtaining by the wife of an injunction ousting him from the matrimonial home in February 1984 was a manufactured set of circumstances to give her premises in which she could set up house with Mr. Gregory. The wife asserts that whilst Mr. Gregory, after she returned, stayed from time to time it was much later in that year before he moved in finally. Certainly in April 1984 the wife's Solicitors wrote to the husband's then Solicitors asserting that there in effect was no relationship at all. That was clearly not the case. Mrs. Gregory gave evidence that she believed that her husband had started to live with Mrs. Kyte at the Kyte matrimonial home in about February 1984. She had been told that his taxi (he was then a taxi driver) was there day and night and she asked him about it and he told her that he was living there. He had already admitted to her that 'sex was involved' when she had found the letter to which I have referred. I accept Mrs. Gregory's evidence on this point and accordingly conclude that again the wife has not told me the truth on this issue and that Mr. Gregory was effectively living with her from shortly after she moved back to the matrimonial home.

10

"The husband put to the wife that she had thrown a party for Mr. Gregory in February 1984. The wife whilst accepting that there had been a party at this time at which Mr. Gregory was present, denied that it was for him (his birthday being on the 10th February) and said that the birthday party she threw for him was in February 1985 which was after he had admittedly moved in. Mrs. Gregory gave evidence on this point as well. Mr. Gregory had told her of a party in February 1984 which was 'for his birthday and because Mr. Kyte had left the house'. Again I think the wife was less than truthful. I think the husband is right. She wanted him out of the house 'to set up shop' with Mr. Gregory and having successfully attained her objective she threw a party to celebrate this and Mr. Gregory's birthday."

11

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