Masefield v Alexander (Lump Sum: Extension of Time)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE ROSE,SIR TASKER WATKINS |
| Judgment Date | 22 July 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0722-10 |
| Docket Number | 94/0945/F |
| Court | Court of Appeal (Civil Division) |
| Date | 22 July 1994 |
[1994] EWCA Civ J0722-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (FAMILY DIVISION)
ON APPEAL FROM THE MAYOR'S & CITY OF LONDON COURT
Before: Lord Justice Butler-Sloss Lord Justice Rose and Sir Tasker Watkins
94/0945/F
MR M POINTER (Instructed by Messrs Gordon Dadds, London W1) appeared on behalf of the APPELLANT
LORD MESTON (Instructed by Messrs Hunt, Hunt & Houghtons, Essex) appeared on behalf of the RESPONDENT
Friday 22 July 1994
This is an appeal with the leave of this court given on 12 July 1994 by a husband from the orders of Johnson J made on 8 July 1994 in which the judge refused an application for leave to appeal out of time from the order of District Judge Million.
The most important issue arises as to whether a court can extend the time within which a party is to pay a lump sum, and if there is jurisdiction, ought the time to be extended? The District Judge held that he had no jurisdiction to extend time. The Judge held he had jurisdiction, but refused to do so.
The short history is that the parties were married on 20 February 1988, having lived together since 1985. The wife, by a previous marriage, had two sons aged 12 and 10. There is one child of the present marriage, a girl aged 4, having been born on 6 March 1990. The parties lived in a house in SW6, bought by the husband in 1983 before he and the wife had starting cohabiting. The marriage lasted four years, and the relationship lasted seven years. It ended with the wife leaving to live with another man. She made an application to oust the husband from the house. That application was dismissed. The husband petitioned for divorce. There was a decree absolute on 9 October 1992. Since 1993 the husband has been working in Kuwait.
On 4 October 1993 there was a consent order made by the Senior District Judge. The relevant part of it reads:
"The petitioner do pay to the respondent a lump sum of £100,000 on or before 1 January 1994 to enable her to purchase a property ('the new property')."
(b), (c) and (d) are consequential provisions in respect of that lump
sum. Sub-paragraph (2) reads:
"In default of the payment of the said sum on or before 1 January 1994, the former matrimonial home known as and situate at 65 Campana Road, London SW6, shall be sold forthwith, and the net proceeds of sale (after the redemption of the mortgage thereon in favour of Citibank and the payment of the reasonable legal and estate agents' of sale) shall be divided as to 61.24% to the respondent and the balance to the petitioner."
Paragraph 7:
"There be liberty to apply as to implementation and directions for sale."
The rest of the order is in the standard form, dismissing the rights of the parties under the Inheritance (Provision for Family and Dependants) Act and so on.
On 31 December 1993, there was an application by the husband to extend time. This was opposed by the wife. The application was dismissed by the District Judge on 12 January 1994, as I have already said, on the grounds of lack of jurisdiction.
On 3 February 1994, the £100,000 became available, and the sum together with interest was tendered to the wife. It was rejected. Before the Judge in July, on appeal, there were several applications: the application for an extension of time by the husband to appeal the order of 12 January; an application by the husband for an extension of time within which to pay the lump sum if leave was given; an application by the wife for directions for the sale of the house; and an application by the husband that the charge (a sum of £33,333 payable back to the husband upon certain eventualities) should be effective under the second part of the order, if the second part of the order was to be implemented (that part which I have just read at paragraph (2)).
The effect of part 2 of the order coming into effect for the wife meant that instead of a lump sum of £100,000, with a charge back to the husband of approximately £33,000 in due course, there would be a sale of the husband's house which is now more valuable than estimated at the October 1993 hearing. The wife had found a purchaser who was waiting to complete. On the sale of the property, she would receive £167,000 plus, of which £111,000 plus would be an outright payment, and the balance repayable to the husband. There is a great deal of antagonism between the parties, and feelings are running high.
The Judge did not set out in detail his conclusions on why he held he had jurisdiction to extend time. However, in the light of the previous authorities to which we have been referred, we felt it necessary to decide the question of jurisdiction, and why we consider that the Judge was justified in concluding he had the power to extend time.
