Lauder v Lauder

JurisdictionEngland & Wales
CourtFamily Division
JudgeMRS JUSTICE BARON
Judgment Date21 March 2007
Neutral Citation[2007] EWHC 1227 (Fam)
Docket NumberCase No: FD84D08661
Date21 March 2007

[2007] EWHC 1227 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand

London WC2A 2LL

Before

Mrs Justice Baron

Case No: FD84D08661

Between
Mrs Barbara Lauder
Appellant
and
Mr Keith Lauder
Respondent

MR BENEDICT SEFI appeared on behalf of the APPELLANT

MISS DEBORAH EATON appeared on behalf of the RESPONDENT

APPROVED JUDGMENT

MRS JUSTICE BARON
1

This is an appeal by Barbara Vera Doris Lauder (to whom, for ease of reference, I shall refer to as “the wife”) concerning an order made by District Judge McGregor on the 4 April 2006. On that occasion the learned District Judge dealt with an application for a variation of the wife's periodical payments made by consent in June 1988. She also considered whether to capitalise such maintenance as she ordered. After two days of evidence the District Judge made the following order:

“(i) The order of 16 June 1988, insofar as it relates to periodical payments for the Petitioner, be varied and that as from 14 December 2004 the respondent, Keith Alan Lauder, do pay or cause to be paid periodical payments at the rate of £40,000 per annum during joint lives, until the Petitioner's remarriage or further order, credit to be given for all sums paid to the Petitioner to date.

“(ii) On or before 5 May 2006 the husband to pay to the Petitioner a lump sum of £500,000 pursuant to section 31.7(b) of the Matrimonial Causes Act.”

2

Upon the payment of such sum all the wife's claims under the Matrimonial Causes Act 1973 and under the Inheritance (Provision for Family and Dependants) Act 1975 were dismissed. The husband was ordered to pay two-thirds of the wife's costs. The lump sum of £500,000 was in addition to a payment of £50,000 which had been made on account to the wife at an earlier stage of the proceedings. I suspect that capital went towards the arrears under paragraph (i) of the order because the District Judge considered there had been inadequate maintenance paid from the date of the wife's application.

3

The lump sum was calculated using the 3 per cent tables in Mr Duckworth's well known book using a multiplicand of 40,000 and a multiplier of 12.8. The total of £512,000 was rounded down. The wife's counsel, Mr Sefi, suggested that this calculation was more appropriate than a strict Duxbury (albeit that, it is fair to note, his primary submission was that the wife should receive a lump sum based on the cost of the annuity).

4

At the outset of this appeal I remind myself of the case of Cordle v Cordle [2002] 1FLR 207. The headnote reads as follows:

“It is now the case that so far as any appeal from a District Judge in ancillary relief to a judge it has to be demonstrated that there has been some procedural irregularity or that in conducting the necessary balancing exercise the District Judge has taken into account matters which were irrelevant or ignored matters which were relevant or has otherwise arrived at a conclusion which was plainly wrong. Equally, a judge hearing such an appeal should not admit fresh evidence unless there is a need to do so on the application of the more liberal rules for the admission of fresh evidence recognised as necessary in Family proceedings.”

5

Accordingly, I am clear in the context of this case that I must uphold the District Judge's decision unless I find that it falls within that clearly expressed ambit.

6

This appeal addresses a number of principal issues as follows:

(a) whether an upward variation of the 1988 order made should be based on reasonable requirements (as the District Judge found) or whether the wife is entitled to a proportional share of the joint income regardless of her budget;

(b) whether the District Judge made inadequate findings of fact as to the value of the husband's capital wealth;

(c) whether, and if so in what manner, the appeal court should resolve the issue of the valuation of a property known as Brake Shear House at 162 High Street, Barnet;

(d) whether the capitalisation of periodical payments should be calculated on the basis of a Duxbury table or on the basis of annuity rates as set out in “At a Glance”;

(e) whether the order for costs was wrong.

7

A number of points of law are taken on behalf of the wife as follows:

(a) since the advent of the case of White v White and, certainly since Miller v McFarlane, periodical payments should no longer be assessed on the basis of reasonable requirements/needs of the recipient, even if interpreted generously, but should be awarded as a proportion of the payor's income;

(b) the passage in the case of Cornick (Number 2) on which the District Judge relied should be now regarded as superseded by the House of Lords Authorities, namely, White and Miller;

(c) the endorsement of Cornick (Number 3) in the case of Miller v McFarlane should lead to a conclusion that the case of Pearce should no longer be followed except for the general proposition that once a capital order is made the court cannot revisit it;

(d) the assessment of periodical payments should be made by the judge taking into account all statutory matters with the award being determined on the basis of fairness;

(e) in computing a capitalisation of periodical payments due to an elderly payee the application of a Duxbury table may be inappropriate, particularly when share prices have reached an historical high. Therefore annuity rates produce a fairer outcome. This is said to be in line with the case of A v A decided by Singer J.

