Mark Tattersall v Amanda Tattersall
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Sir Stephen Sedley,Lady Justice Hallett |
| Judgment Date | 09 July 2013 |
| Neutral Citation | [2013] EWCA Civ 774 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B6/2013/0049 |
| Date | 09 July 2013 |
[2013] EWCA Civ 774
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION
HER HONOUR JUDGE WRIGHT
FC11D01750
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Hallett
Lady Justice Black
and
Sir Stephen Sedley
Case No: B6/2013/0049
Ms Michele O'Leary for the Appellant
Ms Sally Jackson (instructed by Hopkin Murray Beskine Solicitors) for the Respondent
Hearing dates: 22nd May 2013
Approved Judgment
This is an appeal against an ancillary relief order made by HHJ Wright in December 2012 reflecting the decisions made by her in a judgment dated 28 September 2012 after a three day hearing in August 2012.
Judge Wright's order regulated the parties' financial positions in the aftermath of their divorce which was finalised in April 2012. The appellant, Mark T, was the respondent in the court below and Amanda Louise T was the petitioner. To avoid confusion, in this judgment I will call them simply the husband and the wife (H and W).
Both parties are in their mid 30s. They were married in September 2000, separating in December 2010. They have one child, E, who is 3 1/2 years old. E lives with W pursuant to a residence order made in December 2011 and reaffirmed in July 2012. At the time of the hearing in front of Judge Wright, there were continuing proceedings relating to E and these are still not resolved. H indicates that he is and at all material times has been actively seeking residence. As things stood when Judge Wright heard the case, however, he was not yet having any contact with E but it was agreed that contact should take place and H was hoping that E would come to stay with him at weekends and in the holidays.
I will set out briefly the facts as they were when the hearing before Judge Wright took place.
Both parties were employed.
Until March 2011, W had been working at the University of Cambridge as a researcher. The judge did not set out what W's earnings were in that job. H asserts in his skeleton argument for this appeal that her salary was approximately £37,000 gross. Having given up the Cambridge job at around the time of the separation, there was a period when W did not work. Then in February 2012 she took up employment again, this time with the University of Oxford. Her gross salary was £28,000 per annum, producing a net income of £1,725 per month. She had the additional benefit of nursery vouchers; payments to the nursery were made directly from her salary leaving her with £1,100 per month. She received £88 per month by way of child benefit and had child support payments from H of £572 per month. Her total net income was therefore approximately £1,760 per month after nursery costs were paid.
H had been employed as a clinical lecturer in obstetrics and gynaecology at the University of Liverpool since January 2011. He had been earning approximately £75,000 per annum in this job, giving him an average net income of around £4,000 per month. Shortly before the hearing he reduced his working hours, cutting out weekends as he did not wish to work then, particularly once he had the opportunity to see E at weekends. He was earning around £2,400 per month net at the time of the hearing. From H's skeleton argument for the appeal, it seems that may equate to a gross salary of approximately £46,500.
During their marriage, the parties lived and worked in various university cities. Their practice had been to buy a property to live in wherever they were based at the time and then to keep it and rent it out when they moved on. They had accumulated five properties in all, in Oxford, Cambridge, London, Liverpool and Birmingham. W was living in none of the properties; she was renting a property in Oxford. H was living in the Liverpool property, a two bedroomed flat which met his housing needs at present and for the foreseeable future. The judge worked on the estimated net values of each of the properties after deduction of the outstanding mortgages and costs of sale. The figures she took were:
| Cambridge | Net equity £45,052 |
| London | Net equity £71,092 |
| Oxford | Net equity £73,845 |
| Birmingham | Net equity at best nil |
| Liverpool | Net equity £27,205 |
The Cambridge property was unoccupied and could be sold.
The London property was let on an assured short hold tenancy. There was a potential difficulty over selling it as an internal wall had been created without planning permission by the previous owners. The judge accordingly accepted as realistic a valuation for it of £374,950 which proceeded on the basis that it was a 2/3 bedroomed unit rather than a 3/4 bedroomed unit. H says that the rental income from it, net of expenses, is £1,325 per month and he says that there is no income tax to pay on this or indeed on any of the rental income from any of the properties.
The Oxford property was also let on an assured short hold tenancy. The rental income amounted to £440 per month net of expenses. The judge said that it was common ground that this property should be sold although I am not sure that that remained H's position before us. The mortgage was a buy to let mortgage and W's case was that she could not return to live in the property without changing the mortgage to a normal repayment mortgage and in any event, she did not wish to do so because the property was not in a good catchment area for schools.
The valuation of the Birmingham property, which is rented, was in dispute. A joint valuation had been obtained in January 2012 which put the value at £80,000. W attempted to persuade the judge that it was worth more but, there not being any other reliable valuation evidence, the judge accepted the figure of £80,000. H was prepared to retain this property rather than sell it and potentially end up with negative equity. There is no mention of the property producing any rental income in excess of the expenses of it.
Other capital available to the parties was:
| Accrued rent after payment of debts | £8,331 |
| H's investments | £10,546 |
| W's pension CETV | £23,250 |
| H's pension CETV | £42,626 |
The parties were agreed that the difference between their pension entitlements would be dealt with by adjustment in relation to the rest of their capital rather than by the making of a pension sharing order.
As a result of an arrangement arrived at between the parties during the hearing, each would have a car of similar value, free of loans.
There were significant debts as follows:
| W's debts | Loans from friends and family £13,840
Outstanding legal costs (estimate) £20,085
|
| H's debts | 3 credit card accounts in relation to liabilities from the marriage totalling £12,770 Sums due as a result of litigation with JS Bloor:
|
H acted in person throughout the proceedings at first instance hence the absence of any legal costs amongst his debts.
The judge assessed the parties' future income positions. She decided that W was likely to continue earning at the same rate for the next few years, certainly whilst E was at nursery and for the first few years of primary school, although in due course her income might increase if she got a senior post. The judge did not attribute any rental income to W. She worked on the basis that W would buy a property and that she would have to sell such rented properties as were hers following the hearing in order to do so.
As for H, the judge took account of his wish to see E but did not consider that arrangements to see her, even at weekends and in the holidays, would preclude him from working or being on call on some weekends. She worked on the basis that he may well find that his ability to work and pursue his career would improve so that he could return quite quickly to his higher income.
The judge took W's monthly income as £1,100 net from employment after deduction of the nursery costs, plus child benefit of £88 and CSA payments from H of £572, a total of £1,760. She took her monthly income needs as approximately £2,250 after meeting child care costs, which was rather less than W's own estimate. W's present income of £1,760 per month left a shortfall. The judge proceeded on the basis that W would need maintenance from H for herself and E at the rate of approximately £1,070 per month (including the CSA element). She took that figure as the foundation for the periodical payments order she made. She ordered H to make periodical payments at that rate, index-linked, at least until E started secondary school in 2020. She did not impose a bar pursuant to section 28(1A) Matrimonial Causes Act 1973 on W applying for an extension of the term at that stage but did impose such a bar in 2027 when E will be 18. The judge's calculation was based on W purchasing a property with a mortgage of £100,000, costing around £500 per month. W's case was that she wanted to buy a property in Kidlington and that that would cost about £250,000 and the judge accepted this plan.
The judge took the view that H's income needs could be catered for from the £2,900 which, working on the assumption he would revert to earning about £4,000 net per month, she considered he would have left per month after paying W £1,070 per month. She estimated his mortgage repayment...
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