Wachtel v Wachtel

JurisdictionEngland & Wales
Judgment Date08 February 1973
Judgment citation (vLex)[1973] EWCA Civ J0208-2
Date08 February 1973
CourtCourt of Appeal (Civil Division)
Harry Wachtel
Doresn Wachtel
Norman G. Fyvie

[1973] EWCA Civ J0208-2


The Master of The Rolls (Lord Denning),

Lord Justice Phillimore and

Lord Justice Roskill.

In The Supreme Court of Judicature

Court of Appeal

Appeal (by leave of Mr. Justice Ormrod) by Harry Wachtel, the Petitioner, from order of Mr. Justice Ormrod on 3rd October, 1972.

Mr. ANTHONY EWBANK, Q.C.(instructed by Messrs. Malcolm Fraser & Co.) appeared on behalf of the Appellant Petitioner.

Mr. ROGER GRAY, Q. C., and Mr. EDWARD CAZALEI (instructed by Messrs. Cowles & Co.) appeared on behalf of the Respondent. The Co-respondent did not appear and was not represented.


The judgment which I am about to read is the Judgment of the Court.


Mr. and Mrs. Wachtel were married on 9th January 1954. They were both then 28 years of age. They have two children, a son aged now 14, and a girl of 11. The husband is a dentist in good practice. On 31st March, 1972, there left the home. On 21st July, 1972, there was a divorce on the ground that the marriage had irretrievably broken down. In consequence many things have to be settled. The parties have made arrangements or the children. The son is with the father. He is a boarder at Epsom College, where his fees are paid by his grandfather. The daughter is with the mother. She goes to day-school. There remain the financial consequences. The parties have not agreed upon them. So they have to be settled by the Courts.


On 3rd October, 1972, Mr. Justice Ormrod ordered the husband to pay to his wife (i) a lump sum of £10,000, or half the value of the former matrimonial home in Norwood, South London, whichever be the less: (ii) a periodical payment of £1,500 per annum, less tax: and (iii) a further payment of £500 per annum, less tax, in respect of the eleven-year-old daughter.


The husband appeals to this Court.


The appeal raises issues of wide importance. This Court is asked to determine, for the first time, after full argument, the principles which should be applied in the Family Division when granting ancillary relief pursuant to the powers conferred by the Matrimonial Proceedings and Property Act, 1970 (in this judgment called the 1970 Act) following dissolution of marriage pursuant to the Divorce Reform Act, 1969 in this judgment called the 1969 Act). We were told byCounsel both for the husband and for the wife that it was hoped that this Court might feel able, to quote the phrase used in the argument, "to lay down some guide lines" which would be of help in the future. There are divergencies of view and of practice between Judge and Registrars. Furthermore, Counsel and solicitors are unable to advise their clients with a reasonable degree of certainty as to the likely outcome of any contested proceedings. It is very desirable to remove that uncertainty and to assist parties to come to agreement.


The parties separated on 31st March, 1972. The husband's Petition was filed on 18th April, 1972, and alleged adultery by the wife with a doctor whose patient she was. By her Answer dated 9th May, 1972, the wife denied the adultery and cross-petitioned on the ground that her husband had behaved in such a way that she could not reasonably be expected to continue to live with him. Her Answer was amended later to add two charges of adultery against the husband. The husband denied all the allegations against him. The co-respondent doctor also filed an Anser denying the alleged adultery. These contested proceedings were heard before Mr. Justice Ormrod on five days between 3rd and 7th July, 1972. The learned Judge reserved his judgment at the conclusion of the hearing. He delivered the judgment on 21st July. He had, it seems, previously indicated to the parties that he was not satisfied that any relevant charge of adultery had been proved on either side, but he had given the husband leave to amend his petition so as to rely in the alternative upon section 2(1)(b) of the 1969 Act


The learned Judge granted cross decrees to both parties under section 2(1)(b) of the 1969 Act. He then proceeded to deal with the ancillary matters. He again reserved judgment,and delivered it after the Long Vacation, on 3rd October, 1972. It is against that second reserved judgment that the present appeal is brought.


