Priest v Priest
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CUMMING-BRUCE,LORD JUSTICE ORR |
| Judgment Date | 20 November 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J1120-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 November 1978 |
[1978] EWCA Civ J1120-3
In The Supreme Court of Judicature
Court of Appeal
(On Appeal from Portsmouth County Court)
Lord Justice Orr and
Lord Justice Cumming-Bruce
MR. K.C.CUTLER (instructed by Messrs. Blake Lapthorn Rea & Williams of Gosport, Hants.) appeared on behalf of the Appellant.
MR. G. BROWN (instructed by Messrs. Reynolds & Hetherington of Gopport, Hants.) appeared on behalf of the Respondent.
On 26th November 1964 the Appellant (whom I shall call the wife) married the Respondent (whom I shall call the husband). They had three children, a boy who is now eight and twins, a boy and a girl, who are now six. In November 1976 they parted. Legal proceedings followed. On 16th September 1977 there was a decree nisi, the decree absolute following in November 1977. The children stayed with the wife and she was living with them in a council house. The wife made application for financial provision.
On 7th March 1978 the learned Registrar made an order for periodical payments to the wife of £14 per week for herself and £7 per week for each of the three children to be paid by her ex-husband, a total of £36 per week. On 6th June 1978 the wife made an application for a lump sum and there are affidavits filed by the wife and the husband setting out the facts.
The financial situation relevant to the lump sum I summarize briefly as follows: At all material times the husband was serving in the Royal Marines; at the date of the application for a lump sum be was a sergeant therein. At the date of the application for a lump sum there was £700 sitting in an account somewhere and in respect of that the learned Registrar made an order splitting it between them, £350 to each. The wife also applied for an order to be part of her order for a lump sum giving her a share in a contingent gratuity which the husband might receive if he served the Crown in the Royal Marines for long enough to qualify. After a minimum of 22 years a serving Marine is eligible on retirement from the service (a) to a pension, (b) to a gratuity which is a lump sum. If he does not serve 22 years he is not eligible for the lump sum. We have not been taken by counsel through the documentation which I suppose is to be found relating to the gratuity, but we were given to understand that, in relation to the 22 years service, it was all or nothing, so that if a man retires after serving 20 years he is not eligible for the gratuity; on the other hand, if he served for 22 years and then decided to continue to serve in the Royal Marines, five years later he will become eligible for a biggergratuity and, as I understand the submissions for the appellant, during each of those five years he has a reasonable expectation of some annual uplift above the gratuity to which he had become eligible in 1983.
Today we were told by counsel for the husband that if he is so disposed, and provided that the Crown continues to be eager to have his services, he can continue to serve in the Royal Marines until 1993. Although we have not been given any particulars, I assume that if he does serve beyond 1988 until 1993, that the gratuity to which he will become eligible in 1993 will be significantly greater than either the 1983 or the 1988 gratuities.
So the situation is this, we have not investigated the legal background of the gratuity, but for myself I am prepared to assume that it is a payment made under the Royal Prerogative in accordance with the provisions of the Royal Warrant. In the case of this husband, he has every reason to assume that he will be eligible, if he retires from the Royal Marines in 1983 to a gratuity. If he leaves the Royal Marines before completing his 22 years of service he will not be eligible for any gratuity at all.
In 1976 the husband's expectation of a gratuity in 1983 was an expectation of the sum of £3,975. That was his expectation at the time when the husband and wife parted and was still the situation at the time of the decree nisi and the decree absolute. It was still his expectation at the date when the Registrar made the order for periodical payments, but by the date of the wife's application for a lump sum on 6th June 1978 the gratuity figure for 1983 for 22 years service had been uplifted by 31%, so that, with effect from 1st April 1978, his expectation in 1983 was for a gratuity of £5,229.
On the application of the wife to have an order for the lump sum order which she sought in respect of a share in the gratuity, if and when it was vested in her former husband, the learned Registrar took the view, as he stated in his judgment:
"The Court can not take into account of the possibility of a future gratuity. It was not a family asset when the marriage broke down. Even if it was and therefore had to be taken into account I would also have to consider all the circumstances,including the allegation by the Respondent of the Petitioner's association with another man. The Petitioner says that there is no possibility of marriage with this other man, and in fact that the relationship has ended. It would be necessary to ask if there was a relationship this would have to be pursued in depth. The details of the relationship would be of paramount importance."
He concludes:
"I suggest that the possibility of a future share in the gratuity would not be worth pursuing because of this."
The wife appealed. She submitted to the Judge that the Registrar had been wrong about the gratuity and that she ought to have a share in it when it comes along, if it ever does. The Judge was a little bit puzzled. He said that he would like the guidance of the Court of Appeal. He said:
"Of course the wife has the contingent interest in the gratuity and it does not appear right to me that this right should be wholly defeated.
The difficulty in this particular case is that a lump sum order has already been made and it is not possible to sub-divide a lump sum order, as this would be contrary to the whole point of a lump sum order. The object of a Imp sum order is to deal with property vested in possession or in expectation. On this basis I would include a gratuity in a lump sum if the husband was in the last year or eighteen months of his service when anyone but a fool would continue his service to obtain his gratuity. I do not think that a lump...
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...is concerned, of good things to come. I have come to the conclusion that the right approach is that taken by this court in the case of Priest v. Priest. That case is clear authority for the arrangements and order which I would suggest. It is reported in Volume 9 of the Family Law Journal (1......
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