Whiting v Whiting
Jurisdiction | England & Wales |
Judge | LORD JUSTICE BALCOMBE,LORD JUSTICE STOCKER,LORD JUSTICE SLADE |
Judgment Date | 29 January 1988 |
Judgment citation (vLex) | [1988] EWCA Civ J0129-3 |
Docket Number | 88/0055 |
Court | Court of Appeal (Civil Division) |
Date | 29 January 1988 |
[1988] EWCA Civ J0129-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CROYDON COUNTY COURT
(JUDGE JEAN GRAHAM-HALL)
Royal Courts of Justice
Lord Justice Slade
Lord Justice Balcombe
Lord Justice Stocker
88/0055
MISS LYNN DRISCOLL (instructed by Messrs. M. B. Allen & Co., Shirley, Croydon) appeared for the Appellant.
MR. C. R. McCONNELL (instructed by Messrs. Williamsons, Newcastle upon Tyne) appeared for the Respondent.
This appeal, from an order of Her Honour Judge Jean Graham-Hall dated 1st May 1987, raises an important question of the application of the principle of the "clean break" under the provisions of the Matrimonial and Family Proceedings Act 1984.
The parties were married on 13th May 1961. At the time of the marriage the wife was a nurse. There were three children of the marriage, all, boys: Nicholas born on 23rd November 1962, Simon born on 10th April 1965 and Jonathan born on 28th February 1968. The wife gave up her career in nursing when she married and had a family.
The parties separated in 1974. The three sons remained with the wife. She was living in a house, 33 Viney Bank, Courtwood Lane, Addington, Surrey, in the district in which the former matrimonial home had been situated, and the parties entered into the following agreement for the support by the husband of the wife and the children:
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(1) the husband was to pay to the wife £83.88 per month less tax;
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(2) the husband was to pay to each of the children £21.67 per month until the child attained the age of 17 years or completed his full-time education, whichever might be the later;
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(3) the husband should also pay to the wife one-third of his gross annual bonus less tax;
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(4) the property 33 Viney Bank was to be held by the husband and the wife on trust for sale for themselves as tenants in common in equal shares. The wife should be entitled to reside there until her death or re-marriage or the youngest surviving child of the marriage attained 18 years, whichever should first occur;
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(5) the husband undertook to pay the mortgage instalments on 33 Viney Bank plus one half the annual maintenance charge. The wife undertook to pay the other half of the maintenance charge and the whole of the rates on the property;
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(6) the husband undertook to pay (to the wife) one-half the proceeds of the surrender value of a life policy connected with the mortgage on the former matrimonial home. He also agreed that the wife should receive the whole of the profit on the sale of the former matrimonial home, in the sum of approximately £3,000.
At this time the husband was the director of a sports manufacturing company. After the separation the wife started to train as a teacher.
The wife issued a petition for divorce on 2nd January 1975. A decree nisi was granted on 19th February 1975 and on the same date an order was made by consent incorporating the financial provisions agreed between the parties as set out above. The decree was made absolute on 15th April 1975.
On 11th June 1976 an order was made by consent increasing the amount to be paid to each of the children to £26 per month.
The wife completed a three-year training course at a teacher training college to qualify as a teacher of mathematics. She then took a further year's training and attained the degree of Bachelor of Education. She then obtained a post as a mathematics teacher at a school in Croydon and became financially independent. It was agreed that the husband should cease to support her, and by a further consent order dated 22nd January 1979 her periodical payments were reduced to 5p per annum as from 1st September 1978, while as from the same date the payments to each of the children were increased to £37.78 per month until each should attain the age of 17 years. In this order nothing was said about the payments to the children continuing until completion of fulltime education.
In 1979 the husband re-married. His present wife has two children by her previous marriage.
On 4th March 1982 a further consent order was made increasing the amounts payable to each of the children to £53.33 per month. The order is expressed in the following terms:
"the above named respondent do pay or cause to be paid to as from the 1st day of January 1982 periodical payments for the children of the family Nicholas Whiting, Simon Whiting and Jonathan Whiting until they shall both attain the age of 17 years…"
At the date of this order Nicholas was aged 19. The reference to "both" suggests that the order was intended to refer only to Simon and Jonathan who were then both under the age of 17, although Simon was only just so. However, the husband thereafter paid £190 per month for the maintenance of the three children; by an affidavit sworn on 31st March 1983 the wife accepted that this monthly sum of £190 was paid voluntarily save insofar as it was covered by a court order.