The crucial finding of fact is that the responsibility for the breakdown of the marriage rested equally on both parties. The learned Judge, having made that finding, determined that the only capital asset, namely the matrimonial home, should be divided more or less equally between the parties. Since the evidence before the Judge showed that the equity of the house in Norwood (after discharging the outstanding mortgage amounting to, some £2,000) was about £20,000, he ordered the husband to pay to his wife a lump sum of £10,000 or half the net value of the house if and when sold, whichever was the less. So far as the periodical payment of £1,500 per annum is concerned, the learned Judge appears to have worked on an earning capacity on the part of the husband of £4,000 to £5,000 gross taxable income. He appears not to have allowed anything for the wife's earning capacity, at least in terms of monetary value. On this basis the £1,500 represents about one-third of the learned Judge's assessment of the husband's earning capacity. But if one adds to that figure of £1,500 the further sum of £500 gross which the Judge ordered to be paid by the husband to the wife in respect of the eleven-year-old daughter, the total is £2,000 gross, considerably more than one-third of the figure" which the Judge took as the husband's earning capacity.


The husband's appeal was founded on the ground that In effect he had been ordered to pay his wife one-half of his capital, and about one-half of his Income. Particular criticism was levelled in this respect at an important passage in the learned Judge's judgment stating that Parliament hadintended in the 1970 Act to bring about a shift of emphasis from the old concept of maintenance to one of redistribution of assets and of purchasing; power. Mr. Ewbank, for the husband, contended that the Judge had but lightly concealed his view that the 1970 Act had brought about a new concept of community of property so that it was just to give every wife or at least almost every wife - half the value of the matrimonial home on the break-up of the marriage, and about half her husband's income. If that were right in the case of a wife held equally to blame with her husband for the breakdown of the marriage, what, he asked rhetorically, was the position of a wife who was wholly innocent of responsibility for such a breakdown. He further asked this: If as in the past, one- third of the combined available income of the parties had been regarded as proper maintenance for a blameless wife, with a reduction (we avoid the use of the word "discount") in the case of a wife the was not free from blame, how could periodical payments totalling nearly one-half of the husband's earning capacity be justified in a case where the wife was found equally to blame with the husband for the breakdown?


Mr. Ewbank also complained that the Judge had really start ed from a presumption that equal division was right and had worked back from the starting point and, allowing nothing - or almost nothing - for "conduct", had arrived at the determination we have stated. He contested the Judge's view that it was right to disregard conduct where blame had been found to exist, especially as Parliament in section 5(1) of the 1970 Act had enjoined the Courts to have regard to the conduct of the parties. He also said that no, or no sufficient, account had been taken of the wife's earning capacity and that the £500 ordered to be paid for the child was in any event too high.He offered a lump sum of £4,000, together with a guarantee of any mortgage instalments which the wife might have to pay in connection with the acquisition of a new home for herself and the child. He urged this Court in any event to reduce the £1,500 to £1,000; and the £500 to £300* or less.


Mr. Gray, for the wife, supported the judgment on the broad ground that the long line of oases decided over the 'last century and more, which dealt with the issue of conduct, especially in relation to a guilty or blameworthy wife, wore all decided when Q the foundation of the right to relief in matrimonial causes was the concept of a matrimonial offence. Now that concept had been swept away by the 1969 Act, the whole question of conduct in relation to ancillary relief required to be reconsidered, even though section 5(1) of the 1970 Act preserved the obligation on the Courts to have regard to "conduct" In language not easily distinguishable from that of the earlier statutes from 1857 onwards. Although Judges and former Judges of the present Family Division of great experience have recently said that section 5(1) was only "codifying" the preceding law and practice. Mr. Gray contended that that was wrong and that the new provisions contained in section 5(1) (f) shoved it to be wrong. Any approach to questions arising out of the 1970 Act founded upon decisions before that Act and the 1969 Act were passed was wrong, since the 1970 Act ought not to be considered part from the fundamental change wrought by the 1969 Act. Mr. Gray particularly criticised the continued application of the so-called "one third rule" under present day conditions, and drew attention to the fact (as is undoubtedly the case) that in Ackermann v. Ackermann (1972) 2 W. L. R. 1234, where this Court recently proceeded on the basis th that so-called rule was still still applicable to cases arising under the 1970 Act, it had done sowithout the matters which have been argued on this appeal having been argued.


We will deal with these issues in order.




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