Shaw v Shaw

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Thorpe,Lord Justice Kay,Mr Justice Ferris
Judgment Date31 July 2002
Neutral Citation[2002] EWCA Civ 1298
Docket NumberB1/2001/2208 CCFMI
Date31 July 2002

[2002] EWCA Civ 1298

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM LEICESTER COUNTY COURT

(HIS HONOUR JUDGE HALL)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before

Lord Justice Thorpe

Lord Justice Kay and

Mr Justice Ferris

B1/2001/2208 CCFMI

Between
Jayne Shaw
Appellant
and
Philip James Robert Shaw
Respondent

ANDREW MOYLAN QC (instructed by Messrs Anthony Clark & Co of Lincoln LN1 1TT) appeared for the appellant.

PETER DUCKWORTH (instructed by Messrs Ringrose Law Group of Boston, Lincs PE21 6NE) appeared for the respondent.

Lord Justice Thorpe
1

This appeal well illustrates the extent to which family finances can be unravelled by the unwise and unreasonable conduct of ancillary relief proceedings. The parties to the appeal are in their middle 40s. They commenced cohabitation just before Christmas 1981 when they were in their mid 20s. They married in March 1985 when the wife was already expecting her firstborn daughter. The second was born in 1988 and the third in 1990. The matrimonial home was a property named Scandova built by the husband before the marriage. When the parties separated at the end of 1995 the husband moved in with his parents. This is a farming family and the husband both farmed in partnership with his father and did contract work on his own account.

2

The wife petitioned for divorce, a decree nisi being pronounced in May 1996. Her application for ancillary relief was issued in the Lincoln County Court in the following month. In the course of the ensuing proceedings a residence order for the three girls was made to the husband. Shortly thereafter his father died and he inherited the family farm. This was the core of the operation, although during the years preceding and following the marriage the husband had acquired substantial additional acres funded either by sales of alternative parcels or by substantial bank borrowing.

3

The preparation of the ancillary relief proceedings did not proceed smoothly, the wife's questionnaire being ultimately enforced by a committal application. Thus the proceedings extended for nearly eighteen months before they became ready for trial at the end of October 1997. During this period the wife met an affluent businessman, John Martin-Hoyes. He had been previously married and divorced on more than one occasion and was unattached at their meeting in February 1997. An intimate relationship developed almost at once and by April 1997 the wife was spending the majority of each week with him at his home, some 40 miles from the family farm. We have not seen the affidavits filed by the parties in the ancillary relief proceedings but it is reasonable to assume that the husband made much of this development in preparing for trial. He endeavoured to subpoena Mr Martin-Hoyes to attend the final hearing but the subpoena was not served in sufficient time to prove effective and Mr Martin-Hoyes, perhaps understandably, chose to stay away. We do not have any record of the oral evidence at the trial, which lasted two or three days. We do not have a transcript of the judgment of District Judge Robinson delivered on 31 October 1997. All we have is an agreed note. It is plain that the husband placed heavy reliance on the wife's relationship with Mr Martin-Hoyes. After recording the history the district judge addressed 'three main factual issues relating to the wife'. The first of these was headed 'The Wife and Cohabitation'. I cite his findings in full:

"The wife admits that she met Mr Martin-Hoyes in about February 1997. She says that they started a relationship virtually straight away. Since April 1997 she has spent the majority of time at his house apart from nights at a friend's house and contact with the children twice per week and at the weekends which have been spent at Scandova or at friends.

Scandova is very close to Grange Farmhouse. The wife says that she felt as though she was living in a goldfish bowl. The husband goes past several times per day. Her health is not good, she is on anti-depressants. Dr …. better for her if out of that environment. I can understand and accept that.

The relationship might continue. Mr Martin-Hoyes does not like her children. Taken her on holiday. He has paid for clothes, weekends and outings and she has had the use of at least 1, 2, or 3 of his vehicles, a BMW and a Mercedes.

Her evidence, her main concern to have a house for herself in this area. Accepts a relationship and may well continue. Her wish and intention to set up home for herself. No intention of remarriage.