8

Specific criticisms are made of the District Judge's approach in that she failed to address the change in circumstances as is required under section 31(7), in that she failed to make any proper analysis or finding about the extent of the husband's financial resources. It is asserted that she discriminated in his favour by attributing to him some special value contribution on the basis of the assets that were built up, as she described it, by his “hard work and skill”. It is submitted that this is a misunderstanding of the case of Cornick (Number 2).

The Factual Matrix

9

The wife was born on 2 February 1937 and so she is now 70 years old. Mr Keith Lauder (“the husband”) was born on 25 May 1938 and so he is fast approaching 69 years old. The parties were married on 26 August 1961 and have three children. Deborah, born on 6 June 1965 (now 41 years old) is obviously a talented girl and studied for a BSc in psychology. Madeleine, born on 11 June 1967 (almost 40 years old) took a diploma in Cordon Bleu cookery and hotel management. Alison, the youngest, was born on 16 March 1971 (now 36 years old) also went on to tertiary education.

10

The former matrimonial home was a property called Walnut Lodge, Barnet Lane in Totteridge. In 1988 it was worth somewhere in the region of £350,000 to £360,000. It was a large property with an adjacent field and sufficient facilities from which to run a small livery business.

11

So far as I can tell, this marriage was in difficulties by 1984 at the latest. The Decree Nisi was made on 20 February 1985 with the Absolute being granted on 25 November 1985. Despite this fact, the family continued to live together in the former matrimonial home although the parties had separate bedrooms. At the date of the divorce the children were aged respectively 20, 18 and 14 years old. I remind myself that this marriage lasted for 24 years and during it these parties built up significant assets. They had what has been described as a “good middle-class lifestyle”.

12

During the course of the marriage the wife suffered from ill health. I have seen a report by an expert called Dr B who reported that the wife has connective tissue diseases, including scleroderma, polyomysitis and lupus. She also has arthritis of her hips and shoulders. In November 2003 her right hip was replaced. The operation was only partially successful because she suffered foot problems which affected her mobility. In addition she had chronic back pain and muscle problems. The lupus means that she suffers from cold hands with decreased dexterity. Her prognosis, although, and I quote, she is expected “to have a slightly reduced life expectancy due to her connective tissue diseases”“does not enable us to give an accurate assessment of her prognosis. Many patients survive into their 80s”. In reality, the wife may well require a number of years of financial help to enable her to live a comfortable lifestyle, or, at least, to enable her to carry out activities of daily living without too much stress. Her problems are mainly of mobility but she is described as “being in very good spirit and not one to be deterred by her disability”. Her symptoms are controlled by the use of powerful drugs. Even so, this wife has to undergo regular visits to hospital.

13

Despite all these problems, on separation the wife went to work in a secretarial capacity. At first, she earned about £6,500 gross, although over time this sum increased to some £23,500. She retired in about 2000 (when she was 62 years old) with a retirement package worth £15,000. Given her disabilities, she is to be commended for her attempts to make herself self-sufficient. Of course, given her age at the date of divorce (about 50 years old) and her continuing duties to the children (the younger of whom was only 14 years old) she was not in a position to command a higher salary. I doubt that she was able to make any significant savings out of her modest earnings. At the date of separation the youngest child was still in full-time education and she went on to university. It is conceded by the husband that the wife continued to make a contribution to the welfare of the family until the youngest child ceased...

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13 cases
  • W v W (Periodical payments: Variation)
    • United Kingdom
    • Family Division
    • 6 November 2009
    ...when dealing with the desirability of effecting a clean break, said that independent finances and self-sufficiency are the aims. 55 In Lauder v Lauder [2007] 2 FLR 802, Baron J heard an appeal from a District Judge who had determined a former wife's application for the variation of a period......
  • Kim Waggott v William H Waggott
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    • 11 April 2018
    ...her to apply inherited capital (as opposed to the income generated therefrom) to the meeting of her maintenance needs: Lauder v Lauder [2007] 2 FLR 802, para 64, per Baron J. But I am clear that it is impossible to be categorical about what the law expects in this area. No doubt there are c......
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    • Family Division
    • 29 January 2008
    ...of the child maintenance originally provided; Miller v Miller; McFarlane v McFarlane[2006] 2 FCR 213 applied; Lauder v Lauder[2007] EWHC 1227 (Fam) (2) In the instant case, the wife was entitled to a substantial increase in the level of periodical payments which had been agreed over six yea......
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    • Court of Appeal (Civil Division)
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    ...2 FLR 1093 Vaughan v Vaughan [2010] 2 FLR 242 Mc Farlane (No 2) [2009] 2 FLR 1322 B v B (Ancillary Relief) [2008] 2 FLR 1627 Lauder v Lauder [2007] 2 FLR 802 the Family Court. Lord Justice Kitchin 49 I agree. Lord Justice Moore-Bick 50 I agree Footnote: W v W (Financial Remedies) [20......
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