White v White

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE THORPE,LORD JUSTICE MANTELL,LADY JUSTICE BUTLER-SLOSS
Judgment Date19 Jun 1998
Judgment citation (vLex)[1998] EWCA Civ J0619-6
Docket NumberFAFMI 97/1075 CMS2

[1998] EWCA Civ J0619-6

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE FAMILY DIVISION

BRISTOL DISTRICT REGISTRY

(MR JUSTICE HOLMAN)

Royal Courts of Justice

Strand

London WC2

Before:

Lady Justice Butler-Sloss

Lord Justice Thorpe

Lord Justice Mantell

FAFMI 97/1075 CMS2

Pamela Rosemary White
Petitioner/Appellant
and
Martin Edward John White
Respondent

PAUL COLERIDGE QC & JOHN KER-REID (Instructed by Bevan Ashford, Devon, EX16 6LT) appeared on behalf of the Appellant

NICHOLAS MOSTYN QC (Instructed by Clarke Willmott & Clarke, Somerset, TA1 1RG) appeared on behalf of the Respondent

LORD JUSTICE THORPE
1

The Background

2

Pamela White is 62 years of age. Martin White is 61. They were both born into farming families and each was farming independently immediately prior to their marriage on 14th September 1961. Both are described as farmers on the marriage certificate. As well as contracting a marriage they contracted an equal farming partnership. The first set of accounts are still available and show the opening capital as at 16th November 1961 to have been £1,884 introduced by the wife (£1,550 in cash and pigs £334) and £1,135 introduced by the husband (£435 cash and a Land Rover £700). In October 1962 the partners acquired Blagroves Farm, then 160 acres, for £32,000 mainly borrowed on mortgage but supplemented by what was effectively a gift of £14,000 from the husband's father to the young couple jointly. Between 1965 and 1971 their three children were born. Blagroves was extended to its present size of 339 acres by various land purchases over the years. In 1971 the opportunity arose to acquire the Willett Estate which was largely tenanted by the husband's father. It was a joint purchase by the husband and his brothers at an advantageous price reflecting their father's tenancy and with the aid of an advantageous AMC advance. Thereafter the brothers farmed separate portions individually. The husband's portion was Rexton Farm and, although 10 miles north of Blagroves, it was effectively farmed by the partnership together with Blagroves as a single unit. Both farms are dairy farms and a third enterprise known as Tower Farms produced cheese and butter partly with milk produced at Blagroves and Rexton. Tower Farms is a partnership between the three brothers and an outsider. In 1993 the White brothers entered into a deed of partition of the Willett estate so that in place of joint ownership of the whole each brother took his individual share of both the estate and the AMC charge.

3

The Case

4

Sadly what seems to have been a happy and successful partnership not only in marriage but in business failed after 33 years. The wife left Blagroves Farm on 3rd August 1994 and in December petitioned for divorce. A decree nisi was pronounced a year later after both spouses had filed applications for ancillary relief. The wife's application of the 13th March 1995 was a conventional application for all forms of ancillary relief. The husband's application of 5th June 1995 sought only capital adjustment. In her first affidavit of 10th March 1995 the wife was unspecific as to her target. However by her second affidavit of 29th May 1996 she said that she wanted to take Blagroves Farm together with live and dead stock and machinery to enable her to farm there independently. Then by her final affidavit of 6th September 1996 she ceded the future of Blagroves Farm to the husband and sought alternatively, inferentially by a sale of Rexton, sufficient capital to set herself up independently in farming elsewhere.

5

These applications came on before Mr Justice Holman in Bristol between 25th and 27th September 1996. His reserved judgment is dated 10th December 1996. He gave the wife a lump sum of £800,000 on a clean break basis and on the basis that the husband took the farms and the business. The order reflecting the judgment was dated 28th February 1997. The wife was extremely dissatisfied with the outcome and obtained leave to appeal on 17th July 1997 from this court. Her notice of appeal is dated 31st July 1997.

6

The Trial

7

At the trial before Mr Justice Holman counsel for the wife filed a written opening. His essential target was defined at paragraph two as follows:

"Her case is that the contributions of each of the parties to the building up of the assets and to the family generally coupled with the length of the marriage should result in an equal division of the assets. She herself wishes to buy a farm and continue farming. She accepts that the husband should also be able to continue farming and continue to derive a good income from it."

