Martin v Martin

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Cairns,Lord Justice Stephenson,Lord Justice Bridge
Judgment Date14 June 1976
Judgment citation (vLex)[1976] EWCA Civ J0614-2

[1976] EWCA Civ J0614-2

In The Supreme Court of Judicature

Court of Appeal

(Appeal of Respondent Husband from Order of Mr. Justice Purchas London, February 25, 1976.)

Before:

Lord Justice Cairns

Lord Justice Stephenson and

Lord Justice Bridge

Martin
(Respondent - Wife)
and
Martin
(Appellant - Husband)

MR. J. JACKSON, Q. C. and MR. P. FOSTER, (instructed by Messrs. Veitch & Co., Agents for Messrs. Stanley Wasbrough & Co. of Bristol) appeared on behalf of the Appellant (Husband).

MR. D. A. HOLLIS, Q. C. and MR. P. MATTHEWS, (instructed by Messrs. James & Charles Dodd) appeared on behalf of the Respondent (Wife).

Lord Justice Cairns
1

This is an appeal by leave of this court from a decision of Mr. Justice Purchas on applications under Section 17 of the Married Women's Property Act 1882 and Sections 23 and 24 of the Matrimonial Causes Act 1973. I shall refer to the parties as "the husband" and "the wife", though the marriage has now been dissolved.

2

No order was made under the Married Women's Property Act 1882, but under the Matrimonial Causes Act 1973 an order was made for the husband to pay a lump sum of £5,000 to the wife and to transfer a farm and his interest in a small sum in a joint banking account. There was also an order for periodical payments in a nominal sum. The husband appeals, contending that he should make no payment of any lump sum to the wife.

3

Mr. Justice Purchas delivered a long and careful reserved judgment which is now reported in 1976 2 W. L. R. p. 901, and I shall give only a brief summary of the facts. The marriage was on the 6th June, 1942, when the husband was 24 and the wife 22 years of age. There are no children. They had practically no money when they married. After some temporary separations the marriage broke up in November, 1969, when the husband left the matrimonial home. In December, 1974, the wife petitioned for divorce on the ground of five years' separation. A decree nisi was pronounced on the 26th June, 1975, and has since been made absolute: but neither party has re-married.

4

Up to 1961 the marriage was happy. In that year Potts Farm, Tenterden, Kent, was bought fey £11,800 from part of the proceeds of the previous matrimonial hone, and it was conveyed into the name of the husband. Both of them worked hard at the farm. The judgeheld that the wife was the more skilful farmer. Between 1961 and 1967 the marriage deteriorated. The wife left for short periods in 1963 and 1966 and for over a year in 1967-66. Then there was a reconciliation on the basis of a written agreement dated 7th March, 1968, providing for Potts Farm and various other assets to be transferred into the joint names of husband and wife. The judge said that quite apart from the agreement; he would have reached the same conclusion as to the respective interests in the assets. One of the assets was a deposit account with the Westminster Bank. It was put into their joint names in June, 1968. That is an account with a credit balance of only £102. Nothing else was done in pursuance of the agreement.

5

When the husband left the wife in November, 1969, he went to live with his mother at 20, Sprotlands Avenue, Ashford (a house which was in the husband's name, but was one of the properties listed in the agreement of March, 1968). Shortly before that the husband had met a Mrs. Freame, a widow, and they became friendly. For some time in 1970 there was a business association between them. The judge was not satisfied that their relationship was ever a sexual one, though he found that it was a close one.

6

Mrs. Freame was a witness for the husband at the hearing before the learned judge. The judge found that the wife was an honest witness and that the husband and Mrs. Freame were unreliable. He rejected their evidence where it was in conflict with that of the wife, and where it was not in conflict he accepted it only when it was corroborated or in accordance with common sense. I accept all those findings of fact, which are based on that assessment of the witnesses, depending so much on the impression that they made in thewitness box. Accordingly, I shall recite as facts the events of the years from 1969 onwards as found by the judge without; generally indicating whether the husband or Mrs. Freame gave a different account.

