P. v P. (Financial Provision: Lump Sum)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD,LORD JUSTICE ROSKILL |
| Judgment Date | 10 November 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J1110-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 November 1977 |
[1977] EWCA Civ J1110-4
Lord Justice Roskill and
Lord Justice Ormrod
In The Supreme Court of Judicature
Court of Appeal
Family Division
(On appeal from an Order of His Hon. Judge A.C. Goodall, M.C. sitting in chambers at The Castle Exeter)
MR. SWINTON THOMAS, Q.C. and MR. NELIGAN (instructed by Messrs. Dunn and Baker, Exeter) appeared on behalf of the Respondent Petitioner.
MR. ANTHONY EWBANK, Q.C., and MR. STEPHEN PARRISH (instructed by Messrs. Stephens & Scown, Exeter) appeared on behalf of the Appellant Respondent.
This is an appeal by a husband from an Order made by His Honour Judge Goodall at the Exeter County Court on the 7th October of this year. Under that Order he directed that the wife should pay the husband a lump sum of £15,000 payable in three instalments of £5,000, (a) the first £5,000 to be paid in twenty-eight days and pending payment thereof the sum of £30 per week payable weekly as periodical payments, (b) a further sum of £5,000 within three months and pending payment thereof the sum of £20 per week periodical payments and (c) the balance of £5,000 to be paid within 12 months. There was also a specific provision that the Michaelmas Term school fees were to be paid by the Petitioner to the extent of £180 out of her own resources and the balance was to be deducted from the Respondent's share of the first payment of £5,000. Then there was a nominal Order for periodical payments by the husband to the wife and similarly a nominal Order for the three children. There was an Order that the wife should pay £300 towards the husband's costs and there were other minor incidental Orders. It is from those Orders that the husband now appeals.
The history of the matter can be summarised in this way: the parties were married on the 12th December, 1964. The husband is now 44 years of age and the wife is now 34 years of age. They have three children, all boys, namely, John aged 11 years, David aged, 10 years and Mark aged 6 years. Perhaps I might say that if this case is reported it is plainly one that should be reported under initials only.
The history of the marriage is of some relevance. The husband came originally from County Durham, and he went to Australia as a young man. He qualified as a laboratory technician there, but in 1963 he came home. I think I understood Counsel to saythat he met his wife on the way 1iome from Australia. They became engaged and they married in due course. The wife herself is the daughter of a farmer in the West Country. At first she and her fiance, later her husband, lived with her father and mother on a farm in the West Country. It is said that the intention was at an early stage that her father would acquire a farm for them as soon as one became available. There is an affidavit before the Court from the wife's father in which he says that this was the original arrangement, and that he had intended, or thought of, making a wedding present to her or them - it is not made clear which of a farm if one could be found.
A farm was found quite soon and the wife's father bought it for £15,000 odd. He spent other additional money on stocking it with both live and dead stock. The wife and the husband then moved into this farm, at first as tenants or lessees, or nominal tenants or nominal lessees, of the father. It was arranged that they should pay £500 a year by way of rent, not In cash but in livestock. Whether or not they ever did this, there seems to be some little doubt. Eventually, after a short time, the father paid off the overdraft which he had raised to buy this farm and, having paid off his overdraft and presumably cleared the charge on the farm, he conveyed it to his daughter in 1971 by way of Deed of Gift. That action by him may be of some significance so far as, at any rate, his intentions were concerned. If he had intended to benefit both his son-in-law and his daughter no doubt he would have transferred the farm into Joint names. He was obviously rather careful not to do that.
It is common ground that the husband and the wife both worked very hard on this farm which was called Roach Farm. It looks as If it had been very run down at the time that it was acquired and they put enormous efforts Into It. It is commonground that the husband put in a great deal of effort in improving the farmhouse, improving the land and building up what became an obviously successful farming business. They farmed it, so far as the business was concerned, as partners, the freehold of the farm remaining in the wife at all material times.
