Walker v Walker
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CUMMING-BRUCE,LORD JUSTICE GRIFFITHS,SIR ROGER ORMROD |
| Judgment Date | 03 May 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0503-1 |
| Docket Number | 83/0182 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 May 1983 |
[1983] EWCA Civ J0503-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr. Justice Sheldon)
Royal Courts of Justice
Lord Justice Cumming-Bruce
Lord Justice Griffiths
and
Sir Roger Ormrod
83/0182
81-D-676
MR. J. JACKSON, Q.C. and MR. N.A.J.G. MOSTYN (instructed by Messrs Giffen Couch & Archer, Leighton Buzzard) appeared on behalf of the Appellant (Petitioner).
MR. E. JAMES HOLMAN (instructed by the Treasury Solicitor appeared on behalf of the Ministry of Defence (Respondent).
This is an appeal by the petitioner wife in matrimonial proceedings against the order of Mr. Justice Sheldon when he discharged two parts of an order made by Mr. Registrar Elliott in the Bedford County Court, dated 5th April last year and amended by another registrar the next day. This appeal is only concerned with those orders made by the learned Registrar insofar as orders were made imposing the duty of compliance upon Her Majesty's Paymaster General for the regimental payments. The short point raised on the appeal is the question whether the learned judge was right in his view that the effect of s.203 of the Army Act 1955 was to put it outside the powers of the court to make the orders that the registrars made on 5th and 6th April last year.
I begin by turning to the order of Mr. Registrar Elliott dated 5th April 1982. The orders sought were pursuant to an ex parte application on behalf of the petitioner wife, supported by the affidavit of the petitioner dated 2nd April 1982, and that affidavit in terms stated that the application was made under s.37 of the Matrimonial Causes Act 1973. On 5th April Mr. Registrar Elliott made the following orders:
1. In the event of Her Majesty's Paymaster General not having accounted and paid to the Respondent or his agents or otherwise such monies as are due to him by way of a re-settlement grant or otherwise following upon his service with Her Majesty's Armed Forces or any monies due to him he do pay such sum or sums into this Court to remain in Court until the trial of the issues relating to ancillary relief for the Petitioner and the children of the family or further order.
2. In the event of Her Majesty's Paymaster General having paid such sum or sums as set out in Clause 1 hereof to the Respondent or his agent at the date of service upon Her Majesty's Paymaster General the Respondent do pay such sum or sums into this Court until the trial of the issues relating to ancillary relief for the Petitioner and the children of the family or further order.
The amendment made the following day added to the learned Registrar's order, after the words "Her Majesty's Paymaster General" which appeared in both orders, the words "and/or The Regimental Paymaster".
The learned judge, for the reasons which he stated in his judgment, decided that by virtue of the provisions of s.203 of the Army Act 1955, there was no power in the court to make the order made by the learned registrar insofar as it sought to bind Her Majesty's Paymaster General to deal with monies payable to the respondent in the ways stated.
In this court there is no appeal on behalf of the respondent personally against that part of the orders made by the judge and the registrar which imposed upon the respondent a duty to pay the monies into court. The only appeal with which this court is concerned is the appeal by the petitioner wife whereby Mr. Jackson, on her behalf, submits that the judge was wrong in discharging the order made by Mr. Registrar Elliott, as amended the next day by the addition to which I have referred, imposing upon the Paymaster General that, in the event of his not having accounted and paid to the respondent monies due by way of a resettlement grant or otherwise, such monies should be paid into court and stay in court until the trial of the issue. In those circumstances it is unnecessary for this court to make any observation upon that part of the order made by the learned judge against which there is no appeal and it is important that I should make it plain that nothing in this judgment relates in any way to that part of the learned judge's order which is not before this court as an order subject to appeal. I am careful to say nothing about that order and I will not mention it again in the course of this judgment. I address myself to the only order subject to the jurisdiction of this court on the notice of appeal.