7

In June, 1970, the husband's mother died. No. 20 Sprotlands Avenue was sold, the net proceeds being £2,538. This money was used as part of the purchase price of a shop and post office at Haywards Heath which the husband bought that year. Also in June, 1970, Mrs. Freame moved to Haywards Heath. To buy the shop and post office the husband borrowed £14,000 from the National Westminster Bank, Gravesend, secured on the deeds of Potts Farm. To do that he had to clear the overdraft, then standing at £1,834, on the farm account at Ashford. For Mrs. Freame's residence at Haywards Heath a house called "Kelston" was bought in the joint names of the husband and Mrs. Freame. The price of it was £11,750, to which the husband contributed £1,752. For the next year or thereabouts the husband operated the shop and post office with the assistance of Mrs. Freame. He lived partly over the post office and partly at "Kelston".

8

During 1971, probably because Mrs. Freame wanted to run a hotel or guesthouse and partly because the shop and post office was not very successful, the husband began looking for a likely property and found one called The Old Rectory at Nettlecombe in Somerset. It was bought with the intention of being run by the husband and Mrs. Freame as a joint enterprise. The shop and post office were sold, and it was not clear what the yield was or what happened to the proceeds. The purchase price of The Old Rectory was £20,000. It was conveyed to the husband and Mrs. Freame jointly on the 14th April, 1972, and a trust deed of the same date indicated that thepurchase price was provided as to £1,100 by the husband, £13,900 by Mrs. Freame, and £5,000 from money borrowed by them from the husband's account at the Midland Bank, Minehead. Until 1974 The Old Rectory was run as a guesthouse by the husband and Mrs. Freame, not apparently very successfully.

9

It was, however, sold in 1974 for £43,000, and another property called Downhayes Farm was bought. The purchase price was £90,000, plus £10,000 for stock and £1,000 for hay. This was raised mainly, if not wholly, from the husband's bank accounts. The judge found that both The Old Rectory and Downhayes Farm were run as joint enterprises. The husband regarded half the profit on the sale of the farm as his. None of the stock of Downhayes Farm belonged separately to Mrs. Freame. The husband took part in running the farm. He and Mrs. Freame were equal partners in it.

10

In October, 1975, Downhayes Farm was sold for £65,000 and the Wyndcott Hotel at Minehead was bought for £38,000, of which £28,000 was borrowed, secured by a charge on the Wyndcott Hotel. The evidence of the husband and Mrs. Freame was that this was Mrs. Freame's sole venture; that she provided the £10,000 difference between the purchase price and the sum borrowed; and that at this stage she and the husband parted company. The judge rejected this evidence and held that the Wyndcott Hotel was bought as another joint enterprise and that the husband's interest in it was not less than half of the difference between £38,000 and £28,000, namely, £5,000.

11

Meanwhile the wife had continued to operate Potts Farm with increasing success. In 1969 she had been in agreement with the husband that the farm should be sold. But by January, 1970, shehad made it clear that she wished to stay there, despite which the husband hindered the proper running of the farm by trying to sell it and having "For Sale" notices put up. This caused the profitability of the farm to drop, and it was not until 1973 that it again became profitable. In the year to the 31st October, 1973, the benefits to the wife from the farm was £841, and in the year to the 31st October, 1974, It was £2,098. That was the last year for which accounts of the farm were available. The value of potts Farm with its stock was-agreed at £53,775, and it was agreed that it was charged with the overdraft at the National Westminster Bank, Gravesend, amounting to £21,887 (made up of the sum of about £14,000 borrowed by the husband and the interest accrued thereon).

12

Apart from Potts Farm there had been the following assets of which on the judge's findings the wife was entitled to a half share; 20 Sprotlands Avenue, on the sale of which the husband obtained for himself £2,250; £1,000 in premium bonds which the...

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