Vicary v Vicary
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE FARQUHARSON |
| Judgment Date | 31 July 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0731-15 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/0870 |
| Date | 31 July 1991 |
[1991] EWCA Civ J0731-15
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MOLD DISTRICT REGISTRY
FAMILY DIVISION
(INTERLOCUTORY LIST)
IN CHAMBERS
RATTEE J.
Royal Courts of Justice
Lord Justice Purchas
and
Lord Justice Farquharson
91/0870
Mr. M. Connell Q.C. and Mr. M. Bennett (instructed By Messrs Hill Dickinson Davis Campbell, Liverpool) appeared on Behalf of The appellant (respondent).
Mr. Hugh Bennett Q.C. and Miss D. Eaglestone (instructed by Messrs Pannone Blackburn, Manchester) appeared on Behalf on Behalf of the Respondent (petitioner).
This is an appeal by David Anthony Vicary ("the husband") from an order made by Rattee J. on 6th July 1990. The order was made in proceedings for ancillary relief in a matrimonial suit under section 23(1)(c) of the Matrimonial Causes Act 1973 (as amended by the Matrimonial and Family Proceedings Act 1974) ("the Act"), and provided for the payment by the husband to Barbara Patricia Vicary ("the wife") of a lump sum of £450,000. The husband appeals against this sum seeking an order that Rattee J.'s order should be set aside and that he should be ordered to pay "a considerably lesser lump sum". The wife supports the order upon grounds in her notice served under R.S.C. order 59, rule 6(2)(b).
The history as relevant to the appeal may be shortly stated. The parties were married on 14th January 1972. The wife was five years older than the husband. They are now 48 and 43 years of age respectively. There were five children of the marriage. Three of them were the issue of the parties. They were Amanda aged 17, Gareth aged 16, and Donna aged 9. There were also two daughters the issue of the wife's previous marriage who were accepted by the husband into the family. They were Nicola aged 26 and Gail aged 24. Both are married but play a relevant part in the considerations before the court.
At the time of the marriage the parties lived in comparatively modest circumstances. During the marriage there were a number of matrimonial homes. The first at 1 Kirkdale Road, Langho, near Blackburn, was a gift to the husband from his mother before the marriage. There then followed a second matrimonial home which was in the husband's sole name. After the birth of Amanda in July 1973 a third matrimonial home was bought in the joint names of the parties at Hillside Cottage, Nant Road, Coedpoth, near Wrexham. The fourth matrimonial home at 63 Acton Gate, Wrexham, was purchased in joint names in July 1981, and the fifth and final matrimonial home at Bronwylfa Hall, Bronwylfa, near Wrexham, was purchased in July 1985, again in the joint names of the parties. By this time the husband's business had prospered and the standard of living enjoyed by the parties had substantially increased.
The marriage broke down in 1987. On 25th April 1987 the wife left Bronwylfa Hall taking with her the youngest daughter Donna. The husband remained with Amanda and Gareth in the matrimonial home. On 11th June 1987 the wife petitioned for the dissolution of the marriage on the grounds of the husband's adultery with the lady who has since become his second wife. The decree nisi was pronounced on 23rd March 1988 and this was made absolute on 12th May 1988.
The husband continues to live with his new wife in the matrimonial home. Bronwylfa Hall and estate was said then to be worth £380,000. With them there are living two children of the husband's second wife aged 9 and 10 years, and Gareth also remains there. Recently Amanda left her father and now lives with the wife at her present address, 40 Acton Gate Wrexham. This property was bought for her by the husband after the separation and is now said to be worth £130,000. As found by the judge the wife currently has capital of her own of some £57,000 invested in securities. She does not work and has not worked since early in the marriage when she did some clerical work. She has no professional or vocational qualifications. Her home which has four bedrooms is modest by the standards of Bronwylfa Hall. She wishes to spend some £9,000 on building a loft extension to her home. Most of her securities are in non-income producing bonds. The remainder produce a modest investment income.
The husband is chairman and chief executive of a company engaged in fuel distribution and part of the Anglo United Group of Companies. He has a salary of some £67,000 a year and income from substantial investments which together produce for him a total gross income of £165,000 per annum. The value of his net capital assets is between £2.3m. (the wife's estimate) and £1.8m. (the husband's estimate).
