Legrove v Legrove
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WAITE,LORD JUSTICE RALPH GIBSON |
| Judgment Date | 28 March 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0328-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCFMI 93/1831/F |
| Date | 28 March 1994 |
[1994] EWCA Civ J0328-5
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(His Honour Judge Wroath)
Before: Lord Justice Ralph Gibson Lord Justice Waite
CCFMI 93/1831/F
MR. A. PARSONS (Instructed by Messrs. Brutton & Co. Hampshire P01 2HR) appeared on behalf of the Appellant
MISS A. WADDINGTON (Instructed by Messrs. Blake Lapthorn, Hampshire, P01 2QW) appeared on behalf of the Respondent
( )
Monday, 28 March 1994
The resources to which the court is required specifically to have regard when deciding how to exercise the wide powers of capital disposition conferred by Sections 23 and 24 of the Matrimonial Causes Act 1973 include (by S. 25 (2) (a)):
"the ….. property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future….."
That has been interpreted as entitling the court not only to make immediate orders for payment of lump sums to the maintained spouse out of a gratuity actually received on retirement by the maintaining spouse (as in Happe v Happe 1990 2 FLR 212) but also to make anticipatory orders for lump sum payments against a capital gratuity to which the maintaining spouse is only prospectively entitled at some future date.
Thus in Priest v Priest (1980 1 FLR 189) the husband was a serving marine who at the date of the hearing of his W's application for financial relief in 1978 was prospectively entitled on completion of 22 years service in 1983 to a gratuity of £5000. The Court of Appeal approved an anticipatory order that if and when he received his gratuity from the Crown, he should pay a proportion of it to his former wife.
Similar relief in the case of a civilian was approved by this court in Milne v Milne (1981 2 FLR 286), where the Husband was a member of a pension scheme which would entitle him on retirement, at a date not due to occur for another ten years, to receive at his option a commuted proportion of his pension in the form of a lump sum of about £16,000. If he died before retirement a death in service payment of £15,000 would be made to his estate. The anticipatory order made by the court was that, provided the wife was living at the material time, the husband (or his personal representatives) should pay a sum equal to one half of the amount to which he would become entitled under the pension scheme if the appropriate option were exercised or (as the case might be) one half of the death in service benefit.
There is an obvious limit to the extent to which, depending on the particular circumstances of each case, it will be wise or desirable to make such anticipatory orders. Each one of them is bound by its nature to provide a hostage to fortune. The gratuity may turn out to be very much less or very much more than was expected, but however dramatic or unforeseen the intervening developments, it will lie beyond the powers of the court to intervene in capital terms again —even in the interests of doing justice to a changed situation. That is because a lump sum order cannot be varied (see S 31 Matrimonial Causes Act 1973 and Jackson's Matrimonial Finance and Taxation 5th Edn p 159 et seq). Nevertheless the category of such orders is well established by the authorities I have mentioned and by others (see Jackson ubi sit at p 190), and anticipatory lump sum orders against funds which will or may accrue to the maintaining spouse at death or retirement are by no means uncommon.
The appeal in the present case concerns the validity of an anticipatory order made in financial proceedings between the respondent husband and the appellant wife in 1982. The Husband was then serving in the Royal Navy. On 30th September 1982 District Judge Cox in the Portsmouth County Court made the following order ("the 1982 order"):
"IT IS ORDERED that the Respondent [Husband] do make a lump sum payment to the Petitioner [wife] of one third of any lump sum received by him on leaving the Royal Navy less £1000 credit for capital sum deemed to have already been received by the Petitioner".
On 1st January 1992 Section 16 of the Armed Forces Act 1991 came into force. It provides under the heading of "New provisions as to assignments, charges and court orders in respect of naval and marine pay, pensions etc" for the insertion into the Naval Discipline Act 1987 of a new section 128 G reading as follows:
" 128 G —Avoidance of assignment of or charge on naval pay and pensions etc.
(1) Every assignment of or charge on, and every agreement to assign or charge, any pay, pensions, bounty, grants or other allowances in the nature thereof payable to any person in respect of his or any other person's service in Her Majesty's naval forces shall be void.
(2) Save as expressly provided by this Act, no order shall be made by any court the effect of which would be to restrain any person from receiving anything which by virtue of this section he is precluded from assigning and to direct payment thereof to another person.
Sub-section (3) excludes attachment of earnings orders and bankruptcy proceedings from the operation of the section.
The Husband was still in service at the date of the coming into force of that section. He wished to contend that its effect had been to render void the lump sum provision directed by the 1982 order. He accordingly sought, and was granted, leave to appeal out of time to the County Court Judge against the 1982 order on the ground that it had become invalid by statute. At the hearing of the substantive appeal in the Portsmouth County Court on 19 11 93 he was successful. Judge Wroath declared the 1982 order to have been void. The wife now appeals from that decision to this court.
Legislative and case law background
Sections 4 and 5 of the Naval and Marine Pay and Pensions Act 1865 ("the 1865 Act") prohibited assignment of pension and wage rights of certain Royal Navy personnel in these terms:
" 4 Prohibition of assignment of pensions etc
Any assignment, sale, or contract made after the commencement of this Act by an officer, seaman, or marine entitled to any naval pension,…..of or in relation to such pension, allowance …..shall be void.
5 Prohibition of assignment of wages, etc
Any assignment, sale, or contract made after the commencement of this Act, of or relating to any pay, wages, bounty money, grants, or other allowances in the nature thereof, payable in respect of services in Her Majesty's naval or marine force to a person being or having been a subordinate officer, seaman, or marine, shall be void."
The provisions against alienation of equivalent rights of Army and Royal Air Force personnel were contained in S 203 of the Army Act and of the Air Force Act, both enacted in 1955, as follows:
203 Avoidance of assignment of or charge on [air-force] [army] pay, pensions, etc
(1) Every assignment of or charge on, and every agreement to assign or charge, any pay, [military] [air force] award, grant, pension or allowance payable to any person in respect of his or any other person's service in Her Majesty's [military] [air] services shall be void.
(2) Save as expressly provided by this Act, no order shall be made by any court the effect of which would be to restrain any person from receiving anything which by virtue of this section he is precluded from assigning and to direct payment thereof to another person.
It will be observed that S 203 (1) corresponds closely with sections 4 and 5 of the 1865 Act, and to that extent placed airmen and soldiers on the same footing as sailors and marines. Sub-section (2), however, prohibiting expressly the imposition of court payment orders upon funds preserved by sub-section (1) from assignment or charge had no counterpart in the earlier Act. This was held by the Court of Appeal in Cotgrave v...
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