Jurisdiction
The agreement of the parties has been incorporated in the order of the court. The legal effect of the consent order is derived from the court order and not from the agreement (See de Lasala v de Lasala [1980] AC 586). Ormrod LJ, in Thwaite v Thwaite [1982] FD 1, said that consent orders must be treated as orders of the court, and treated in the same way as non-consensual orders. (See also Balcombe LJ in Potter v Potter [1990 2 FLR 27 at 30).
It is also clear that the court does not have the jurisdiction to vary a lump sum order under section 31 of the Matrimonial Causes Act 1973. Parliament has decided that a lump sum order is to be excluded from those orders which are capable of variation. The problem arises as to whether the extension of time sought is to be treated as a variation of the lump sum order. There is provision in the consent order under review for liberty to apply, but as Lord Meston has argued (correctly in my view) it begs the question whether there is jurisdiction. If there is otherwise no jurisdiction, the parties cannot give such jurisdiction to the court.
We have been referred to three cases on extension of time where the order itself could not be varied. In Gregory v Wainwright (1984) Fam Law 86, Sheldon J (sitting at first instance) extended time in circumstances somewhat similar to the present. The husband was due to pay a lump sum of £10,000 which he was unable to pay within the specified time. One substantial difference in the facts was that on the payment of the sum the wife was to transfer her interest in the former matrimonial home to the husband. The Judge drew a distinction between the substantive parts of the property adjustment order and the time for performance.
The second decision was Knibb v Knibb [1987] 2 FLR 396, in which the wife was given an option to redeem a charge on the former matrimonial home in favour of the husband. She was unable to do so within the stated time. She asked for an extension of seven days, which was refused by the District Judge, and granted by the Judge. In allowing the appeal, and holding there was no power to extend time, Sheldon J (dealing with Order 13, Rule 4) at page 398, said:
"In my judgment, that is a procedural position and no more, relating to an act in the proceedings, or a step in the actual question. It does not empower the court to vary the terms of a duly constituted property adjustment order, particularly what may be (and in this instance was) a vital term as to the time within which an option could be exercised, still less so if to do so would be to subvert the clear intention and effect of section 31 of the 1973 Act."
Significantly, in my view, Fox LJ, at page 399, said:
"What was involved here was the exercise of a property right, namely, to extinguish the charge on payment of a specified sum of money.
The judge accepted that he could not alter the amount of the sum. That is correct. He had no power either to extend or abridge or alter the property right in any respect whether as to amount or in relation to time."
In the third case Potter v Potter (supra), this court held in constructing of an order that the payment of the lump sum and the transfer of the house were reciprocal obligations and interdependent, and it was not necessary for the lump sum to be paid by the specified date. The facts of that case are different from the present, but Balcombe LJ, at page 32D said:
"In view of the conclusion which I have reached …. it is unnecessary to consider whether, upon a different construction, the court has power to extend the time for the payment of the lump sum. There is a certain logic in the husband's argument that to extend time for payment amounts to a variation in the date of payment —see Order 22, rule 10(1) of the County Court Rules 1981 —and that such a variation, not being within those permitted by section 31 of the Matrimonial Causes...
To continue reading
Request your trial
-
Re N (A Child) (Payments for Benefit of Child)
...hearing: burden of proof), Re[2008] EWCA Civ 1261, [2008] All ER (D) 187 (Nov), (2008) Times, 16 December. Masefield v Alexander[1995] 2 FCR 663, [1995] 1 FLR 100, N (a child) (McKenzie friends: rights of audience), Re[2008] EWHC 2042 (Fam), [2008] 3 FCR 642, [2008] 2 FLR 1899, [2008] 1 WLR......
-
H v GH
...a power to extend the time for payment of a lump sum which is part of a series of lump sums. Established by CA in Masefield v Alexander [1995] 1 FLR 100 and approved in Hamilton v 14 Notwithstanding the concession made by his predecessor, Mr Ken Collins, Counsel now instructed for the Husba......
-
Re N (Financial Provision: Dependency)
...Practice 1999, to the County Court Practice 1997, to two different editions of Duckworth's Matrimonial Property & Finance, and to Masefield v Alexander [1995] 1 FLR 100) I had inherent jurisdiction to enlarge time. Therefore, he submitted, I had discretion to enlarge time. 119 Acknowledging......
-
Birch v Birch
...an inherent jurisdiction in the court to direct a modest extension of the time for its payment provided in the order: Masefield v Alexander (Lump Sum: Extension of Time) [1995] 1 FLR 100. 27 With respect to the Court of Appeal in the Omielan case, I cannot subscribe to its determination of ......