Trippas v Trippas

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE PHILLIMORE,LORD JUSTICE SCARMAN
Judgment Date15 Feb 1973
Judgment citation (vLex)[1973] EWCA Civ J0215-1

[1973] EWCA Civ J0215-1

In The Supreme Court of Judicature

Court of Appeal

Appeal of Ronald Geoffrey Trippas from judgment of His Honour Judge B. D. Bush sitting as Deputy High Court Judge in chambers on 30th October 1972.

Before:

The Haster of the Rolls (Lord Denning),

Lord Justice Phillimore and

Lord Justice Scarman.

Between:
Ronald Geoffrey Trippas
Petitioner
Appellant
and
Emily Kathleen Trippas
Respondent

Mr. ANTHONY HOLLIS, Q. C, and Mr. H. C. TAYLOR (instructed by Messrs. Batchelor, Fry Coulson & Burden, and agents for Messrs. Seagroatt & Co. of Birmingham) appeared on behalf of the husband.

Mr. JOHN WOOD, Q. C. and Mr. EVAN SUTHERLAND (instructed by Messrs. Higgs & Son of Brierley Hill, Staffs) appeared on behalf of the wife.

1

THE MASTER OF THE ROLLS: The husband and wife were married as long ago as 1941 He was 24. She was 18. There are two sons now grown up. In 1957 they separated for over a year; but they came together again. The final separation took place on 15th September 1968. So they were 27 years together, apart from that one year or so. The husband worked hard. He was in the family business which made press tools. He was on the sales side. Unfortunately, when he was young, no doubt entertaining customers, he drank a good deal too much. That gave rise to trouble at home. The wife looked after the home and cared for the family exceedingly well. She went out to work too, so as to help with the expenses. They had none too much money in the early days. But in later years the husband did very well. The family business prospered. But the marriage went badly. The husband's drinking was a serious handicap; but he has now given it up. Eventually each formed other associations, when they separated in 1968 the wife was the one who left the home. She was employed in the Gas Board. She went to live with a married man who was also employed by the Gas Board. She has been with him ever since. In 1968 the husband too had formed an association with one woman. Now he is living with another woman. He means to marry her. The wife has not made up her mind whether to marry the man with whom she is living.

2

Now I turn to the divorce. In July 1970 the husband launched a petition for divorce on the ground of his wife's adultery. In answer, the wife cross petitioned on the ground of the husband's adultery. "then the new Acts came into force on 1st January, 1971, those proceedings were dropped. The husband got leave to issue a second petition on the ground given by section 2(1)(d) of the 1969 Act, that they had beenliving apart continuously for two years; and both sides consented to a divorce. On 13th January, 1972, a decree nisi was pronounced; but before it was made absolute the wife desired to have provision made for her under section 6 of the 1970 Act. On 30th October, 1972, the Judge awarded the wife a lump sum of £8,000; and the husband now appeals to this Court.

3

Mr. Hollis, for the husband, says that that sum should be set aside or reduced. He relied before the Judge, and before us, on the wife's conduct. He says that the wife went to live with the other man 4½ years ago. She has lived with him ever since. That man is earning. So is she. Mr. Hollis relied on the words of Mr. Justice Latey in Iverson v. Iverson 1967 P. at page 138:-

4

"At one end of the scale her adultery may disqualify her altogether. It may do so, for example, when it broke up the marriage, when it is continuing and when she is being supported by her paramour."

5

Those words cannot survive the recent decision of this Court in Wachtel v. Wachtel. This is a good instance where the conduct of the parties can be put on one side altogether. Since 1968 each has been living with another partner. There is nothing to choose between them. The financial dispositions must be made without regard to their conduct.

6

Mr. Hollis also said that a lump sum was not appropriate in this case. He said that a lump sum was only to be used as a substitute for periodical payments - so to speak as a capitalisation of them - and that if, as here, it was not a case for periodical payments, It was not a case for a lump sum.

