SB v PB (Financial Provision)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Date | 1995 |
| Court | Family Division |
THORPE, J
Financial provision – consent order for periodical payments – order stating payments would cease after seven years – order not containing direction under s 28(1A) of the Matrimonial Causes Act 1973 that wife not entitled to apply for an extension of the order – whether application could be made – matters to be taken into account.
The wife, now 55 years old, had left school at 15, married a successful man at 20 and had two daughters. Her first marriage failed and in 1975 she began to live with another very successful businessman who was now her second husband. They had a son in 1977 and were married in 1984. By 1986 both husband and wife were consulting solicitors for advice on separation and divorce. By the summer of 1987 the wife was suffering from depression and also drinking too much. During the negotiations the wife became very upset and on one occasion smashed up the husband's office. After further negotiations and further attempts at reconciliation, minutes of agreement were drawn up by the wife's solicitors and varied by the husband's solicitors. In particular, the wife's proposals had defined the figures for maintenance for herself for seven years on a reducing scale and the husband agreed on condition that her entitlement to maintenance would cease at the end of the period of seven years. He also reduced the amount of a proposed lump sum payment from £25,000 to £15,000 and provided that the parties pay their own costs instead of the wife receiving her costs as proposed on her behalf. The wife's solicitors seemed to concentrate on the capital payment offered and advised the wife to accept the husband's offer which they considered to be a good one. The wife accepted and her agreement was communicated to the husband's solicitors. There followed another attempt at reconciliation, which failed. In February 1988 the wife queried the amount of capital due to her and asked for a copy of the agreement which she had signed. Her solicitor sent it, merely remarking that the sum due to her came to £201,500 and asking her to contact him if she had any further problems. In March 1988 a rule 76A statement was submitted to the court with a draft consent order. The statement made no reference to the fact that the parties had cohabited for nine years before marriage (it referred merely to a three-year marriage), it did not detail the number of dependent children, and most significantly it failed to deal with s 28(1A) of the Matrimonial Causes Act 1973 whereby an applicant may be deprived of the right to apply for an extension of the duration of an order. The consent order was made on 20 May 1988 dismissing all claims to periodical payments at the end of seven years and precluding any future claims by either party against the other. It stated that the petitioner should not be entitled to make any application under s 23(1)(a) or (b) of the 1973 Act and made no reference to s 28(1A) of that Act.
In May 1992 the wife applied for variation and extension of that order.
Held – (1) The husband's financial circumstances had surged during the six years since the consent order was made. He submitted that discovery of documents were unnecessary since he would be able to meet any order that the court might make. The wife had made do by living modestly and by drawing on her remaining capital. She was now in reasonable health, she provided a home for the son of the family whose education and training were unlikely to be completed much before the year 2000. She was unlikely to find employment. A submission on the wife's behalf that the consent order should be extended during joint lives despite the agreement reached between the solicitors in correspondence leading to the original order would be rejected as the correspondence between the solicitors was quite plain. Also, the order, as agreed between solicitors, expressly provided that: "Upon 25 May 1995 the petitioner's claims for periodical payment do stand dismissed and the petitioner shall not be entitled to make any application under s 23(1)(a) of the Matrimonial Causes Act 1973." The two solicitors, the husband and the wife must all have understood that the periodical payments were to end at the expiration of seven years.
