Lilford (Lord) v Glynn
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAMP |
| Judgment Date | 12 May 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0512-9 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 May 1978 |
[1978] EWCA Civ J0512-9
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
From: Mr Justice Payne, (Family Div., Liverpool/London)
Lord Justice Stamp
Lord Justice Roskill and
Lord Justice Geoffrey Lane (not present)
(formerly Muriel Norma Lady Lilford)
MR JOSEPH JACKSON, Q.C. and MR JOHN STANNARD (instructed by Messrs. Alsop Stevens Batesons & Co., EC3) appeared on behalf of the Appellant (Petitioner).
MR E. SOMERSET JONES, Q.C. and MISS M. MORNINGTON-ARBRATHAT (instructed by Messrs. Rutherfords, Liverpool) appeared on behalf of the Respondent (Respondent).
I will ask Lord Justice Orr to read the judgment of the court.
LORD JUSTICE ORR: This is an appeal by Lord Lilford, the former husband of the Respondent (but for convenience we shall refer to the parties as the husband and the wife), against those parts of an order made by Mr Justice Payne on 13 December of last year, whereby it was ordered that the husband should pay all the school fees of each of the two children of the marriage, both girls, Clara, then aged 15, and Emma, then aged 13, and should also settle a sum of £25,000 on trust for each of these children for life and, after her death, for her child or children, if any, and, failing children, for the other surviving daughter and her issue. On the same hearing Mr Justice Payne further ordered that the husband should pay, by way of periodical payments, £1,812 a year, less tax, to each of the two daughters until they respectively attained the age of 18, or further order, and that these payments, as well as the payment of the school fees, should be secured by the husband, but the husband does not appeal against those parts of the order.
The marriage of the parties took place on 23 December, 1961, being the husband's fourth and the wife's second marriage, and both have remarried since the divorce. The husband, who is aged 47, was born in South Africa, but came to school in England, and in 1949, following the death of a distant relative, succeeded to the title of Lord Lilford and an interest in substantial property, of which he acquired the capital upon a variation of trusts in 1968. After attending school and university here he returned to South Africa, where he married his first and second wives, both marriages ending in divorce. In 1958 he returned to England with his third wife, also South African, but that marriage also ended in divorce and, by reason of the form of the obligation which he undertook to maintain her, he was, at the time of the hearing before Mr Justice Payne, paying her a sum of £14,000 per year. There were no children of these three marriages. Following the break-up of his subsequent marriage to the Respondent, the husband returned to South Africa in 1975, where he is now living with his fifth wife, whom he married in 1969 and by whom he has a son and two daughters, and he has decided not to return to England. He is undoubtedly a millionaire, and has said informally that he may well be worth£3 million. His attitude has been that it would take longer to make a detailed investigation of his resources than it would to try his fourth wife's claims, and that he has sufficient means to meet any supplemental provision for the children which could be sensibly expended.
The history of his marriage to the Respondent can be briefly summarised. She brought no financial assets into the marriage. He made some financial provision for her former husband and also for her two children, both girls, and one of them married. The parties lived at Heskin Hall, in Lancashire, which he left in September, 1967. She later took wardship proceedings as a result of which the children of the marriage were made wards of court in March, 1968. On 9 May of that year the husband petitioned for divorce alleging cruelty and adultery, but the suit was compromised on agreed terms, which were approved by Judge Bailey on 14 February, 1969, and subsequently embodied in a formal agreement, including the following provisions:
(1) That the wife would not oppose a decree on the ground of her cruelty and the husband would not proceed on his allegations of adultery.
(2) That he would pay her a sum of £20,000 and a further sum of 15,000, to be secured, and would convey to her Heskin Hall and its contents, with certain exceptions.
(3) That he would pay £30,000 to his and his wife's solicitors out of which they were to pay such capital sum as might be required to provide basic school fees for the children, and the balance, and also certain silver was to be settled on trusts for the childrens' benefit.
The payments to the wife, for which this agreement provided, were in addition to substantial gifts of money, shares (half of which the wife has presented to her present husband) and jewellery made by the husband to the wife, and his transfer to her of a house in Halsey Street, and it is not in dispute that, as a result, she has now money and assets worth at least £200,000, and possibly considerably more.
Following the approval of the agreement the husband obtained a decree nisi in May, 1969, which was made absolute in August of the same year, and thereafter both parties remarried, the children remaining, by agreement, in the care of the wife.
On 19 August, 1971, the wife gave notice of an application for periodic payments for the benefit of the children, and later deposed in an affidavit that the trustees of the childrens'settlement, who had previously paid her £125 a quarter for the maintenance of the children, had notified her that they could not continue these payments. The trustees, in an affidavit, stated that so long as the children remained at their present school it was their intention to pay the fees and the cost of uniforms out of the income of the trust fund, if necessary resorting to capital, but that there would be no income available for home maintenance. In these circumstances the parties signed a schedule of agreed terms which recited the desire of both of them that the school bills should be rendered by the school to the trustees and paid by them direct to the school, and they assumed that the trustees would so administer the trust as to give effect to those wishes. On this basis an order was made on 11 June, 1973, by Mr Justice Hollings which provided, inter alia:
(1) that the husband should pay to each of the children periodical payments for the year beginning on 1 June, 1972, of £1,200, less tax, and as from 1 July, 1973, £1,320 a year, less tax, until the children should respectively attain the age of 18; and
(2) that by consent, and to provide for inflation, the payments of £l,320 per year should be increased in the year beginning 1 July, 1976, and subsequent years, by a defined percentage;
it being also stated by leading counsel for the wife that the parties were agreed that neither of them intended to make any application for the variation of these benefits until after 31 May, 1976.
On 30 June, 1976, the wife gave notice of the application which was in due course to come before Mr Justice Payne and in which she originally sought variation of the order of Mr Justice Hollings for periodical payments, an order for security for such payments and lump sum payments for the benefit of each of the children, but the application was amended at the hearing to include an order for a settlement for the benefit of each child.
In her affidavit in support of this application the wife claimed that the periodical payments currently being made, even if adjusted to take account of inflation, did not make reasonable provision for the maintenance of the children, and also alleged that the husband intended to transfer his property out of the jurisdiction, if he had not already done so; and in a subsequent affidavit she...
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