Re G (Financial Provision: Liberty to Restore Application for Lump Sum); K v G
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singer |
| Judgment Date | 28 January 2004 |
| Neutral Citation | [2004] EWHC 88 (Fam) |
| Docket Number | Case No: FD94D06594 |
| Court | Family Division |
| Date | 28 January 2004 |
[2004] EWHC 88 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Honourable Mr Justice Singer
Case No: FD94D06594
Philip Cayford QC and Stuart Nichols (instructed by Messrs. Jeffrey Green Russell) for the Applicant
Valentine Le Grice QC (instructed by Messrs. Alexiou Fisher Philipps) for the Respondent
Hearing dates : 8–10 October 2003
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Hon. Mr. Justice Singer
This judgment is being handed down in private on 28 January 2004 It consists of 59 paragraphs and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
For three days between 8th and 10th October 2003 I heard evidence in relation to this claim for a lump sum by a former wife (W), followed by submissions from Mr Cayford QC (appearing with Mr Stuart Nichols) on her behalf and from Mr Le Grice QC on behalf of her former husband (H). I have taken time to consider my decision, to which this judgment now relates. The circumstances of the claim are unusual.
W was 50 in November 2003, and H is just 45. They married when she was 35 and he was 30 in October 1988. The first of their two daughters was born in March 1989, so that she is now 14. In 1990 W was diagnosed as suffering from multiple sclerosis, a condition which has progressively affected her since then and which is likely always to do so. Her vision is severely affected. She will be increasingly handicapped and in need of care and support. The parties' younger daughter was born in March 1992 and is 11.
When the parties finally separated is unclear, but it seems likely that it was in the autumn of 1992, shortly after the flat they had occupied during the marriage was sold, and at a time when the younger child was about six months old. W commenced divorce proceedings in September 1994 and decree absolute terminated the marriage in February 1995.
H married his present wife (W2) the following month and the first of their two sons (who are now aged eight and four) was born. It is sadly the case that the younger child is afflicted by autism.
On 21st November 1995 an order was made by a district judge in the Principal Registry in relation to W's ancillary relief claims for herself and the girls. It resulted from discussions between counsel then instructed, on the day, and was an order made by consent. It made maintenance provision for W and the children and dismissed her claim for property adjustment. Both parties were legally-aided, and H agreed to pay W's costs as to one half (subsequently quantified at just short of £6,800).
But, most significantly, the order reflected the agreement reached between the parties that W's claims for lump sum and secured provision should be adjourned generally, with liberty to restore.
W in the course of the current round of litigation has asserted that the reason for this was that although the only capital asset was the house then owned and occupied by W and the children (and indeed by her mother who had contributed all her capital to the acquisition of a series of properties held with W from about 1978 onwards), H stood to inherit significantly on the death of his uncle (to whom I shall refer as HU) and/or of his father. According to W, it was in essence recognised at the time that a clean break could not fairly be achieved, but rather that when and if H inherited W should be entitled to restore her claim for the court to consider upon its merits in the light of the new circumstances. H until the eve of the hearing before me required W to establish this assertion, but curiously put forward no contrary case. It proved impossible for him to produce any contemporary document that might shed light on the rationale for the adjournment. W however disclosed an explanatory letter written to her by her solicitors within a week of the hearing. They wrote to her that the adjournment of the lump sum 'was agreed in order to enable you to make a claim for a lump sum if and when [H] has any capital, which is most likely to be inherited. If you remarry will not stop you from making that claim, but the merits of your claim will depend on your financial circumstances at the time the claim is made.' I have no doubt whatsoever that that letter records W's advisers' thinking and what she was told at the time when she gave her consent. It is unnecessary now to speculate what H may have been told but claims no longer to remember.
