Milne v Milne

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date03 February 1981
Judgment citation (vLex)[1981] EWCA Civ J0203-2
Docket Number81/0080

[1981] EWCA Civ J0203-2




Royal Courts of Justice


Lord Justice Ormrod

Lord Justice Shaw

Mr. Justice Purchas


Marjorie Edith Milne
Victor Desmond Milne


Avril Ann Elsey

MR. R. HILL (instructed by Messrs. Cross & Dickinson, Southampton) appeared on behalf of the Appellant.

MR. K. C. CUTLER (instructed by Messrs. Trethowans, Salisbury) appeared on behalf of the Respondent.


Mr. Justice purchas will deliver the first judgment in this case.


This is an appeal from an order made by His Honour Judge Ewart-James on 29th December 1980 in the Salisbury County Court. The order provided for periodical payments to be made to the wife, Majorie Edith Milne, of £33 per week and to the one relevant child of the family of £15 per week. The learned judge further ordered that, within one month of the order, the husband should open a non-profit insurance policy over a ten year period to make capital provision for the petitioner wife.


The parties were married on 14th May 1947. There were three children, two of whom are now over 18, and the third child, Denise Sharon, who was born on 19th May 1967. She is, therefore, nearly 14 years of age. The parties lived together until April 1979, so they were together for some 32 years. On 16th August 1979 there was an order in the Magistrates' Court at Salisbury, when the magistrates found desertion on the part of the husband, granted the custody of Denise to the wife and ordered payments of £15 per week to the wife and £7.50 per week for Denise. The wife issued a petition on the grounds of adultery; the decree nisi was pronounced on 2nd May 1980 and was made absolute on 2nd July 1980. The wife gave notice of application in the suit claiming periodical payments, an order for transfer of property and an order for a lump sum payment which resulted in the order which is the subject-matter of this appeal.


The husband is employed as a supermarket manager. His earnings are of the order of £7,500 per annum. There are, with the papers, two models showing the financial position of the parties, both prior to the hearing of 29th December 1980 and their position as a result of the order made by the learned judge, but excluding any payments under the life insurance policy.


The notice of appeal asked for an order that there should be no lump sum payment in addition to periodical payments. The ground of the appeal was that there was no jurisdiction in the court to order that the husband should take out a life insurance policy as the learned judge purported to order. Mr. Hill, who has appeared for the appellant husband, has conceded that, on the figures for earnings and liabilities as between the parties, there is no reasonable way in which he can attack the order for periodical payments, provided that the court excludes the liability for the premia which would have to be paid under the policy. In those circumstances, it is not necessary for me in this judgment to set out the details of the financial positions as disclosed in the two models which have been so helpfully prepared by Mr. Hill in support of his appeal.


The main issue has revolved around the power of the court to make the order that the learned judge made in respect of the life insurance policy. The powers are granted by section 23 of the Matrimonial Causes Act 1973. Sub-paragraphs (1) (a) and (1) (b) provide for periodical payments and the securing of those payments if it is seen fit by the court so to do. Sub-paragraph (c) deals with the power to order a lump sum payment. Such payment can be in the form of a sum or sums which, for practical purposes, has been interpreted by the courts as a lump sum in one payment or in instalment payments. There is no power to secure an order made under section 23(1) (c). This distinguishes the powers granted under section 23(1) (c) from the powers granted by the earlier sub-sections. It would be quite outside the ambit of the powers granted by section 23(1) (c) to view the annual premia of the life insurance policy as instalment payments of a lump sum payment.


Carefully considering section 23(1) and the ambit of the provisions therein, I have no doubt that there is no power granted by the Act under that section to order the kind of relief which the learned judge purported to order in the form of a life insurance policy. The contention has been supported by Mr. Hill by reference to two other sections of the Act—section 5 and section 10—which, each in their own way, deal with the importance of securing financial provision for a respondent party; and the wording of those sections and the authorities to which Mr. Hill referred, but to which I do not find it necessary to refer myself, show that the Act does envisage financial steps and provisions which could secure the future of one of the parties which lie outside the ambit of...

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