Kyte v Kyte

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date1988
Date1988

PURCHAS, NICHOLLS AND RUSSELL, L JJ

Financial provision – conduct of the parties – conduct such that "it would be inequitable to ignore it" – not necessary for one party to be blameless for it to be inequitable to ignore behaviour of other party – imbalance of conduct of parties may lead to it being inequitable for ignore comparative conduct of parties.

The parties were married in 1975. There were four children of the family. From about 1980 the husband suffered from depression resulting in a number of suicide attempts over the following two years. The particulars of the husband's behaviour relied upon by the wife in her petition for divorce based on s 1(2)(b) of the Matrimonial Causes Act 1973 were generally accepted by the husband. He subsequently found out that the wife had had an adulterous relationship with the party cited and then amended his answer to include a cross-prayer for divorce on the ground of the wife's adultery. Cross-decrees were granted on the petition and answer. The wife applied for ancillary relief.

The facts found by the registrar were that the husband's behaviour, as a result of his condition, justified a petition under s 1(2)(b) of the 1973 Act. He also found that the wife had lied on oath in presenting her version of events. In particular, he found that her relationship with the party cited had started considerably earlier than she claimed, and that she had obtained an ouster order against the husband on manufactured circumstances to enable the party cited to live with her in the matrimonial home. The registrar further found that when the husband attempted suicide in July 1983 the wife took no action to prevent him and only called for medical assistance when she was left with no alternative; and that while the husband was still recovering from this attempt, the wife complied with a request from the husband to assist him to kill himself by taking him alcohol and drugs. The registrar concluded that it was in her mind that if the husband was successful she would inherit his estate.

The registrar was of opinion that it would be inequitable to disregard the wife's conduct and he therefore took it into account together with the conduct of the husband, all the circumstances arising during the marriage, and the financial resources and needs of the parties in accordance with s 25 of the 1973 Act. As a result, he ordered that the husband's interest in the matrimonial home be transferred to the wife and that her interest in the husband's limited company be transferred to him. The registrar dismissed the wife's claim for periodical payments and a lump sum, and ordered periodical payments for the children.

The wife appealed and the matter came before Ewbank, J. The Judge did not hear evidence

[1988] FCR 325 at 326

from witnesses, except from the husband as to his financial position. He found that the husband's total assets were £200,000 and not £160,000 as found by the registrar. The husband accepted that the Judge's finding as to his assets was correct. The Judge found, following Vasey v Vasey [1985] FLR 596, that the wife's conduct had to be viewed in the light of the history of the marriage and not taken in isolation. He further found that the registrar had treated the wife's conduct in isolation and was, therefore, wrong to come to the conclusion that it would be inequitable to disregard it. Consequently he allowed the appeal and ordered that the husband pay a lump sum of £14,000 to the wife in addition to the orders made by the registrar.

The husband appealed.

Held – allowing the appeal: (1) The significant changes effected by the amendment of s 25 of the Matrimonial Causes Act 1973 by the Matrimonial and Family Proceedings Act 1984 involved: (i) an emphasis that the welfare of any minor child of the family must be given first consideration; (ii) that, subject to (i), the factors to be taken into account included the conduct of each of the parties if it was such "that it would be inequitable to disregard it", and (iii) the revocation of the duty of the court to put the parties in the position they would have been if the marriage had not broken down where, having regard to their conduct, it was just to do so. The reference to "the conduct of each of the parties" did not envisage one of them being blameless (which, it was argued, appeared to be shown by such cases as Robinson v Robinson [1983] Fam 42), and there were no restricting words or meaning to be inferred from the wording of the amended statutory provision. The court was entitled to look at the whole picture, including conduct which might or might not have contributed to the breakdown of the marriage or which in some other way made it inequitable to ignore the conduct of each of the parties.

Per curiam: It might well be argued that the words of s 25 of the 1973 Act as amended by the 1984 Act should be read so as to give effect to the ordinary meaning of the words used. This was not the test of gross and obvious conduct as developed in Wachtel v Wachtel [1973] Fam 72, or conduct such as to make it repugnant to ignore it as between the parties. The use of the words "it would in the opinion of the court be inequitable to disregard" the conduct of each of the parties might give a broader discretion to the court than envisaged hitherto under the authorities.

(2) In this case the Judge was wrong to have reversed the registrar's findings on conduct. The conduct of the wife in failing to prevent or actively assisting the husband's attempts at suicide in 1983 in the presence of the motive of gain, together with her wholly deceitful conduct in relation to her association with the party cited, would have fallen within the concept under the old law and certainly rendered it inequitable to ignore it even against the conduct of the husband.

(3) The Judge had ordered that the husband pay the wife a lump sum of £14,000. This order was based partly on the unchallenged finding of the Judge that the husband had £40,000 more capital assets than the registrar had found, and partly on the Judge's finding that the wife's conduct was irrelevant which had not been upheld on appeal. The Judge had also ordered the husband to pay the wife's costs before the registrar and on appeal. The Judge's order for a lump sum payment would be reduced to £5,000 to take into account the question of conduct he wrongly ignored and having regard to the fact that the wife was enjoying the support of the party cited. The Judge's order on costs could not stand and the registrar's decision that there be no order as to costs would be restored.

Appeal from Ewbank, J.

Francis Burns for the husband.

Martin Allweis for the wife.

[1988] FCR 325 at 327

Cur adv vult

LORD JUSTICE PURCHAS.

This is an appeal by Graham Roger Kyte ("the husband") against an order made by Ewbank, J on 16 January 1987 at Manchester when the Judge allowed an appeal from an order made by the registrar (Mr Registrar Gee) on 7 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 s 25 of the Matrimonial Causes Act 1973 as substituted by s 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 s. 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 ..."

After hearing evidence on 20 August 1986 and submissions made by counsel, the registrar delivered a reserved judgment on 5 Sepember 1986. The wife's application claimed all the usual...

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1 cases
  • K v K (Conduct)
    • United Kingdom
    • Family Division
    • Invalid date
    ....... This matter has been considered before by the court on a number of occasions, in particular in a case called Kyte v Kyte [1988] FCR 325. The registrar who had decided that case at first instance made some observations which were approved by the Court of Appeal. ......

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