Toleman v Toleman

JurisdictionEngland & Wales
Judgment Date11 July 1984
Judgment citation (vLex)[1984] EWCA Civ J0711-3
CourtCourt of Appeal (Civil Division)
Docket Number84/0295
Date11 July 1984

[1984] EWCA Civ J0711-3





Royal Courts of Justice


Lord Justice Cumming-Bruce


Mr. Justice Park


No 83 D 57

Doreen Toleman
Petitioner (Respondent)
Robert Henry James Toleman
Respondent (Appellant)

MR. G. MERCER (instructed by Messrs. Ford, Simey & Ford, Solicitors, Exeter, Devon) appeared on behalf of the Respondent (Appellant)

MR. D. TYZACK (instructed by Messrs. Stone & Co, Solicitors, Exeter, Devon) appeared on behalf of the Petitioner (Respondent)


This is the judgment of the court.


This is the husband's appeal from the order of His Honour Judge Sir Jonathan Clarke dated 23rd March 1984 whereby he refused to give the husband leave to appeal out of time from an order made by consent in the Exeter County Court by Mr. Deputy Registrar Feinson on the 24th October 1983.


The wife is now aged 54 and the husband 55. They were married in 1949. There is one daughter, now aged 20. At the time of the marriage and up to March 1969, the husband was serving in the Royal Navy. Throughout that period, he supported his wife by providing her with a substantial proportion of his pay. The wife also worked at a shop in Exeter. For the first three or four years of the marriage the parties lived with the wife's mother, so that the wife was able to bank her earnings.


By her affidavit the wife alleged that in 1953, with her savings, a loan from her brother and a mortgage, she was able to buy in her own name the first matrimonial home. The husband was then serving in Korea; he did not object to the house being put in her name. The wife continued to work either part time or whole time in Exeter shops. The wife says that in 1955 her mother gave her £985 for the purpose of paying off the mortgage, upon condition that her mother lived rent free in the house. The bargain was made. In 1966 that house was sold; with the proceeds of its sale and a mortgage of about £1,000 she bought 30 Newhayes Close, Exeter, which then became the matrimonial home. It was bought in the joint names.


By his affidavit the husband challenged the wife about her account of his contribution to the marriage and purchase of the second matrimonial home. He alleged that on being discharged from the Royal Navy, he received a gratuity of £100 and, by remitting part of his pension, he was able to contribute a sum of £600 towards general expenditure on the matrimonial home, and said that within a few weeks of his discharge he obtained employment as a porter at Exeter University and he is still in that employment.


On 1st August 1980 the husband left the home. He has never returned. On 9th January 1981 the wife obtained in the Exeter Magistrates' Court on the grounds of the husband's admitted adultery a separation order whereby he was ordered to pay maintenance at the rate of £23 per week. By a further order dated 28th April 1981 the amount was increased to £25 per week.


By her petition dated 24th January 1983, the wife prayed for dissolution of the marriage upon the ground that the parties had lived apart for a continuous period of at least two years immediately preceding the presentation of the petition, namely, from 1st August 1980.


She also sought ancillary relief consisting of a lump sum order and property adjustment order. By an order dated 23rd March 1983 the Registrar gave directions in respect of the application for ancillary relief. On 7th June 1983 the wife was granted a decree nisi, which was made absolute on 26th July 1983. On 24th October 1983 the wife's application for ancillary relief was to be heard by Mr. Deputy Registrar Feinson. Both parties were represented by counsel, the wife by Mr. Tyzack and the husband by Mr. Mercer.


By paragraph 19 of her affidavit sworn on 3rd May 1983 the wife summarised her claim in these words:

"I am 53 years of age and I believe that the Respondent is 54 years of age. I put him to proof of his Pension position. My own needs are for a secure roof over my head and maintenance. I need a home of suitable size to enable me to have Alison to stay with me from time to time. I am considering moving from Exeter to live near Alison possibly in Bristol, but I have not made my mind up about that at the moment. Accordingly I humbly ask this Honourable Court to make such Orders for financial provision for me as are just and reasonable in all the circumstances".


By his affidavit sworn on 7th June 1983, the husband said that his wages as a porter, together with his small pension from the Royal Navy, were insufficient to cover his weekly outgoings including the £25 payable to his wife (he provided full details of all these sums) so that he was suffering severe financial hardship and that, apart from his interest in the matrimonial home, he had no capital. After 30 years of married life, 30 Newhayes Close represented the parties' only real asset.


There were discussions between counsel with a view to settling the dispute. The husband suspected that his wife was associating with another man. If there were a reasonable probability of such an association leading to marriage, then this would be a factor which would influence strongly the husband's attitude towards the eventual disposal of the house. On his wife's remarriage, the court order would cease to have effect (s.4(2) Domestic Proceedings and Magistrates' Courts Act 1978) and, if her future husband already had a home in which they both would live, he could reasonably claim a fair proportion of the proceeds of any sale of 30 Newhayes Close. Further, it can safely be assumed that the wife would be aware, or at least be made aware, of the effect upon the negotiations of any admission that remarriage was or might be contemplated.


In her affidavit, the wife had said that she had not made up her mind about the location of her future home. In the course of the negotiations, in which the husband's suspicions of the wife's possible future marriage were voiced, the wife, through her counsel, said that she had formed the intention to go to Bristol and there to buy a house in which she and her daughter, who was already living in Bristol, could live together. In support of this assertion Mr. Mercer was shown particulars of houses by Bristol estate agents giving the prices of suitable property. The husband nevertheless wanted it to be made clear beyond argument, that his consent to any order would be upon the basis that she did not intend to remarry. He therefore instructed Mr. Mercer that he would not agree to any order unless Mr. Tyzack, on the wife's instructions, stated that the wife had no intention of remarrying or cohabiting. Mr. Tyzack was able to give that assurance.


The terms of an agreed order were then drawn up. Mr. Mercer indorsed his brief: "Consent order reached on basis that petitioner had no intention of remarrying or cohabiting". Mr. Tyzack did not make a similar indorsement on his brief, but he accepts that Mr. Mercer's indorsement is accurate.


The consent order thus made as a result of the agreement made by the parties through their counsel contained ten paragraphs, all relevant in the present proceedings:

"1. The property known as 30 Newhayes Close, St. Thomas, Exeter shall be sold. The Petitioner having conduct of sale.

2. The net proceeds after payment of selling agents commission and legal costs shall be divided as to £2,500 thereof for the Respondent and as to the remainder thereof for the Petitioner.

3. The Petitioner shall apply such moneys as she shall receive under paragraph 2 hereof in or towards the acquisition of...

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