In the summer of 1982 the wife decided to move to the north- east of England. 33 Viney Bank was sold, and with her share of the net proceeds of sale (£12,500 plus a small additional sum to compensate her for the costs she had incurred in building an extension to the house) and a mortgage from a building society she bought a three-bedroomed semi-detached house in Morpeth, Northumberland. The three children moved there with her, and she obtained employment as a school teacher in Blyth, Northumberland.
In December 1982 the husband and his present wife jointly purchased the house where they now live with her two children in Selsdon, South Croydon, Surrey. The house is a five-bedroom detached property and cost £77,500, of which his present wife provided £39,500, a mortgage was taken for £24,000 and the balance came from savings and the balance of the proceeds of sale of the former matrimonial home (£12,500). His evidence—which was not challenged on this point—was that his present wife owns 76 per cent and he owns 24 per cent of the equity in the house, which reflects the amount of their respective contributions.
In June 1983 the husband, then aged 48, was made redundant. Up to that time he had been the management services director of Unicorn Products Ltd. His salary in that capacity was £13,000 per annum, with a bonus of some £3,000 per annum subject to the performance of the company. He also had the benefit of a company car and his employers paid his BUPA subscriptions for his family. He received an ex-gratia payment of £10,000 from his ex-employers, of which he applied £5,500 in the purchase of a car which he eventually re-sold at a loss of £1,000; £2,000 as a fee for the services of career consultants; £3,000 for a computer used in his business as a management consultant; and £4,000 on day-to-day living expenses. On 19th August 1983 he ceased to make payments for Jonathan under the order of 4th March 1982. His present wife, who is also a teacher, then earned about £7,000 per annum gross.
In April 1983 the wife had applied for an increase in the amount of the periodical payments both to herself and the three children, but in view of the husband's position consequent upon his being made redundant this application was adjourned sine die. However, in October 1985 she again applied for a further order in respect of Jonathan who, although he had attained the age of 17 on 28th February 1985, was still in full-time education. She also applied for leave to enforce the arrears due under the order of 4th March 1982 in respect of Jonathan, which amounted to £1,013.27. On 26th February 1986 the husband was ordered to pay to Jonathan as from 31st October 1985 until 31st August 1986 the monthly sum of £53.33, but the wife's application to enforce the arrears under the order of 4th March 1982 was dismissed.
On 29th May 1986 the husband applied for (1) an order that the nominal periodical payments order made on 22nd January 1979 in favour of the wife should be discharged, with a direction that the wife should not be entitled to make any further application in respect of periodical payments for herself; and (2) an order under section 15 of the Inheritance (Provision for Family and Dependants) Act 1975 that the wife should not on the death of the husband be entitled to make an application for an order pursuant to section 2 of that Act. That application came before Mr. Registrar Greenslade sitting at the Croydon County Court on 25th February 1987, when he dismissed it with costs. The husband appealed to Judge Graham-Hall; she dismissed the appeal with costs. The husband now appeals to this court with the leave of the single Lord Justice.
Before turning to consider the judgment and the grounds of appeal, it will be convenient to summarise the financial position of the parties and the children as they appear from the evidence:
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(1) Nicholas is a professional musician who lives in Croydon.
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(2) Simon was at Cambridge. He was in receipt of a student grant, plus some support from a large company. He spent his vacations with the wife, but she acknowledged that he might be regarded as completely independent financially. (It seems probable that Simon has now finished his studies at Cambridge, but we are not told of his present position, save that he is independent.)
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(3) Jonathan is now at university. It is accepted that he, too, is independent.
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(4) The wife, aged 48, is still employed as a teacher. As at 25th July 1986 (the date of her last affidavit) her salary was £10,500 per annum gross. On her retirement she will be entitled to a pension, the exact amount of which will depend on her salary at the date of her retirement; but which is also dependent on her number of years of...
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