Although it is uncommon to leave a lump sum claim open, there are instances in the reports of analogous situations: MT v MT (Financial Provision: Lump Sum) [1992] 1 FLR 362, for example, and the earlier case of Davies v Davies [1986] 1 FLR 497. The obligation imposed by section 25A(1) of the Matrimonial Causes Act 1973 'to consider whether it would be appropriate so to exercise [the powers to order ancillary relief] that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable' does not preclude the adjournment of claims as a proper outcome. Connell J in D v D (Lump Sum: Adjournment of Application) [2001] 1 FLR 633 (at 636A) observed that this step 'should only be taken in rare cases where … there are circumstances in which justice to both parties can only be done if there is an adjournment'. On the face of it, and in the circumstances I shall describe, dismissal of this W's lump sum claim as empty in 1995 would indeed have been unjust.
To justify that proposition one needs to know where the November 1995 order left W and the children (to whose welfare while minor the court, then as now, must give first consideration).
At the time of the marriage W and her mother had recently purchased the flat which was the first matrimonial home. H made a contribution towards some improvements (in the 1995 proceedings it was agreed this had cost him some £12,000), and in addition may have paid service charges at some point, but otherwise had not needed to provide a home during the marriage. That flat was sold in 1992, whereupon the parties together with the children and their maternal grandmother moved to rented accommodation in Battersea. It was while they lived there that the parties separated and H moved out. W continued paying the rent, and other liabilities including outstanding private nursery and school fees, with modest financial support from H. In the spring of 1994 she purchased a property in South London with the assistance of a mortgage, but subject to an obligation to carry out certain works of improvement of which the cost increased the mortgage. From February 1995 until November 1995 H's contribution to her outgoings was increased as a result of court order to £1,620 per month.
H's predominant occupation during the marriage and since has been as a document translator, from French to English, and at this time he operated an agency and was thus not dependent for his income on his own translation alone. But by the time of the November 1995 hearing his evidence was of falling profitability. In place of £1,620 monthly W agreed to accept a reduction to £250 for herself and £325 for each child, that is to £900 per month in all. Meanwhile her mortgage repayment was due to increase to £600 per month. Her only other source of income was child benefits. Her position in that house was unsustainable.
So in July 1996 the South London property was sold. By then she had various liabilities, and in the event was obliged also to reimburse the legal aid fund for the entirety of the costs expended on her behalf in the ancillary relief proceedings (as H had not by then, and still by the conclusion of the hearing before me still had not, paid the half he had agreed to pay). W and her mother were left with about £100,000. Her mother found a modest rented flat in London where she has since lived, although she is a frequent and supportive visitor to the rented home which W found for herself and the children in the north of England. W's evidence was that she barely had sufficient to purchase a suitable home even in that area where house prices were and remain comparatively low, let alone to maintain the children in private sector education.
By now the girls were seven and five. M had kept them in private day schools in London and did the same in their new location after the move. She bore the fees. The elder child is dyslexic, and W described the frustration, anguish and anger which this affliction caused her daughter. W spent more of her by now rapidly-sinking fund on special tuition. In all she calculates that she has spent over £50,000 on the girls' education and associated expenses, and in the process she went heavily into debt. At one stage the financial pressures became well-nigh overwhelming and she had to seek advice to enable her to reschedule her obligations. The current position is that she owes about £50,000 dating back over the period since her move to the north. Her difficulties were compounded by the fact that H was chronically late and irregular in meeting maintenance payments, often allowing substantial arrears to mount up (on one occasion reaching £2,700), and leaving it to W to find out...
To continue reading
Request your trial
-
Kews v Nchc
...497; MT v MT (Financial Provision: Lump Sum) [1992] 1 FLR 362; Re G (Financial Provision: Liberty to Restore Application for Lump Sum) [2004] 1 FLR 997. 24. As the Court of Appeal held in Davies, although lump sum applications should generally be disposed of once and for all, nevertheless, ......
-
G v G; Green v Green
...at £670,000. The lump sum should be adjourned, see Re: G (Financial Provision: Liberty to Restore Application for Lump Sum) (2004) EWHC 88 (Fam). 123 There is no scope for conduct to be taken into account. It cannot be said that it was so inequitable that it cannot be ignored. There is much......