Suter v Suter and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,SIR ROUALEYN CUMMING-BRUCE |
| Judgment Date | 19 December 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J1219-15 |
| Docket Number | 86/1170 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 1986 |
[1986] EWCA Civ J1219-15
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WEYMOUTH COUNTY COURT
(His Honour Judge Pennant, sitting as a
deputy Circuit Judge)
Royal Courts of Justice
Lord Justice May
and
Sir Roualeyn Cumming-Bruce
86/1170
and
MR. ALAN WARD, Q.C. and MR. TIMOTHY COOMBES (instructed by Messrs Wickham and LLoyd Edwards, Dorset) appeared on behalf of the Appellant/Petitioner.
MR. GEORGE BROWN (instructed by Messrs Curtis, Cornwall) appeared on behalf of the Respondent/Respondent
The Co-Respondent did not appear and was not represented.
Sir Roualeyn Cumming-Bruce will give the judgment.
This appeal raises questions about the meaning and application of section 25(1) of the Matrimonial Causes Act 1973 as amended by the Matrimonial and Family Proceedings Act 1984, and the correct exercise of the powers and duties conferred on the court by section 25A.
The appeal to this court is against the order made by His Honour Judge Pennant sitting as a deputy Circuit Judge on 20th February 1986, when he dismissed the former husband's appeal (herein called "the husband") against the order made by the learned Registrar on 22nd January 1986 ordering the husband to pay to his former wife (herein called "the wife") periodical payments for her maintenance at the rate of £100 per month.
The facts are fully set out in the judgment of the Registrar. In bare summary the parties married in 1971. Decree nisi upon the husband's petition alleging adultery with co-respondent Jones was made on 20th June 1986; decree absolute on 27th September. The effective duration of the marriage was thirteen years. He is about 34; she is 31. There are two children, a girl aged 14 and a boy aged 8. The husband serves as a Petty Officer in the Royal Navy, and has recently remarried. The wife has the care of the children where she lives with them in the former matrimonial home. She also works in domestic service for about 112 hours per month. The co-respondent, aged 21, pays for a room in his mother's house where he goes for breakfast, but sleeps every night with the wife. He is a labourer at Devonport Dockyard earning £7,000 per annum gross. The orders made by the Registrar were:
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1. Husband to transfer to wife all his interest in the former matrimonial home subject to the mortgage.
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2. Wife to receive surrender value of insurance policies (£472).
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3. Periodical payments to the wife for her maintenance at the rate of £100 per month until both children attain the age of 18, i.e. a 10 year term.
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4. Periodical payments to the daughter of £110 per month and to the son £90 per month.
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5. Other claims for ancillary relief dismissed.
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6. Claims under the Inheritance Act dismissed.
The husband has given the contents of the matrimonial home and a car to the wife. By his appeal against the learned judge's order he seeks (a) termination or reduction of the order that he pay £100 per month to the wife for her maintenance, (b) an order that his financial obligations to her should be terminated forthwith by an order under section 25A of the 1973 Act as amended by the 1984 Act; alternatively a date for termination should be set substantially earlier than the term indicated by the Registrar and approved by the Judge. He does not challenge any of the other orders.
The effect of the orders may be summarised as follows:
| Capital | |
| Agreed value of matrimonial home | £30.000 |
| Less Mortgage | 20,400 |
| Equity | 9,600 |
| Surrender value of Policy | 472 |
| Capital receipt of wife | 10,072 (plus a car and contents of the home |
| Wife had debts amounting to about | 400 |
| [carried forward] | 400 |
| Capital of husband | NIL |
| On leaving the Royal Navy in 1991 he will receive a gratuity of | £10,000 |
The Registrar assessed the financial needs and resources of the parties and their children. He found that the total housekeeping needs of the wife for herself and the children were at the rate of £300 per month. In addition the mortgage of £179 per month had to be paid—being £2,148 per annum. On this basis her total financial needs amount to £5,748 per annum. Her resources without maintenance for her from the husband come to £5,178. There was thus an annual deficit of £570. The order for periodical payments thus met the deficit and left her with £630 per annum above her basic needs.
The husband's resources were his gross naval pay, which in February was £10,698 less superannuation payments and tax. Since August 1985 he had been living with a Mrs. Bickerton in rented accommodation at £100 per calendar month. He intended in February 1986 to marry the lady, and has done so. She has very little capital and small part-time earnings. He has debts of £1,800 which he is paying off by instalments. The Registrar decided that in the opinion of the court it would be inequitable to disregard the conduct of the wife in affording a home to which her paramour returns to sleep nearly every night and he proposed to take it into account in deciding the issue of periodical payments. He proceeded (paragraph 16 of his judgment):
"It by no means follows however that I should therefore dismiss her application for pp. Considering the needs of the children in isolation would result in a pp order for them, bearing in mind the difference in their ages, of £25 and £20 respectively or a total of £195 pcm. But this total will simply be insufficient to satisfy their needs if one includes the obligation to keep a roof over their heads by paying the mortgage instalments. It might be said that in that event, DHSS will step in at least to the extent of paying the mortgage interest. There is no certainty of this, however, having regard to what would be Mrs. S's total income and particularly if DHSS learn of her relationship with Jones. In any event I can see no good reason why any burden should fall on the tax payer."
The learned Judge approved of the approach of the learned Registrar quoted above. He found that it was inevitable to conclude as a probability that Jones would make a substantial financial contribution. The learned judge continued:
"….. it still leaves the question which the learned Registrar posed at Paragraph 16 of his Judgment. Now this husband had originally agreed to sign over his share of the house to the wife and she had given up her application for a lump sum which might have had some value when his terminal grant came to be paid but the gift of half a share in the equity of a house worth £10,000 isn't the same as a gift of a house the children can live in, because unless the mortgage can be kept up the children are homeless. The Registrar is right that the children need an Order of £300 if they are to live in that home whether or not Mr. Jones is also using the house and I don't think that the mere fact of Mr. Jones using the house entitles a Court to say that the children's mother should not have any money to keep a roof over the children's heads. But on the other hand, in findings that I have made, it would be right to reduce her periodical payments because of the relationship with Jones. Mr. Brown's argument is cogent, that the order the Registrar made took account of these findings by giving her enough to keep a roof over the family head but with limitations as to the size and time limit and the Registrar said 'Mrs. Suter must now look to the future. It is improbable that she will be entitled to any maintenance beyond the youngest child reaching the age of 18 years'."
In connection with the term for which the order should run, the learned judge commented on the fact that the house was being used for the children and said, "One must remember where there are children, a clean break is impossible until they grow up."
Counsel for the appellant's first submission was that the learned deputy Judge misdirected himself in that he never carried out the exercise prescribed as a mandatory duty upon the court by section 25A. By section 25A it is the duty of the court to consider whether it would be appropriate to exercise the powers so that financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court thinks just and reasonable. By subsection (2) where the court decides to make a periodical payments order in favour of a party to a marriage, the court shall in particular consider whether it would be appropriate to require those payments to be made for such term as would in the opinion of the court be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence on the other party.
Those provisions, introduced by the legislation of 1984, enshrine in statute law the principle that after dissoslution of marriage a time may have come, or can be foreseen in the future, when the party in whose favour financial provision has been made can so adjust his or her life as to attain sufficient financial independence to enable that party to live without undue hardship without any further dependence on the other party. This has been described as the principle of a "clean break", the phrase used by Lord Scarman in his speech in Minton [1979] A.C.593. In a number of cases which were decided before the new legislation came into force the court observed that where there were children for whom the parties shared a continuing obligation there is likely to be little or no room for the father and mother to have a clean break from each other. See, for...
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