7

He relied for this purpose on the words of Lord Justice willmer in Brett v. Brett 1969 1 W. L. R. at page 493:-

8

"In assessing the quantum of the lump sum payment, when such an award was appropriate, it was proper to proceed on the same principles as would apply in assessing the quantum of annual payments under the law as it stood before the Acts of 1963 and 1965 were passed."

9

I cannot accept that contention. The Divorce Reform Act 1969 and the Matrimonial Proceedings and Property Act 1970 have revolutionised the law on all these matters. There is no point in going back to the cases on the earlier Acts. They are now out of date. The proper approach now is to take the new Acts and the guidelines stated in Wachtel v. Wachtel:and build on those.

10

So I reject Mr. Hollis is suggestion that a lump sum is simply another way of quantifying maintenance. Under the new Acts, it is a separate provision on its own. In awarding it. the Judge may take into account all the various matters laid down in the Act. He may, for instance, have regard, by reason of section 5(1)(g)> to the contribution which the wife made by looking after the home and caring for the family. He may also have regard, under section 5(1)(g) to the chances of the wife, if the marriage had continued, acquiring some special benefit from it.

11

So I turn to the various items. It is obviously not a case for periodical payments. Nor does the wife seek them.

12

Next, the matrimonial home. It was in joint names. It may fairly be assumed to have belonged to them both in equal shares. But it has already been divided by the partiesthemselves. When they separated in September of 1968 they made arrangements for the division of it. Its value was assessed at £10,000. The husband bought out the wife's interest for £5,000. He paid it to her. That was the end of that item.

13

Next, the furniture. That was divided up at the same time. The sons took some. The wife took some too. That was the end of that.

14

Now comes the point of importance and difficulty. It is the subsequent acquisition of capital by the husband. The husband's company, A. W. Trippas & Co., was a family business which had come down from his father. It belonged to the husband and his brother. In 1969, after the parties had been separated for a year, there was a "take-over". The business was sold by the husband and his brother for £350,000. That is £175,000 each. The husband received £80,000 in cash on the sale. He received the remaining £95,000 in shares in the new business. He was also appointed sales director in the new business at £4,000 a year plus expenses, and allowed the use of a car. I am afraid that sales directorship did not last very long. He surrendered it and received £4,000 as compensation for loss of office.

15

Although the sale did not take place until 1969, it had been under discussion for some time before they separated. The wife gave evidence about what her husband said to her. The Judge accepted her evidence'. The husband said: "If and when the company is taken over, I will settle a lump sum on each of us and have my freedom." The wife said: "That is not nice: it is rather like paying off an old retainer."

16

When the company was taken over, the husband did in fact give £5,000 to each of the sons. The wife says that she tooshould have some part of the money. The wife cannot claim a share in the business as such. She did not five any active help in it. She did not work in it herself. All she did was what a good wife does do. She gave moral support to her husband by looking after the home. If he was depressed or in difficulty, she would encourage him to keep going. That does not give her a share.

17

But Mr. Wood on her behalf relies on a special provision in the 1970 Act. Section 5(1) says that in exercising its powers the Court is

18

"to have regard to all the circumstances of the case including the following matters.

19

(g) in the Case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring:

20

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."

21

We did not have to consider that provision in Wachtel. v. Wachtel, but it is very relevant in the present case. Parliament gives the example of a pension. It gives a case where, if there had been no divorce, the wife might have received a pension after her husband's death. If there is a divorce, this subsection says that the Court can take it into account. It can award her compensation for the loss of thepension. So here. If this marriage had continued, it is plain that the wife had a good, chance of receiving a financial benefit on the sale of the business. Just as the two sons received £5,000 each, she might have received something. The husband might well have felt it proper to settle on his wife a substantial sum out of the very large sum which he was receiving. Now that there has been a divorce, she should be compensated for the loss of that chance.

22

Mr. Hollis submits that she should have no compensation for the loss of that chance. She is living with another man and may marry him. She has thrown in her lot with him. She has severed her connection with her husband. So she should not have any share in this sum which only 'came into being after they had separated. That argument would have been acceptable before...

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