Omielan v Omielan
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE PETER GIBSON,LADY JUSTICE BUTLER-SLOSS |
| Judgment Date | 30 July 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0626-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCFMI 96/0006/F |
| Date | 30 July 1996 |
[1996] EWCA Civ J0626-6
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ALDERSHOT & FARNHAM COUNTY COURT
(HIS HONOUR JUDGE MILLIGAN)
Royal Courts of Justice
Strand
London WC2
Lord Justice Butler-Sloss
Lord Justice Peter Gibson
Lord Justice Thorpe
CCFMI 96/0006/F
MR. BRUCE BLAIR QC & MR. NICHOLAS MILLER (Instructed by Messrs Robert Clerke, Bristol, BS6 5AH) appeared on behalf of the Appellant
MR. SPON-SMITH (Instructed by Messrs Heald Nickinson, Surrey, GU15 3RB) appeared on behalf of the Respondent
The parties to this appeal married in 1977 and separated in 1988. Within those years the wife gave birth to four children who are now aged 17, 16, 13 and ten years respectively. By an order made in the year of separation care and control of all four was given to the wife. A comprehensive financial settlement was negotiated between solicitors and made the subject of a consent order by the District Judge in the Aldershot and Farnham County Court on 12th February 1990. Paragraph one of the order provided:
"[The former matrimonial home] be sold but the sale thereof be postponed until such time as one of the following events occur;
(a) the remarriage of [the wife],
(b) [the wife's] cohabitation with another man for a period of not less than six months,
(c) the death of [the wife],
(d) [the wife] ceasing to reside at the property on a full time basis."
Paragraph two contained a provision that enabled the wife in exercising her right of occupation to substitute for the former matrimonial home an alternative property. Paragraph three of the order provided as follows:
"Upon one of the events referred to in clause one hereof occurring and upon the said sale as aforesaid taking place, the net proceeds of sale shall be divided between [the wife] and the children of the family …. as to 25% to [the wife] and 75% to the said children to be held in trust for their benefit as to 40% for the said child [R] and 20% for each of the said children [A], [L] and [M]."
Paragraph four provided periodical payments to the wife, paragraph five provided periodical payments to the children, paragraph six provided liberty to apply as to implementation and paragraph seven dealt with costs.
A few weeks thereafter the decree was made absolute and on 8th June the husband and the wife executed a deed of trust by the terms of which the husband and the wife constituted themselves trustees holding the former matrimonial home upon the trusts declared in the paragraphs of the order cited above.
Prior to the order of 12th February 1990 the husband and the wife owned the beneficial interest in the former matrimonial home equally. By consenting to the order the husband divested himself of any beneficial interest, remaining only the joint holder of the legal estate and a trustee of the proceeds of sale. The wife, the other joint holder of the legal estate and trustee of the proceeds of sale, in consenting to the order reduced her beneficial interest in the proceeds of sale from 50% to 25%, that interest being vested but in reversion expectant on the occurrence of any event specified in paragraph 3 of the order. However she obtained a beneficial prior right of occupation, that interest being vested and in possession, for her life or until the happening within her lifetime of any of three events all of which were within her election. By the order the children acquired a vested 75% beneficial interest in reversion, being subject to their mother's prior beneficial right of occupation in possession.
In 1991 the wife gave birth to a fifth child by a man with whom she subsequently conceded that she had been in full time cohabitation for more than six months. On 24th November 1992 a residence order to the father was made by consent in respect of the two elder children. On 4th May 1994 the husband applied, inter alia, for the sale of the former matrimonial home pursuant to paragraph one of the order of 12th February 1990. On 20th January 1995 the wife applied under section 31 of the Matrimonial Causes Act 1973 for the variation of the order of 12th February 1990 to postpone sale until the youngest child should attain 18 years or cease full time education. The husband objected that the court had no power to entertain an application to vary a section 24 order. On 4th December 1995 His Honour Judge Milligan declared that the court had jurisdiction but granted leave to the husband to appeal that declaration. It is that appeal that this court now determines.
For the husband Mr Blair QC contends that it is necessary to look to the substance of what was ordered on 12th February 1990. Judge Milligan found that, although the order did not contain the conventional paragraphs to the effect that the provision therein was conclusive of all capital claims, none the less the parties had intended that consequence. Accordingly paragraphs one and three of the order read in conjunction clearly constituted a property adjustment order, more specifically a variation of settlement order under section 24(1)(c) and (d) of the Matrimonial Causes Act 1973. Such an order is not within the category of orders which the court has jurisdiction to vary under section 31 of the Matrimonial Causes Act 1973. Accordingly the judge was plainly wrong to have made the declaration.
Mr Spon-Smith for the wife submitted that paragraph one of the order of 12th February 1990 was clearly an order for sale under section 24A of the Act and therefore one which the court has jurisdiction to vary under section 31(2)(f).
Mr Blair's alternative submission was that if any part of the order of 12th February 1990 was made under section 24A that section is procedural and any consequent power to vary must be confined to procedural variation. Once an event had occurred terminating the vested beneficial interest in possession then a jurisdiction confined to procedural variation had likewise terminated.
Although this is a short point it is not an easy one. The statutory framework is very familiar. Section 21 of the Matrimonial Causes Act 1973 effectively defines property adjustment orders in sub-section (2) as orders for transfer of property, settlement of property or variation of settlement made under section 24. Variation of settlement orders are more specifically defined under section 24(1)(c) and (d) as:
"(c) An order varying for the benefit of the parties to the marriage and of the children of the family or either or any of them any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the parties to the marriage;
(d) an order extinguishing or reducing the interest of either of the parties to the marriage under any such settlement;"
I am in no doubt at all that the relevant paragraphs of the order of 12th February 1990 amounted to a variation of settlement order under the above sub-sections.
Section 24A was inserted by the Matrimonial Homes and Property Act 1981 with effect from 1st October 1981. I cite only the sub-sections relevant to this appeal:
"(1) Where the court makes under section …. 24 of this Act …. a property adjustment order, then, on making that order or at any time thereafter, the court may make a further order for the sale of such property as may be specified in the order, being property in which or in the proceeds of sale of which either or both of the parties to the marriage has or have a beneficial interest, either in possession or reversion.
(4) Where an order is made under sub-section (1) above, the court may direct that the order, or such provision thereof as the court may specify, shall not take effect until the occurrence of an event specified by the court or the expiration of a period so specified."
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