Kiely v Kiely
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE BOOTH,LORD JUSTICE FOX |
| Judgment Date | 03 July 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0703-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/0683 |
| Date | 03 July 1987 |
[1987] EWCA Civ J0703-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
GLOUCESTER COUNTY COURT
(HIS HONOUR JUDGE HUTTON)
Royal Courts of Justice,
Lord Justice Fox
Mrs Justice Booth
87/0683
No. of Matter 81D. 1512
MR R. GORDON (instructed by Messrs. Tayntons, Solicitors, Gloucester) appeared on behalf of the Appellant (Husband).
MISS J. RODGERS (instructed by Messrs. Rowberry Morris) appeared on behalf of the Respondent (Wife).
On 22nd October 1986 His Honour Judge Hutton, sitting in the Gloucester County Court, made a lump sum order in favour of two children of the family of the parties to this suit. From that order the husband appeals.
The material facts are these. The husband and wife (as I will for convenience call them) were married in 1970 and have two children, a daughter born in April 1973 and a son born in March 1975. In 1975 they purchased in their joint names, a property in Gloucester for the sum of £9,500, of which £7,000 was raised by way of mortgage. In January 1982 the parties separated, the wife remaining in the matrimonial home with the children. In due course she was granted a Decree Nisi of divorce, which was made absolute on 21st September 1982. The husband has since remarried, but the wife has not.
In the course of the matrimonial proceedings the wife applied for ancillary financial relief for herself and the two children. That application included an application for a lump sum or sums for the children. In due course an agreement was reached between the parties, and on 30th July 1982, after a Decree Nisi of divorce had been granted, a consent order was made. That order is of importance in this appeal. It provided that the matrimonial home, which then had an agreed value of £22,500, was to be transferred within three months to the wife, subject to the existing mortgage and subject also to a charge in favour of the husband for fifty per cent. of the equity. That charge was not to be enforced by the husband, save on the occurrence of the first of the following events:
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(a) the agreement of the parties,
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(b) the death of the wife,
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(c) the remarriage of the wife,
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(d) the permanent cohabitation of the wife with another man, or
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(e) the further order of the court.
Provision was also made for the purchase by the wife of a substitute property, with the transfer of the charge in the same terms. It is, I think, material to note that no provision was made in that order for the sale of the matrimonial home or the substitute property on the younger child attaining the age of 18, or both children ceasing to reside in it. By agreement the husband was ordered to make periodical payments to the wife at the rate of £10 per week until remarriage or further order, and periodical payments to each of the two children at the rate of £10 per week until they attained the age of 17, or further order.
The property was duly transferred to the wife in accordance with the terms agreed, and she thereupon assumed liability for the mortgage, having undertaken to indemnify the husband in that respect. But the husband complied with the terms of the periodical payments order only for the remainder of that year, and he ceased to make payments after December 1982. He then applied to the court to enforce his charge on the matrimonial home. If his application had been acceded to, the effect would have been to have rendered the wife and the children homeless, and to have put 50 per cent. of the equity into his hands. That application was dismissed by an order of the Registrar of 17th August 1984; but on the husband's further application the periodical payments order for the wife was reduced to a nominal figure of 5p. per annum, and the payments to each of the two children were reduced to the sum of £7.50p per week. Arrears of maintenance in the sum of £1,040 were ordered to be secured on the husband's charge on the equity of the matrimonial home.
For a further short period of time, between August 1984 until the end of January 1985, the husband complied with the periodical payments order in favour of the children. Thereafter he ceased to make any further payments. In March 1985 he again applied to the court to vary by reducing the amount payable by him, the substance of his case being that his financial commitments to his second family, which included the purchase of another house on mortgage, were such that he could no longer afford to make financial provision for the children of his first family. That application was heard by Mr Registrar Child on 23rd September 1985, when he reduced the periodical payments for the two children to a nominal 5p. per annum, and remitted the arrears which had accrued since 1st February 1985.
The wife then appealed the order of the Registrar. Her Notice of Appeal is dated 24th September 1985. On 30th December 1985 the wife filed a further application seeking "a child lump sum payment". She supported that application and her appeal with an affidavit in which she stated that she had only consented to the initial order of 30th July 1982 on the understanding that the husband would continue to pay substantial maintenance both for herself and the children. It is the wife's contention that the husband had no intention of complying with the terms as to periodical payments included in the consent order, and that he had deliberately undertaken financial commitments which would lead to the wife and children becoming dependent on State benefits, while nevertheless retaining for himself a fifty per cent. interest in the equity of the matrimonial home. The apparent injustice of that situation formed the basis both of the wife's appeal against the order of the Registrar, and her application for a lump sum in favour of the children.
The matter came before His Honour Judge Hutton on 22nd October 1986, when he had the affidavit and oral evidence of the husband and the wife. The learned Judge concluded that the Registrar was right on the facts to reduce the periodical payments for the children to a nominal sum, and he dismissed the wife's appeal against that order. Nevertheless, he acceded to her request to hear the lump sum application at the same time as the appeal, and held that he had jurisdiction to make such an award. He found that the husband did not have the resources from which he could pay a lump sum, unless the matrimonial home was sold and the benefit of his charge was realised. But the learned Judge concluded that it would not be right to order a sale of the home until the younger child had attained the age of 18. Then, the learned Judge considered, the children might find a lump sum very useful indeed for setting up a home or a business.
The agreed notes of his judgment continued as follows: "I find it just to order the husband to pay lump sums in respect of each of the children based on the present valuation of the former matrimonial home. It would not be right to speculate about increases in value in the future. £4,000 for each child to be payable when the younger child reaches 18. If the husband can at that date raise the money,...
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