On 28th March 1988 a consent order was made in the proceedings for ancillary relief on the wife's claim for financial provision. The central provision of the order was that the husband should pay to the wife a lump sum payment of £250,000 as follows:-
(a) Credit to be given in respect of two payments, made by the husband, on the 6th and 20th days of July 1987, representing monies expended by the husband on the purchase of the wife's present home. These totalled £76,184.23.
(b) £123,815.77 on or before the 15th April 1988, or forthwith after the decree absolute whichever was the later and if not duly paid to carry interest at 15% per annum from 15th April, 1988, until payment.
(c) £50,000 by annual instalments of £10,000 plus accrued interest of 15% per annum on the outstanding balance calculated from the 18th March, 1988, such payments to be made from 15th April, in each year commencing 1989.
(d) On the payment of £123,815.77 the wife should transfer to the husband all her interest in the former matrimonial home at Bronwylfa Hall.
The order also provided for periodical payments to be paid by the husband for the benefit of Donna; that the husband should pay the wife's costs on an indemnity basis and finally provided that the order should be in full and final settlement of any claim that either party might have against the other and that neither should be at liberty to make a claim under the Inheritance (Provision for Family Dependants) Act 1975. This order was agreed to by the wife on the basis of evidence from the husband to the effect that the husband's holding in a company known as The Balderton Company Limited was worth some £347,000 and that his net assets amounted to about £430,000.
The husband had not disclosed that negotiations were taking place for the sale of his shares in The Balderton Company Limited of which he must have been aware. These were completed shortly after the making of the consent order for a consideration worth £2.8m. When the wife discovered the true state of affairs she successfully initiated proceedings which resulted in the consent order being set aside by order of His Honour Judge Roberts Q.C. on 22nd March 1989. In his judgment the judge held that the husband had by knowing non-disclosure of the true position about the value of his assets led the wife to agree to the terms of the consent order. He rejected the defence of acquiescence upon which the husband attempted to rely. It was in these circumstances that Rattee J. had to consider what order should be made under section 23(1)(c) of the Act on the position as it was established before him.
Before the proceedings to set the consent order aside the husband lost no time in moving under the consent order and within eight days had already paid the sum of £123,815.77 to the wife and had received the transfer from her of all her interest in Bronwylfa Hall. Before Rattee J. it was agreed between the parties that the wife's claim should be settled by an order for a lump sum on a clean break basis. The sum claimed by the wife was of the order of £470,000 whereas the husband contended that she should have no more than £250,000. The husband accepted before Rattee J. however, that in view of his liquidity he could, if it were necessary meet an order for the payment for £470,000. He obviously could do this since he had investments which on his own figures could be realised for £798,000 net, quite apart from his holdings in Anglo United itself which was worth some further £898,000 but which, according to the husband, was not readily realisable because of his employment within that Group.
Mr. Connell who appeared for the husband before Rattee J. and has presented the husband's appeal before us, submitted that the figure claimed by the wife was much too high, and distinguished her circumstances from those prevailing in Preston v. Preston [1982] All E.R. 41 and Gojkovic v. Gojkovic [1990] 1 F.L.R. 140, since the wife had in this case made no financial contribution to the family assets. Mr. Connell submitted that the real test was: "What are the wife's reasonable requirements"? That is to say, what were her needs within section 25(2)(b) of the Act.
Relying on the principle said to be derived from Duxbury v. Duxbury [1987] 1 F.L.R. 7, the husband produced evidence in the form of a " Duxbury letter" dated 1 May 1990 from Messrs. Coopers and Lybrand Deloitte, who using a computer model representing the circumstances of the wife had calculated the capital sums required to provide a given level of income net of tax, in current value terms, allowing for inflation over the average remaining expectation of life of the person receiving the capital sum on the following assumptions:-
"(a) That the capital sum would be used up over the subject's average remaining expectation of life.
(b) That stated assumptions applied for :-
(i) the average rate of inflation.
(ii) the return on the...
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