Concerned that Mr Martin-Hoyes did not attend. But despite his absence and while she has an ongoing relationship, I do consider that the wife has a fixed intention to buy a house in this area. There have been problems with Mr Martin-Hoyes because of the children and because of work aspirations more convenient for her to live in this area, where she has most of her friends.

Whilst a relationship and cohabited for the last six months, I find that she will be purchasing and setting up home on her own in this area."

4

The district judge then turned to deal with factual issues relating to the husband. He found his net worth to be just over £3M. He accepted the evidence of the wife's expert to the effect that 'he could sell a reasonable acreage to raise a lump sum'. Of the husband's evidence he said:

"I have some doubt as to the veracity of the husband's evidence. He has no interest in the sale of property. It is interesting to note that whilst there have been many demands on the respondent for disclosure of documents with which he has reluctantly complied, there is a lack of documentary evidence in support. I do bear that in mind."

5

The district judge then considered the criteria within section 25(2) of the Matrimonial Causes Act 1973 in relation to the facts as he had found them. Under the head of contributions he recorded:

"At the time of the marriage the husband had been a farmer for many years. All the land was acquired during the marriage except for Scandova. The wife's contribution in looking after the home and the children. The husband will look after them in the future. Inheritance has arrived after the breakdown of the marriage and from the husband's father."

6

Of course in relation to land acquisition Mr Duckworth, who appears for the husband, makes the valid point that a number of the acquisitions during the marriage were in reality financed by sales of land acquired pre-marriage.

7

In turning to conclusions the district judge recorded the submission of the husband's counsel to the effect that the wife's claims should be met by a lump sum of £120,000 for a home together with periodical payments either for a limited period or for a nominal sum. Such a submission was obviously quite unrealistic and was robustly rejected. The district judge awarded her £125,000 to re-house supplemented by a figure of £275,000. In arriving at this figure the district judge first considered a Duxbury capitalisation of the wife's income needs at £15,000 per annum to supplement an earning capacity of £5,000 per annum. He then cross-checked the figure of £400,000 to 'see whether it meets the justice of the case having regard to all the circumstances including contributions and the children'.

8

By this well crafted route the district judge arrived at his order. On the wife's undertaking to vacate Scandova on or before 10 January 1998, paragraph 1 provided for payment of the first instalment of the lump sum in the sum of £125,000 on or before 10 January 1998 with the balance of £275,000 by 1 July 1998. Paragraph 2 provided for interest in default at the rate of 8%. Paragraph 4 provided periodical payments at the rate of £15,000 per annum from 1 November 1997 until 30 June 1998 with no application thereafter for extension. This was a clean break order on payment of the lump sum. The husband was ordered to pay the costs since he had 'not made any offer worthy of consideration'.

9

On 10 November the husband issued a bare notice of appeal and application for stay. It seems that the judge in the Lincoln County Court knew one of the parties and the application was accordingly transferred to His Honour Judge Hall in the Leicester County Court. On 7 January 1998 he dismissed the application for a stay of the first instalment of the lump sum and directed detailed grounds of appeal, which were furnished on 21 January and settled by Mr Duckworth. There are eighteen grounds of which I need note only the following:

"1. Took no account of the wife's established relationship with Martin-Hoyes, a man of means.

4. Failed to have regard to the age of the wife, the length of the marriage and the reasonable prospect that the wife will remarry and/or continue her relationship with Mr Hoyes."

10

Given the agreed note of the district judge's judgment those grounds were in themselves plainly unsustainable but they indicate the husband's continuing preoccupation.

11

Since the husband had not only failed to pay the first instalment but was also in gross default of his obligation to pay periodical payments it is hardly surprising that the wife issued enforcement proceedings on 23 January. Accordingly in March, April and May the sheriff recovered and paid to the wife sums totalling £130,750. That enabled the wife to purchase a property in Waltham, some six miles from the former matrimonial home, possession being taken on 26 June.

12

The husband's appeal was fixed for hearing before Judge Hall on 10 July. Given the clear and methodical manner in which the district judge had discharged his statutory function, I find it hard to see how the appeal had any realistic prospect of success....

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