Scallon v Scallon
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE PARKER |
| Judgment Date | 06 September 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0906-1 |
| Docket Number | 89/0860 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 September 1989 |
[1989] EWCA Civ J0906-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
MISS RECORDER CORKILL
Royal Courts of Justice
Lord Justice Purchas
and
Lord Justice Parker
89/0860
MR. J. POINTER (instructed by Messrs Darby & Son, Oxford) appeared on behalf of the Appellant (Plaintiff).
MR. G. AMES (instructed by Messrs Henmans, Oxford) appeared on behalf of the Respondent (Respondent).
I will invite Parker L.J. to deliver the first judgment.
The appellant, Catherine Scallon, and the respondent, William Scallon, were married in 1943. I shall refer to them as "the wife" and "the husband" respectively. There were two children of the marriage. The first, Catherine, who was born in May 1964 and is now 25, has left home and is independent. The second child of the marriage, one William, was born in March 1968 and is now 21; he has recently completed a course. Since 1976 the matrimonial home has been 46 Crotch Road, Marston, Oxford. It was bought in 1956 in joint names. Its present estimated value is £89,000 and there is an outstanding mortgage of £18,000. The probable sale expenses have been assessed and are not challenged at £2,600. The expected net realisation on sale would, therefore, be £68,400.
The parties separated in September 1986 and subsequently divorced, the decree absolute being pronounced in September 1987. The wife in her petition for divorce had applied for ancillary relief in the way of periodical payments, a lump sum and a transfer of property order. That application was heard by Mr. Registrar Donaldson on 21st October 1988. He ordered, first, the immediate transfer, subject to the mortgage, of the husband's interest in the property to the wife, and the wife to indemnify the husband against all further liability under the mortgage. Secondly, the immediate transfer of the husband's interest in the contents of the house and four insurance policies, the surrender value of which was some £4,560. Three of those policies were in the husband's name alone, and one in the joint names of the husband and wife. Thirdly, the Registrar ordered that upon such transfer all other claims for ancillary relief be dismissed, with a prohibition on any further applications or any application under the 1975 Act. This was thus a clean break order, the children of the marriage both being over 20, one having long since been independent and the other having just completed his education. The effect of the order was to transfer the entire family assets to the wife, leaving the husband stripped of any capital asset at all. At that time he had debts of some £11,000 and the wife of some £4,645. At the time of the Registrar's order the husband was not earning. Their earnings at the time of the appeals which followed upon the Registrar's order were, as to the wife £8,500 and as to the husband £12,000.
The husband appealed from the Registrar's order and the appeal was heard by Miss Recorder Corkill on 31st January 1989. She discharged the Registrar's order and ordered instead, firstly, that the house should be sold and the net proceeds be divided, 3/5ths to the wife and 2/5ths to the husband, the proceeds to be used in the purchase of other properties by each of them. Secondly, that there should be a transfer of the insurance policies and the matrimonial chattels to the wife. Thirdly, that on the distribution of the proceeds the claim for a lump sum be dismissed. Finally, that there should be a nominal order for maintenance at the rate of 5p. per annum to the wife during their joint lives or re-marriage or further order. Both parties are legally aided, and the legal aid costs up to the end of the hearing before the Recorder are estimated at £3,800. They were originally estimated at £3, 500 on each side.
The wife appeals, seeking by her notice of appeal restoration of the Registrar's order for the transfer of the entire interest in the property to her. In the skeleton argument and in argument before us Mr. Pointer has, in the alternative, suggested that there should be some adjustment of the order made by the Recorder so that the wife acquires more and the husband less of the proceeds of any sale or that the husband's interest be safeguarded in some other way, as, for instance, by a deferred charge on the property in some proportion other.
The first ground of appeal is that the learned Recorder founded her judgment on section 25 of the Matrimonial Causes Act 1973 as it existed prior to its amendment by the Matrimonial and Family Proceedings Act 1984. It is submitted that that was a fundamental error and that this court is, therefore, entitled to substitute its own discretion for that of the Recorder. The two sections are different, so far as presently material, in two respects. The original section which had set out the matters which were specially to be taken to be taken into consideration ended with these words:
"(1)…and so to exercise those powers as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other".
Those words disappeared when the amended section was enacted, and the conduct of the parties was lifted from its inclusion in the words which I have just read to sub-paragraph (g) of section 25(2), which reads:
"the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it".
The matter was drawn to the attention of the learned Recorder at the conclusion of her judgment. She then heard submissions and retired to consider the matter. When she returned, she said that, despite the fact that she had applied herself to the wrong section and having considered the right section, the judgment should stand. There is, therefore, considerable difficulty in the way of any submission that the judgment is defective because, on consideration, she came to the same conclusion. It is, however, not necessary to say more about that submission than that it cannot possibly succeed, in my judgment, in this court, for the differences are not such as to affect the matter when one reads the judgment as a whole. I propose to say no more about it than that the point appears to me to be one of no substance.
The learned Recorder proceeded on the basis that it would be just and equitable so to deal with the capital assets, if possible, as to provide that each party should be able to provide themselves with an alternative home. That approach is not challenged and, in my view, was clearly right. It is contended, however, that under the Recorder's order neither party but principally the wife would be able to purchase an alternative property, and that that is wrong in principle. I accept that if the order made was an order which would result in the wife being unable to house herself, the husband's position being of less importance in this connection since it is the wife who is appealing, it would be proper for this court to interfere. The question, therefore, which is central to this appeal is whether the order made by the Registrar did achieve the objective of enabling the wife to purchase a suitable alternative property.
The net proceeds, as I have said, were £78, 400. The distribution ordered by the Recorder results in a figure of £41,040 for the wife and £27,360 for the husband. The proceeds of the policies, as I have said, were £4,560. The debts of the wife were substantially the same, £4,645, so that the £41,000 was available to be spent upon a new property. As to the legal aid costs, it was submitted by Mr. Pointer that those costs would have to be deducted, leaving in the wife's hands available for a new property the sum not of £41,040 but, broadly speaking, £37,500. That was based upon an observation which was made in the case of Simmons v. Simmons [1983] 4 F.L.R. 803, in which this court considered, somewhat incidentally, the matter of the position of the legal aid charges. The judgment of the court in essence was given by my Lord, Purchas L.J., who in the last paragraph of his judgment at p. 813 said as follows:
"I revert to the comment made by the President [Sir John Arnold] in Jones v. The Law Society; amendments to section 9(6) of the 1974 Act and the regulations 88 and 91 to exclude the proceeds of the sale of the matrimonial home or funds allocated for the purchase of a primary home for either of the parties to the marriage or a child of the marriage to whom section 41 of the 1973 Act applies would avoid the hardship caused in this case. A person's home and the tools of his trade are already excluded from assessment under the 1974 Act. However, a mere discretion granted to the Law Society would not, in my judgment, be sufficient to permit the court to assume that the monies would not be collected, nor a charge enforced unless the position was secured by direct enactment".
Since then the Regulations have been amended and the Regulations presently in force are The Civil Legal Aid (General) Regulations 1989 which came into force on 1st April 1989. Regulation 96, to which the title is
" Postponement of enforcement of charges over money",
reads as follows:
"96(1). This regulation applies where in proceedings under—…
(b) the Matrimonial Causes Act 1973,…
there is recovered or...
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