The marriage became unhappy in circumstances which we have not gone into and which do not matter. The situation eventually became really acute. The marriage was finally dissolved on the 19th October, 1976 on a Petition by the wife on the grounds of Section 1(2)(b), but even before that there had been serious difficulties. In March of last year the wife had occasion to apply for an injunction to restrain the husband by reason of his violent behaviour and undertakings were given at that stage, not apparently very successfully because on the 20th July, 1976 the husband was ordered to leave the farm by the 1st October. That matter was appealed to this court and that Order was amended but left substantially in that form.
The husband did leave, but he did not leave, in fact, until January this year. There have been subsequent troubles recently which I do not think it is necessary to mention.
At quite an early stage the husband gave notice of his intention to apply for various forms of ancillary relief against his wife, including an application under the Married Women's Property Act, which he launched in January, 1977. Eventually all these various proceedings were consolidated. They came before His Honour Judge Goodall and resulted In the Orders which have been mentioned.
The first point to be considered is the value of the farm. It is necessary at this juncture once more to urge that in these cases Judges exercising this jurisdiction must be realistic in dealing with figures for valuations. The farm is said byvaluers to be worth, including the farmhouse, its contents and the stock, approximately £102,000. Apart from an overdraft, which has already been allowed for in that figure, there are no charges as far as we know on the farm. There is a very marked tendency in these Section 24 cases to treat valuation figures as if they were the equivalent of cash, but everybody knows in other contexts that they are not. The figure of £102,000 is purely a valuer's figure. How much it would amount to if this farm had to be sold and the business liquidated is quite another matter. It is therefore wholly unrealistic, in my judgment, to approach this case on the footing that this wife is equivalent to a person who has £100,000 invested in readily realisable securities or in cash or on deposit or whatever. A sum of £100,000 in liquid assets is one thing; £100,000 invested in a small farm in the West Country is something very different. So at the outset I cannot help thinking with respect, that Mr. Ewbank's submission on behalf of the husband in this court that the effect of the learned Judge's Order is to give the husband £15,000, which, I add, is in cash, and leave the wife with £85,000 in the form of a farm is really simplistic. The reality, of course, is quite different. No-one has any clear idea what the net value of this property is if it were sold. It is not likely to be anything near as much as £100,000.
Various other matters were involved. Partly there was the emotive factor that the wife's father had given the farm to her, and the learned Judge did make some comments about farmers' daughters which it is not necessary to repeat. For my part I think the matter can be dealt with perfectly satisfactorily by carrying out the exercise required by Section 25 systematically and realistically. If that is done, many of the emotive factors in this case disappear.
There is another point which I might mention at this stage. Mr. Ewbank referred us to a passage in Wachtel v. Wachtel which refers to family assets. The Judgment in Wachtel v. Wachtel quite rightly described that as a convenient shorthand phrase. Mr. Ewbank tells us, however, that a great deal of energy is spent in the courts dealing with these matters debating whether or not a particular item is properly regarded as a family asset. I would only like to say for once and for all that the phrase "family assets" does not occur in the statute and it has nothing to do at all with Section 25. Section 25 requires the court to have regard to the items set out in it and "family assets" is nothing to do with it. It is a convenient phrase that came into existence in the days before the courts had the wide jurisdiction provided originally by the Matrimonial Proceedings and Property Act, 1970. In my Judgment, it is not now a phrase of any particular use.
If we proceed to do the Section 25 exercise this, to my mind, is how it works out. Section 25(1)(a) of the Matrimonial Causes Act, 1973 requires us to consider 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. Dealing with that, on the wife's side we do not know, in fact, the income produced by the farm because the farm accounts were not gone into in the Court below nor here. It is reasonable to assume that the income from the farm is sufficient to keep her and the three children, and pay, at any rate, something towards their private education. With regard to her earning capacity, the wife's earning capacity is tied directly to the farm. Otherwise, as far as the evidence goes, she has none. The husband's earning capacity at the moment is nil because he, on the facts of this case,...
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