Ranson v Ranson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,MR. JUSTICE WATERHOUSE |
| Judgment Date | 24 July 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0724-1 |
| Date | 24 July 1987 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/0782 |
[1987] EWCA Civ J0724-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORWICH COUNTY COURT
(His Honour Judge Moylan)
Royal Courts of Justice
Lord Justice May
and
Mr. Justice Waterhouse
87/0782
MR. S.N. SPENCE (instructed by Messrs Iliffes, London Agents for Messrs Greenland Houchen & Co., Norwich) appeared on behalf of the Appellant/Petitioner.
MR. T. TOWNSHEND (instructed by Messrs Belmores, Norwich) appeared on behalf of the Respondent/Respondent.
This case raises a short point, but one that is both interesting and difficult and I am grateful for the assistance that the court has received from the submissions of counsel on both sides.
We have before us an appeal, with leave of the learned judge, from an order made by His Honour Judge Moylan in the Norwich County Court on 30th March 1987. The circumstances can be briefly outlined.
In matrimonial proceedings the wife petitioner made an application for ancillary relief. The husband respondent is a serving member of the Royal Air Force. On 31st May 1985 Mr. Registrar Nash-Williams made a number of orders on the wife's application for ancillary relief, amongst them one in these terms:
"AND IT IS FURTHER ORDERED that the Respondent do pay the petitioner a lump sum equal to 20% of the terminal gratuity received by him on his discharge from the RAF but not to include any gratuity which is paid because he commutes part of his pension."
Although the learned Registrar has not endorsed the notes of his judgment in 1985 because of the passage of time and his failure of recollection since then, the unapproved note that has been put before us is that in dealing with this aspect of the matter the learned Registrar added:
"As regards Mr. Ranson's R.A.F. gratuity, there is some prospect of a downward variation of maintenance and he may remarry. There are many imponderables. We are looking at 7 and perhaps 13 years ahead. I think 20% of his terminal gratuity should be paid to Mrs. Ranson. This will give her about £2,600 on today's figures."
On 26th November 1986 His Honour Judge Binns gave leave to appeal out of time against this particular order of the learned Registrar of 31st May 1985. The appeal was heard by Judge Moylan in Norwich on 30th March this year. There was but one contention put before the court on that appeal, as indeed has been put before us, namely that the order made by the registrar was void in that it contravened the provisions of section 203 of the Air Force Act 1985. The learned judge accepted that submission, allowed the appeal against the registrar's order and set it aside. The wife now appeals to this court, contending that the order made by the registrar, for reasons to which I shall briefly refer in a moment, was not caught by the statutory provision and should be allowed to stand.
The relevant statutory provisions are contained in section 203 (1) and (2) of the Air Force Act 1955 in these terms:
"(1) Every assignment of or charge on, and every agreement to assign or charge, any pay, air-force award, grant, pension or allowance payable to any person in respect of his or any other person's service in her Majesty's air forces shall be void.
(2) Save as expressly provided by this Act, no order shall be made by any court the effect of which would be to restrain any person from receiving anything which by virtue of this section he is precluded from assigning and to direct payment thereof to another person."
Counsel has submitted on behalf of the appellant that we must construe the statutory provisions strictly; and that if we do so, the order made by the registrar was not within the scope of either of the two subsections and accordingly should not be struck out. On behalf of the respondent it is said that, although on a strict reading of the subsections that may be so, nevertheless the order was clearly contrary to the spirit of the statutory restrictions, the subsections should be purposively construed to give effect to that spirit, and when one does so, the order is clearly contrary to the intention of Parliament.
Our attention has been drawn to three authorities, the first being Walker v. Walker [1983] Fam. Div. 68. That was a case in which a wife/petitioner sought dissolution of the marriage whilst her husband was still a serving soldier. Before the decree was made absolute the husband was discharged from the Army with an entitlement to a resettlement grant of over £2,400. The wife applied pursuant to section 37 of the Matrimonial Causes Act 1973 for the preservation of that grant. The registrar made an order, amongst other things, that the paymaster General should pay into court the moneys due to the husband and that the money should remain there until the trial of the issues relating to ancillary relief or until further order. But the Ministry of Defence applied to the court and the learned judge set aside the order as being an indirect method of ordering a soldier's pay to be paid to another person contrary to section 203 of the Army Act 1955, which is in precisely the same terms as the Air Force Act of the same year.
The wife then appealed and the appeal was dismissed. It was pointed out to us, as is clearly the case, that although the registrar in that case made two orders, it was only the first that was the subject-matter of the appeal. That order is set out in detail at the top of page 72 of the report and need not be quoted in full in this judgment. It is quite clear from the judgment of Cumming-Bruce L.J. that his judgment dealt only with that first order of the registrar. For my part I quote the last paragraph of his judgment at page 76D:
"This leads me to my conclusion, and I prefer to put my reasoning on two grounds. Either a cheque payable by the Ministry of Defence to the Accountant General by way of payment into court of the sum representing the entitlement of the former soldier to his resettlement grant was payable to another person pursuant to the order of the court that the money be paid into court, in which case such order for payment into court would be contrary to the express terms of section 203(2), or alternatively, if that is wrong, the order for payment into court is itself bad, because the only explanation or reason for such an order would be to circumvent the prohibition in section 203(1) which prohibits any charge on the grant in question. I am content to hold that the order for payment into court made by the county court, making the order against the Paymaster General, was bad, either because the Paymaster General, on paying this cheque to the Accountant General, was paying to another person, which is prohibited, or if he was not, then what he was ordered to do was to take the step which, to have any valid or useful effect for the benefit of the wife, must' involve at some stage a rstraint or charge on the grant, which itself is prohibited by section 203(1) and (2)."
Griffiths L.J. in the same case, at the start of his judgment said this:
"The object of section 203(1) of the Army Act 1955 is to ensure that a soldier will receive in his hands his pay or the other analogous sums payable by the Crown such as pensions, grants, and so forth, so that he can then dispose of them...
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