(2) A second submission on behalf of the wife was that the advice she received from her solicitor was so manifestly bad and so manifestly the principal factor contributing to the consent order that it would be manifestly unjust to the wife to hold her to the terms of the order: see Edgar v Edgar [1980] 1 WLR 1410; Camm v Camm (1983) 4 FLR 571; and Richardson v Richardson[1994] 1 FCR 826. The wife was at the material time psychologically and emotionally disturbed and required very great care and sensitivity from her advisers. Neither solicitor was a specialist in family work. The hallmark of this case was not the husband's capital but his ability to earn very large sums in comparison with the wife's minimal earning capacity. How the wife's solicitor conceived that his "very fragile client" would survive without periodical payments for life was not clear. It had been a short marriage, but the relationship had lasted 14 years before it closed, and the son of the family was still very much a dependant. It seemed that the wife's solicitor had been so apprehensive of her destructive behaviour at the time of the negotiations that he determined to get what he could and to close the deal. The inclusion or exclusion of a section 28(1A) bar was not tackled and probably not even perceived by either solicitor. The court had not heard from either solicitor in defence but it appeared likely that responsibility lay with the wife's solicitors and possibly also with the husband's solicitors. Each party had issued a protective writ against their solicitors. They might be left to bring actions for negligence but this did not appear to be the appropriate course. It was the function of the court in applications under s 31, as in applications under ss 23 to 25, to consider a number of factors even when there was a consent order and even when an application under s 31 was expressly or by implication debarred: see observations of Eveleigh, LJ in Camm v Camm (1983) 4 FLR 577 at p 588 (see below). Because of the incomplete facts put before the district judge, the important question of whether the right to apply for extension should or should not remain alive had not been expressly dealt with and needed to be dealt with now. Section 31(7) of the 1973 Act required the court to give first consideration to the welfare of any minor child of the family and in the case of a periodical payments order to consider whether in all the circumstances it was appropriate to vary the order. In the circumstances the wife was entitled to the variation and extension of the order that she sought. Regard had to be given to the principle that the purpose of the 1984 amendments to the Matrimonial Causes Act 1973 were to encourage wives in appropriate circumstances to free themselves of financial dependency but the present case was many removed from such an ideal. The existing order would be varied under s 31 of the 1973 Act by an increase in the amount of the periodical payments and would continue during the joint lives of the parties, the wife's remarriage, or further order.
Per curiam: Both parties had engaged experts in the field of employment training and vocation rehabilitation who had prepared long reports as to the wife's capacity to work. Neither expert had met the wife. General reports from such experts would be of very limited value in a case like the present.
NoteIn Camm v Camm (1983) 4 FLR 577 at p 588 Eveleigh, LJ said: "One has to ask in relation to the wife, how far did she know what she was doing, and what her choices were and in what circumstances did she make the agreement? Then one has to ask whether it is just to allow her to ignore the agreement, to go behind it, and one might say in a given case that the agreement was made in such circumstances that it should be binding unless a radical change of circumstances could be shown. On the other hand, one might in another case say that the circumstances in which the agreement was made were such that it would be wrong to hold the party (in this case the wife) to it or for it to affect the case at all. One should also consider whether the husband has altered his position for the worse on the strength of the agreement."
Statutory provisions referred to:Inheritance (Provision for Family and Dependants) Act 1975.
Matrimonial Causes Act 1973, s 23 to 25, 28(1A) and 31.
Matrimonial Causes Rules 1977, r 76A.
Cases referred to in judgment:Camm v Camm (1983) 4 FLR 577.
Edgar v Edgar [1980] 1 WLR 1410; [1980] 3 All ER 887.
Foley v Foley [1981] Fam 160; [1981] 3 WLR 284; [1981] 2 All ER 857.
Richardson v Richardson[1994] 1 FCR 53.
Richardson v Richardson (No 2)[1994] 2 FCR 826.
Thyssen-Bornemisza v Thyssen-Bornemisza [1986] Fam 1; [1985] 2 WLR 715; [1985] 1 All ER 328.
Jeremy Posnansky for the wife.
David Woodward for the husband.
MR JUSTICE THORPE.By notice of application issued on 2 April 1992, the wife seeks a variation and extension of a periodical payments order which was made for her on 20 May 1988.
This case illustrates that where the financial affairs of a family are substantial and, in some respects, complex, it is vital that the spouses receive professional services from specialist practitioners in the field. The absence of such specialist services for this husband and wife has led to disastrous consequences. In order to illustrate that conclusion it is necessary to record the story of their relationship and its breakdown in some detail.
The wife is now 55 years of age. She left school at the age of 15 in 1954 without any educational qualifications and for a period of about five years worked as a receptionist/telephonist at a local hospital. She then married a successful man and by that marriage had two daughters. In 1971 she met her...
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