Ratcliffe v Ratcliffe
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE DAVIES |
| Judgment Date | 01 November 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J1101-1 |
| Date | 01 November 1962 |
[1962] EWCA Civ J1101-1
In The Supreme Court of Judicature
Court of Appeal
From Scarman J. Middlesex
Lord Justice Wilimer
Lord Justice Harman and
Lord Justice Davies
Mr. John Latey. Q. C., and Mr. F. J. Cridlan (instructed by Messrs. Cripps Harries Willis & Willis) appeared on behalf of the Appellant.
Mr. John Newey (instructed by Messrs. Sprinz & Sons) appeared on behalf of the Respondent.
MR JUSTICE WILLMER: This is an appeal from an Order made in Chambers by Mr. Justice Scarman on the 1st June, 1962, affirming a decision of Mr. Registrar Townley Millers, whereby he dismissed a husband's application to vary a maintenance agreement between husband and wife under the Maintenance Agreements Act, 1957. The agreement in question was made between the parties on the 9th May, 1960, and I will refer in a moment to the circumstances in which it came to be made. For the moment, it is sufficient for my purpose to refer to the fact that it provided for the husband, in the events which happened, making payments to the wife at the rate of £450 a year less tax.
The history of the matter insofar as it is relevant is as follows. This husband and wife were married In May, 1942. There are two children of the marriage, but they are both now grown up, and either self-supporting or already provided for. They do not, therefore, enter into the question which has to be decided. The parties became estranged, and by January, 1960, they were living separate and apart. The wife was living In what had been the matrimonial home, which was a house belonging to the husband. In those circumstances the husband instituted proceedings under Section 17 of the Married Women's Property Act, 1882, in order to obtain possession of the house. Those proceedings were in due course compromised on the terms incorporated in the maintenance agreement to which I have already referred.
It should, I think, be stated that at the time of entering into that agreement both parties had the advantage of legal advice. The agreement provided for a number of things, the important matters being as follows. First, the wife was to vacate the house. In return for that she was to obtain payments of maintenance from the husband. A rate was provided for the payments until such time as she vacated the house, andthe rate was to become £450 a year after she had vacated the house. She also obtained payment of her costs of the suit, as well as the costs of the agreement itself. Further, she obtained a promise from the hus band to permit her to have reasonable access to the children.
On the other side, the husband obtained possession of the house, which he was then in a position to sell. He also obtained covenants from the wife, first, to maintain herself out of the payments he was to make and, secondly, to indemnify him against debts and liabilities incurred by her. He also obtained certain specified articles of furniture which had been in the matrimonial home, and which it was agreed should be handed over to him. It was therefore clearly an agreement as a result of which both sides derived certain advantages.
At the time when the agreement was entered into the husband was working in an insurance office, and was earning an income of approximately £1,400 per annum. The wife, on the other hand, was not at that time working, but shortly afterwards she did take employment and earned a modest wage. That fact, when it came to the notice of the husband, led him to apply to vary the agreement, on the basis that there had been a change in the circumstances within the meaning of the Act of 1957. That application was heard by Mr. Registrar Townley Millers in March, 1961, when the learned Registrar dismissed it. His decision was subsequently affirmed by Mr. Justice Karmlnski on the 17th May, 1961. Thereupon, the husbandi gave notice of appeal. Two months later, in July, 1961, he voluntarily gave up his work in the insurance business, and instead arranged to take a two years course to qualify himself as a teacher. The course was to begin in September, 1961, and would not finish until September, 1963. When he took that decision his solicitors wrote to the wife's solicitors a letter of the 17th July, 1961, in which they informed the wife'ssolicitors of the fact that the husband had terminated his employment. They went on to cay: "Our client informs us that he has paid all payments under the Deed up to and including the 1st inst., hut that he will not be in a position to make any further payments as from the 1st prox."
No payments have in fact been made under the agreement since that payment of the 1st July, 1961. Whilst the husband is undergoing his training he receives a small personal allowance, and he has the advantage, as I understand it, of free board and lodging. Subject to that he has no Income at all, I chink it is true to say that he has no resources out of which, so long ae he is undergoing that training, he can pay the instalments due to the wife under the maintenance agreement. Assuming that he qualified at the end of the course in September, 1963, he will then, presumably, be able to earn as a teacher. We are informed that the minimum remuneration for one in his position would be £550 a year. That means, I suppose, that he may earn that or something in excess of that. But it remains the fact that for another ten months from now - that is to say, until September of next year - he will not be earning anything at all. I exclude for this purpose the suggestion that he may earn a modest sum by singing from time to time. Even assuming that he is able to do that whilst taking the oourse, the amount which he would be able to earn would be so small as to be substantially irrelevant for the purpose of the present application.
It was in those circumstances that the present summons was issued, in which the husband, for the second time, is trying to obtain an order for variation of the agreement, having regard to the change in the circumstances which he alleges. It is, I think, not without significance, that at the time when he issued thle summons he was already in default for two months in respect of payments under the agreement. I should add that at the same time as he launched the presentproceedings, he withdrew his notice of appeal in respect of the previous summons.
In the present proceedings both the learned Registrar and Mr. Justice Scarman have held that there was a change in but the circumstances; but both of them declined to hold that that change was such that the agreement should be altered. The reason for their conclusion was that the change was brought about solely by the husband's voluntary and unilateral act, when he knew and realised what his obligations were under the agreement.
The husband now appeals to this court, and we are invited to take a different view from that taken by the learned Judge below. Mr. Latey, who has argued the case for the husband, has invited us to say that this is a case in which the financial arrangements in the agreement ought to be revoked altogether or, at any rate, reduced to a nominal amount of Is. per annum. It has been submitted to us that it is not just to perpetuate an obligation on the husband which, in his present circumstances, he is quite unable to discharge. Mr. Latey has conceded that the fact of the change having been brought about by the voluntary and unilatertal act of the husband may be relevant in considering the degree of alteration which ought to be made, and the quantum of the payments which ought to be provided for. But he has argued that it does not prevent the change in the circumstances from being one in which it is just that some alteration should be made.
At this stage I think I should perhaps read the relevant subsection of the Act of 1957. It is Section 1(3). It is a lengthy and a rather verbose subsection, and I will try to read only that part of it which is relevant to the present application. Missing out the irrelevant words, it reads: "Where an agreement to which this section applies is for the time being subsisting… and on application by either partythe High Court… is satisfied… that by reason of a change in the circumstances in the light of which any financial arrangements contained in the agreement were made… the agreement should be altered so as to make different… financial arrangements… the Court may by order make such alterations in the agreement by varying or revoking any financial arrangements contained therein… as may appear to the court to be Just having regard to all the circumstances…"
I would say at once that the language of the subsection is far from happily chosen, and for myself I have not found it at all easy to construe.
We have been referred to only one decision under the section, and that is the decision of this Court in K. v. K., (1961) 1 Weekly Law Reports, 802. That was a case where the facts were quite different. It was a case of a husband who was a businessman with a fluctuating income, but with reasonable expectations at the time of the maintenance agreement that his income would tend to...
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