Michael v Michael
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE O'CONNOR |
| Judgment Date | 15 May 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0515-2 |
| Docket Number | 86/0435 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 May 1986 |
[1986] EWCA Civ J0515-2
Lord Justice O'Connor
Lord Justice Nourse
86/0435
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE GLOUCESTER COUNTY COURT
Royal Courts of Justice
MR G. F. ARTHUR, instructed by Messrs Harmshaw & Hiscott (Monmouth; appeared for the Appellant (Petitioner).
MR P. W. MURPHY, instructed by Messrs Vizards, London Agents for Messrs Vizard & Co. (Monmouth), appeared for the Respondent (Respondent).
This is an appeal by the wife, with the leave of the judge, from an order of His Honour Judge Hutton made in the Gloucester County Court on 28th November 1985 in proceedings for ancillary relief. The learned judge adjourned an application by the husband for lump sum and transfer of property orders, whereas the wife contends that he ought to have dismissed it. The question depends on whether the former matrimonial home, which is now occupied by the wife under a protected tenancy granted by her mother, the freehold owner, is or is not property within section 25 (2) (a) of the Matrimonial Causes Act 1973 as amended.
The parties were married in 1966. They had two daughters, who are now aged 19 and 15. The matrimonial home, at all events latterly, was number 20 Drybridge Street, Monmouth, Gwent, of which the freehold is owned by the wife's mother. On 2nd July 1984 the wife petitioned for divorce. On 7th September 1984 the husband served an answer, which included a prayer for lump sum and transfer of property orders. A decree nisi was granted on 15th May 1985 and custody of the younger daughter was given to the wife. The decree was made absolute on 28th June 1985. The wife and the two daughters have continued to reside at 20 Drybridge Street on payment to her mother of a weekly rent, which is currently £8. The wife has been advised that her tenancy of the property is protected by the Rent Acts.
On 2nd April 1985 the husband gave notice that he intended to apply for directions with regard to ancillary relief and on 23rd April the wife did the same. On 24th April directions were given for filing affidavits on both applications. On 21st May the wife's solicitors wrote to the husband's solicitors, stating: "We are instructed that our client has no legal or equitable interest in the property where she resides. We are instructed that the property in question belongs to our client's mother who is aged 64. It would not appear that our client's father has any interest in the property.
"Our client instructs us that it has been indicated to her over the years that the property will probably be left to her in her mother's will subject possibly to a life interest in favour of her father. We are instructed that our Client's maternal grandmother lived until the age of 86 years. We therefore respectfully suggest that our Client's mother may live for many years. In any event, we respectfully submit that our Client is vulnerable to her mother changing her will, even if there is at present a will in which our Client is a beneficiary with regard to the said property."
On 2nd August the wife swore an affidavit in which she expressed the wish to resist the claim by her husband for a lump sum or a transfer of property order in respect of "any contingent interest" which she might have in respect of the former matrimonial home.
Such was the state of the evidence, so far as material, when the matter came on for an effective hearing before Mr Registrar Ing on 2nd September 1985. He made a number of orders, including one for periodical payments of £15 per week to the younger daughter. He also dismissed the husband's application for lump sum and transfer of property orders, although on a ground which is not now supported by the wife. In due course the husband appealed against that dismissal. Before that, on 8th November, the wife had sworn a further affidavit, paragraph 3 of which was in these terms: "I have always been rather confused as to the ownership of the said property and the interest of my father therein. Over the past 10 years, on two or three occasions, my mother has told me that the property will one day be mine but on other occasions she has informed me that my father will get the property before I do. There has been some talk in the family about the said property being left in trust but I am not sure whether it is a trust from which I will benefit or my children or some other party. At no time has my mother promised in unequivocal terms that I will inherit the property. I have no concrete expectations under my mother's will other than the general expectations any son or daughter possesses. I am one of three children. My two brothers are both married and one of them has one child. The ownership of the said property and its future has never been a subject which I have been able to discuss with my mother freely as she clearly does not wish to discuss it. On a number of occasions, my mother has told me that her will is her own business. I am quite prepared for me only to have a life interest in the said property or no interest whatsoever apart from my Rent Act Tenancy."
At the hearing before the judge on 28th November application was made on behalf of the wife for an adjournment to enable her mother to give evidence. The application was supported by a doctor's certificate, which stated that the mother suffered from high blood pressure, but an adjournment was refused. In allowing the husband's appeal and granting him an adjournment of his application for lump sum and transfer of property orders, the learned judge referred to Hardy v Hardy and Davies v Davies (see below). He said that it was apparent from those authorities that the judge can use his discretion to adjourn an application if he is satisfied that the applicant has prospects of inheriting property from some source. He said that there was evidence of the wife having such an expectation and referred to her latest affidavit. He continued: "I find that the wife has more than a hope of inheriting some property. There is a reasonable prospect of the wife inheriting some property of some value. I rule that it is not too distant."
The question whether an application for a lump sum or transfer of property order should be adjourned is, like any other such question, one for the discretion of the judge who hears the application. But it must be exercised with due regard to those considerations which statute, authority or principle require. Section 25 (2) (a) of the 1973 Act as amended, so far as material, requires that as regards the exercise of its power under (inter alia) sections 23 (1) (c) (lump sum orders) and 24 (property adjustment orders) the court shall in particular have regard to "the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future". Is 20 Drybridge Street property which the wife is likely to have in the foreseeable future? In other words, is it property which she is likely to inherit from her mother? Is she likely to inherit it in the foreseeable future?
In an able argument on behalf of the wife, Mr Arthur cited a number of authorities which bear on this question. I will start by referring to four of them, in each of which it was held by this court that there was property or a financial resource which one of the parties to the marriage was likely to have in the foreseeable future. In the earliest and latest of these, Morris v Morris (1977) 7 Fam. Law 244 and ( Davies v Davies 24th October 1985 unreported), the application was adjourned. In the other two, Priest v Priest (1980) 1 F.L.R. 189 and Milne v Milne (1981) 2 F.L.R. 286, the application was disposed of by giving the applicant a proportionate share of the property if and when the respondent became entitled to it. Either course may he justified on the facts of a particular case, hut neither can be taken unless the property falls within section 25 (2) (a). In each of those four cases the respondent had either a contingent or a vested interest in the property, albeit of an uncertain value.
In Morris v Morris (1977) the husband was a warrant officer in the army who, if he was still serving in 1979, would qualify for a gratuity upon leaving the service, the amount of which would not be less than £4,250 but would depend on the actual length of his service after 1979. (Some of these facts are taken from the judgment of Lord Justice Ackner in Davies v Davies, who had obtained a transcript of the judgments in Morris v Morris.) The county court judge ordered the husband to pay the wife one quarter of the gratuity, if and when he received it, by way of a lump sum, but this court preferred to stand over that part of the application with liberty to either party to restore. In giving the leading judgment, Sir John Pennycuick, having observed that the gratuity would be payable at some unforeseeable date in the future in an amount which was wholly unpredictable, said that it was really impracticable, and would not be just, to make an immediate order for any particular payment or an immediate order for payment in the future of a fraction of the lump sum when it fell...
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