Payne v Payne

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE WILLMER,LORD JUSTICE DANCKWERTS,LORD JUSTICE RUSSELL
Judgment Date22 January 1968
Judgment citation (vLex)[1968] EWCA Civ J0122-1
Date22 January 1968
Docket NumberNo. 2405 of 1964

[1968] EWCA Civ J0122-1

In The Supreme Court of Judicature

Court of Appeal

Civil Division

Appeal from Wrangham J. in Chambers 6th July, 1967

Revised

Before:

Lord Justice Willmer

Lord Justice Danckwerts and

Lord Justice Russell

No. 2405 of 1964
Between:
Reginald Thomas Payne
Petitioner
and
Janet Harrower Payne
Respondent

MR E.R. MOUIRON-BARRETT (instructed by Messrs Dixon, Ward & Co. Richmond, Surrey) appeared on behalf of the Appellant (Respondent)

MR JOHN C.J. TATHAM (instructed by Messrs Frederick Wills & Co.) appeared on behalf of the Respondent (Petitioner).

LORD JUSTICE WILLMER
1

This is an appeal from an order made by Mr Justice Wrangham on the 6th July 1967 varying a previous order made by Mr Registrar Townley-Millers on the 30th May 1967 with regard to the quantum of maintenance which ought to be paid by an ex-husband to his ex-wife following divorce proceedings. The sum which had been awarded by the learned registrar was £1,800 per annum less tax. That was reduced by the learned judge to the sun of £1,600 per annum less tax. On this appeal we have been invited to restore the learned registrar's figure.

2

I have found very considerable difficulty in arriving at a conclusion in this case, but I have in the end come to the conclusion that the appeal ought to be allowed and the learned registrar's figure restored. The main source of my difficulty in the case (and I will state at once at the outset of my judgment) has been the factthat the husband throughout has been anything but frank in the disclosures which he has made with regard to his available income. I will come back later to particular matters of criticalam in relation to his non-disclosure.

3

The matter started with a consent order which was made at the time of the hearing of the divorce petition on the 25th October 1965. As the result of an agreement which was reached between the parties, the husband ejected not to proceed with his petition. but allowed the wife to obtain & decree of divorce on her answer. As part of what was agreed, and, as part of the order made when the do ore enisi was pronounced. It was provided that the husband should pay to the wife as from the 25th October 1965 until further order, first, alimony pending suit, and thereafter, as from decree absolute, maintenance for herself during their Joint lives at the rate of £1,500 a year payable monthly on the basis of the petitioner's annual income being £5,000. The husband, as we now know, had been employed for a number of years by the "Sunday Mirror", but his contract of employment with thorn was determined in August 1964. He was out of employment for a matter of some six months, but in February 1965 he obtained fresh employment with "Tit-Bits". He was in that employment at the time of the decree and at the time of the consent order. Whilst with the "Sunday Mirror" he had been receiving a salary of £5,000 a year, and again during the period while he was working for "Tit-Bits" he was receiving a salary of £5,000 a year. That no doubt was the reason why the consent order was said to have been made on the basis of his income being £5,000 a year. We now know that, quite apart from the salary which he had been earning, the husband also received a very substantial sum of money as compensation for his loss of employment at the time when he left the "Sunday' Mirror" in August 1964. Even now I do not think that we know the exact size of the bonus which he then received, but it is near enough if I say that, after tax had been deducted, there remained in his hands something of the order of £11,500.

4

At the time when the consent order was made, the parties had been living separate and apart for a considerable time, and the wifehad no exact knowledge with regard to this large capital payment which the husband had received. We are told, however, that she had her suspicions. So far as I understand it, nothing was diclosed at the time when the consent order was made with regard to the amount received by way of compensation, nor as to what use the husband had made of the money so paid to him.

5

To move forward now from October 1965, the husband obtained fresh employment in February 1966 when he moved from "Tit—Bits½ to become managing editor of "The people". in that new employment he obtained a salary of £5,500 a year. The situation, therefore, did alter following the consent order at any rate to this extent, that the husband's salary increased by an amount of £500 a year.

6

In due course the wife issued a summons asking for a variation of the consent order. She was then apparently under the Impression that the husband's salary as managing editor of "The People" was a good deal more than it has in fact been found to be. She filed an affidavit in May 1966 setting out the effect of the consent order, and stating (as was the fact) that she had been granted the oustody of the younger child of the marriage, and that she also had an elder daughter making her home with her. So far as education fees are concerned, I understand that the husband is paying (and always has paid) the fees of the younger child. The elder child has left school and has been at college. The wife, however, does have the responsibility of housing these children, and I suppose looking after them and feeding them during such periods as they are at home. It should also be mentioned that, as part of the order made at the time of the divorce, the husband made over to the wife his interest in the house which had been the matrimonial home. The wife has continued to reside there, and has kept a home there for the children of the marriage. But, as she made clear in the second of her affidavits, she does that at some considerable cost to herself. For the house is subject to a mortgage of £6,300 on which the interest payments amount to £360 a year. M Grooves the mortgage is secured by a policy of insurance on the life of thehusband on which she has to pay premiums amounting to £309,8s. This is not a case, therefore, of a husband who has provided his divorced wife with a home in which she can live rent free. He had, it is true, provided a home, but it is a home which costs the wife a good deal of money to maintain.

7

The husband swore his affidavit of means in response to the wife's application on the 29th June 1960, and I think it is right to say that most of what is stated in paragraph 2 of the affidavit, in which he dealt with the capital sum received by way of compensation, has turned out to be false. He ask that when he resigned his position with the "Sunday Mirror", the sum that he received by way of compensation, after deduction of tax, amounted to £9.500. That was not true. He said that at that time he had an overdraft of £800. That was not true, as now appears from his bank acoount, which has been produced....

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