It is only necessary, in order to make this judgment intelligible, to make a brief extract of certain dates because, insofar as the facts are material, they are all sufficiently to be found in the judgment of the learned judge and as this court is concerned only with the question of construction, the reasoning of the judgment will not be clarified by reference to examination of the detailed facts.
The skeleton facts to which I refer are these. On 3rd April 1976 the husband and wife were married. There were three children of the family. On 22nd May 1981 there was a separation. On 26th June 1981 the wife petitioned for. dissolution, in reliance upon s.1(2)(b) of the Act. On 26th October 1981 the wife filed her form giving notice of application for financial provision and the relevant applications for the purposes of the instant proceedings are her applications for periodical payments and for a lump sum. The wife inquired on 26th October 1981, while her husband was still a serving soldier, whether his prospective resettlement grant could be preserved by consent. On 4th January 1982 the learned registrar gave directions in the ancillary proceedings, including a direction that the husband should file an affidavit of means. He did not comply. On 4th March 1982 the husband left the Army on terminal leave. On 24th March 1982 there was a decree nisi. On 1st April 1982 the husband was discharged from the Army with an entitlement, by way of resettlement grant, of £2,436. His entitlement arose under the provisions of the Royal Warrant and not otherwise.
On 2nd April, as I have earlier stated, the wife applied under s.37 of the Matrimonial Causes Act 1973, for preservation of the fund, to wit the £2,436 to which her husband was entitled pursuant to the Royal Warrant. On 5th April 1982 the learned registrar made a further direction and made the injunctions to which I have already referred, including the injunction against Her Majesty's Paymaster General and the Regimental Paymaster.
On 13th April 1982 the Ministry of Defence on behalf of the Crown raised objection to the order insofar as it affected them. The registrar transferred the application to the High Court and in his judgment the learned judge deals with the machinery of that matter, which is not material for the purposes of this appeal.
On 6th May 1982 there was a decree absolute, the wife having issued a summons under s.37 of the Matrimonial Causes Act a fortnight before. On 21st May 1982 the respondent's solicitors took themselves off the record and the order of the learned judge was made on 29th July. Since the respondent's solicitors were taken off the record, he has taken no part in these proceedings.
The learned judge, for reasons stated in his judgment, decided that s.203 of the Army Act 1955 precluded the court from making the order which the learned registrar had made, ordering the Paymaster General to pay the resettlement grant monies into court in the event of their not already having been paid to the respondent personally. In the part of his judgment which dealt with that issue, he was satisfied that the resettlement grant was a grant, and though there was at one time an issue about it, Mr. Jackson takes no point about it now that he knows the accurate facts about the entitlement of the respondent to the monies.
The learned judge expressed the view that the proposed order would: not in itself have the affect of directing payment of the gratuity to another person, because the money while in court would legally...
To continue reading
Request your trial
-
Happe v Happe
...be subject to the restriction against assignment or charge under section 203(1). Reference was made to the judgments of this court in Walker v. Walker [1983] Fam. 68 which concerned an order made by the registrar that the Paymaster-General should pay into court the moneys due to the husband......
-
Bank Mellat v Kazmi
...Co. Ltd. v. Irish Marine Management Ltd. (1978) 1 WLR, at p. 974 C. Accordingly, had it not been for the decision of this court in Walker v. Walker (1983) Fam. 68, Miss Williamson's submission that the order sought by the Bank would not offend s.16 (l) could have been accepted without more ......
-
Cotgrave v Cotgrave
...have been ordered to pay lump sums, specifically dealing with section 203 of the Army and Air Force Acts. Those started with the case of Walker v. Walker [1983] 4 F.L.R. 779—and there have been several cases since then all of them either in relation to the Army or the Air Force. It is clear......
-
Ranson v Ranson
...so, the order is clearly contrary to the intention of Parliament. 8 Our attention has been drawn to three authorities, the first being Walker v. Walker [1983] Fam. Div. 68. That was a case in which a wife/petitioner sought dissolution of the marriage whilst her husband was still a serving s......