8

I must make it plain that counsel in the court below were not Mr Paul Coleridge QC or Mr John Ker-Reid who have represented the wife on this appeal. Mr Nicholas Mostyn QC has been for the husband throughout and in the court below he also submitted a written opening. He submitted that the correct approach was to ascertain what the husband could reasonably raise without destroying the farming business and that resulted in a figure of £740,000 which would meet the wife's reasonable needs. The wife's counsel also filed a schedule of assets amounting to nearly £5.2M. Mr Mostyn responded by highlighting those items which were in dispute. Both counsel filed written closing submissions. The wife's, having re-iterated paragraph two of the opening, moved to an alternative target of £2.2M. The second alternative, specifically disavowed as any part of her case, quantified her claim on a Duxbury basis at nearly £1.2M. In his closing written submissions Mr Mostyn relied on reasonable requirements defined as sufficient cash to enable the wife to pursue her interests and to live in security and comfort for the rest of her days. He submitted that £823,000 would achieve that objective.

9

The Judgment

10

Before considering the submissions on this appeal it is necessary to analyse the judgment below with some care. In the introductory section Mr Justice Holman recorded the wife's contention that the total assets net of costs and CGT on liquidation were worth £5.2M, of which 'the value of the assets at present in her name is £1.9M'. He recorded the husband's rival figures as £4.43M and £1.57M respectively. He recorded her claim to a lump sum of £2.2M plus £190,000 of retained assets giving her £2.39M with which to enable her to buy a farm. That produced a gulf of £1.5M between her case and the husband's offer of £823,000. He continued:

"There are two fundamental issues: first, whether the wife should be entitled to fulfil her desire to continue to farm; secondly, whether in a case such as this it is right to make a net transfer of assets from the wife to the husband."

11

Whether that was a correct formulation of the fundamental issues is at the heart of this appeal.

12

Within the following section on background he dismissed the criteria written into section 25(2)(c) and (g) of the Matrimonial Causes Act 1973 as irrelevant to the case.

13

His third section is headed 'Contributions'. There he made this finding:

"I am quite satisfied that the husband has been a hard working, active farmer. In truth this was a marital and also a business partnership in which, by their efforts and commitment, each contributed to the full for 33 years, and any attempt to weigh the respective contributions of their effort is idle and unreal."

14

I read that paragraph to mean that their separate contributions were so evenly balanced as to be indistinguishable. However he noted as significant the husband's father's contribution both by his gift of £14,000 to the parties jointly at the outset and by enabling his sons to buy the farms of which he was tenant at an advantageous price in 1971.

15

Having reviewed the parties comfortable standard of living briefly Mr Justice Holman resolved the disputed items on the assets schedule leading him to the conclusion that the net total was £4.6M of which £1.52M belonged to the wife.

16

Having dismissed as irrelevant to the case both earning capacities and financial obligations, the judge wrote a section headed 'Financial Needs'. Within this section he decided his first fundamental issue against the wife. He said:

"But in my judgment it would be unwise, and not justifiable on the facts of this case, to break up an existing, established farming enterprise so that the wife, at 61, can embark, much more speculatively, on another. Her claim has strong emotional, but little financial, sense."

17

He then proceeded to assess the cost of buying and equipping a house for the wife at £425,000 and he capitalised her income needs at £555,000 applying the Duxbury tables. Thus he arrived at £980,000 as being her total requirement from which he deducted her pension fund and minor investments, together worth £184,000, to produce a requirement for a lump sum of £795,000 which he rounded up to £800,000.

18

Then in a single paragraph under the sub-heading 'Husband's Reasonable Requirements' he said this:

"If, roughly, the wife were to receive or retain just under £1M from the total in the above schedule, the husband would be left on paper with about £3.5M. Plainly that is ample for, and indeed exceeds, his reasonable requirements simply in terms of a home and income. In my judgment he does, additionally, reasonably require to be able to continue farming in a worthwhile way. He has done so without a break. He is still doing so now. The financial contributions from his family to which I have referred, make it reasonable that he should continue to be able to do so. However, I am quite satisfied that by a variety of combinations of land and building sales and/or borrowing he can raise a lump sum of the order of £800,000 whilst still leaving the core of his...

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