Smith v Smith (Smith and Others intervening)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE STOCKER,THE MASTER OF THE ROLLS |
| Judgment Date | 20 February 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0220-12 |
| Docket Number | 90/1197 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 February 1991 |
[1991] EWCA Civ J0220-12
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRISTOL COUNTY COURT
(HIS HONOUR JUDGE McCARRAHER)
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Stocker
Lord Justice Butler-Sloss
90/1197
and
and
MR. PETER BARRIE (instructed by Messrs. J. W. Ward & Son, Bristol) appeared for the Appellant (Second Intervenor).
MR. CHRISTOPHER SHARPE (instructed by Messrs. Alsters & Co., Bristol) appeared for the Respondent (Respondent).
This is an appeal from the order of His Honour Judge McCarraher on 2nd October 1989 allowing an appeal from a registrar's order on ancillary relief as a consequence of the unexpected death of the wife. The short facts upon which the judge came to that decision are as follows.
Mr. Smith (whom I shall call "the husband") and Mrs. Smith (whom I shall call "the wife") were married on 24th December 1955. They had two children and lived in Bristol in a house bought by and in the sole name of the husband. The marriage broke down and there were divorce proceedings in 1988 with a decree absolute on 6th October 1988. The wife applied for financial relief and her application was heard by the registrar on 7th December 1988. At that time the husband was 62 and the wife 52. The registrar found that the total assets of the family were approximately £107,000, comprising the equity in the house in which both were still living of £63,000, the balance from an invested sum of £46,000. This sum was made up partly from savings and partly from a pension lump sum paid to the husband by his employers, British Telecom, who thereafter re-employed him at £12,400 a year. He would receive a further pension of £5,300 on his eventual retirement. The husband was not in good health. The wife was treated as having a notional income of £5,000 a year. She was at the time of the hearing receiving interim periodical payments of £200 a month. She had no capital of her own other than a small sum from the surrender of a life insurance policy. The wife was anxious for a clean break order and wished to retain the former matrimonial home, which would have given her about 57 per cent of the joint assets. The husband offered the sum of £54,000 which he was able to raise from existing assets, together with the capacity to borrow an additional sum.
The registrar accepted the husband's argument and made an order for a lump sum of £54,000 to be paid to the wife by the husband in full and final settlement of the claims for ancillary relief. He said:
"The husband's is the only proposal which is just and equitable. An equal division is the only just conclusion."
On 17th May 1989 the wife committed suicide. She left her estate to her daughter. The estate included the lump sum. Her premature death called into question the basis of the registrar's order and the husband applied on 8th June 1989 for leave to appeal out of time against the order. The two executrices of the wife's will were added as the first interveners and the daughter, the sole residuary beneficiary, as the second intervenor.
The judge gave leave to appeal out of time and allowed the appeal. He rightly concluded that the main issue before the registrar was where and how to house the wife. This was, as it always is where resources are modest, the crucial question and it would have been unthinkable to turn this wife out of her home after many years without making adequate alternative arrangements. The needs of the parties and especially the housing needs of the wife were clearly the predominant considerations before the registrar. The judge said:
"…basically I am looking at financial relief and therefore the financial need is one of the most important factors. I have to look at the situation as it now is. I am left with the contributions made by the wife, the disability of the husband, and the financial obligations and responsibilities of each as the major themes."
He went on to assess the wife's needs as those of the estate, that is to say her debts, and held that otherwise they were non-existent. He varied the order of the registrar to require the estate to repay to the husband the lump sum save for a sum necessary to discharge her debts and the costs of the estate. The second intervenor, the daughter, appeals to this court from that order.
Since Barder v. Barder [1988] A.C. 20 it is clear that a court may exercise its discretion to grant leave to appeal out of time from an order for financial provision or property transfer made after divorce where new events had occurred that invalidated the basis on which the order had been made so that an appeal would be certain, or very likely to succeed. The new events should have occurred within a relatively short time after the making of the order and the application for leave to appeal out of time should have been made reasonably promptly in the circumstances. Finally, the grant of leave should not prejudice third parties who had acquired in good faith and for valuable consideration interests in the property the subject of the order. In this appeal no point is taken on the granting of leave, but the appeal is against the order actually made by the judge.
There is little guidance in reported cases as to the way in which to approach a reconsideration of an order for ancillary relief based upon the death of one of the spouses. This appears to be the first case which has come to this court in which the order made by the registrar for the benefit of a wife did not include any ascertained legal or equitable interest of the wife outside that provided by the provisions of the Matrimonial Causes Act 1973 as amended. Both in Barder and in...
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