Wicks v Wicks
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,SIR JOHN VINELOTT,LORD JUSTICE PETER GIBSON |
| Judgment Date | 18 December 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1218-25 |
| Docket Number | FAFMI 97/1348/F |
| Court | Court of Appeal (Civil Division) |
| Date | 18 December 1997 |
[1997] EWCA Civ J1218-25
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
(HER HONOUR JUDGE PEARLMAN)
Royal Courts of Justice
Strand
London WC2
Lord Justice Peter Gibson
Lord Justice Ward
Sir John Vinelott
FAFMI 97/1348/F
MR C PRATT QC with MR C POCOCK (Instructed by Messrs Withers, London EC4A 3DE) appeared on behalf of the Appellant
MR C WOOD [MR G KINGSCORE 18-12-97] (Instructed by Messrs Guillaumes, Weybridge) appeared on behalf of the Respondent
Thursday, 18 December 1997
Ancillary relief proceedings sometimes advance at the slowest pace, often as a deliberate tactical ploy. The wife and children may be left in pressing need of capital in order to be rehoused. What, if any, power does the court have to make some capital or property provision for her pending the determination of her claims for lump sum and property adjustment orders? That, stating it very broadly, is the interesting and important question which arises on this appeal.
What in fact has happened in this case can be summarised in this way. Mr and Mrs Wicks married in 1985. She is 38 years old, he is aged 60. She is a secretary in a letting agency. He is a property developer. They have two children, a daughter aged 12 and a son aged 6, both at fee paying schools. The husband was a widower and has two adult independent children from his first marriage, Jonathan and Sarah. At the time of the marriage he owned a large house in Surrey and had bought a London house for Jonathan and Sarah. In 1978 the Surrey house was sold and the husband purchased a house in Weybridge in his name and improved it. That was sold at a profit and from proceeds of sale he purchased the property at Abbotswoods Drive, Weybridge. With creditors pressing, he immediately transferred the property to his wife and declared her to be entitled to the whole legal and beneficial interest therein. That notwithstanding, he claims that the property was bought as business venture, the object of which was to carry out substantial improvements to it and make £1m. profit. The husband claims to have spent about £150,000 already and accordingly to have acquired a share—he would say an enlarged share—in the beneficial interest. He estimates that the injection of a further £250,000 would enable him to complete the work and to sell the property for between £1.25m. and 1.5m. His former business partner has indicated a willingness to enter into a joint venture to inject the necessary capital to bring the project to a successful conclusion. These additional works would take six months to complete.
The marriage broke down in November 1995. The wife left. She was admitted to the Priory Hospital for treatment for alcoholism. She and the two children then moved into rented accommodation in March 1996. She presented a petition for divorce at the end of May. She sought all forms of ancillary relief. The husband was ordered to file his affidavit of means but did not do so. He was sentenced to 7 days in imprisonment for that contempt suspended on terms he filed his affidavit within 21 days. Again he failed. In October he went to prison. A decree nisi was granted on 28th October 1996. It has not yet been made absolute. In May the wife was given notice to quit her rented property by 22nd July 1997. After a contested hearing in June, His Honour Judge Oppenheimer made an order that the children reside with the wife. She was receiving no financial support from the husband and claimed income support. The Benefits Agency informed her she had to sell Abbotswoods Drive. The husband objected to the sale and refused to give possession. The wife launched these proceedings.
By an application dated 16th July 1997 she sought orders that:—
"1. Pursuant to Order 31 Rule 1 of the Rules of the Supreme Court and Rule 2.64 of the Family Proceedings Rules 1991, the property known as 4 Abbotswood Drive…being in the sole ownership of the applicant and unencumbered, be sold forthwith at the best price reasonably obtainable in the open market. The petitioner do have conduct of the sale.
2. No later than 14 days from being requested to do so by the petitioner's solicitors in writing, the respondent do deliver up to the petitioner vacant possession of the said property and do not return thereto, for the purpose of facilitating the exchange of contracts for the sale of the said property and the completion thereof; and without prejudice to the foregoing in any event the respondent do no later than one clear day from being requested to do so in writing permit the entry to the said property of such persons as the petitioner shall require for the purpose of valuing and for viewing the said property for sale.
3. From the net proceeds of sale of the said property (defined as the gross selling price less all reasonable costs of sale) the petitioner do receive not less than £250,000 or alternatively not less than 40%, whichever shall be the greater, such sum to be applied solely in purchasing a property for the occupation of herself and the children of the family….pending the final resolution of the petitioner's ancillary relief claim."
On 17th July Her Honour Judge Pearlman made an order in those terms upon the petitioner undertaking, pending the final hearing of her ancillary relief application, not to mortgage, charge or otherwise dispose of her interest in the property that she purchased. The judge also ordered the petitioner to set down her ancillary relief application for final hearing. On 29th September 1997 District Judge Moorhouse directed that it be set down for hearing on the first open date after 20th December 1997. On 8th October 1997 the husband finally filed an affidavit of means then some 15 months overdue.
He now appeals Judge Pearlman's order with leave of this court. Her attention was drawn to Barry -v- Barry [1992] Fam. 140, Green -v- Green [1993] 1 FLR 326 and F -v- F [1995] 2 FLR 45 and to Order 31 RSC which by virtue of Family Proceedings Rule 2.64 also applies to the Family Division. She held:—
"It seems to me that it is quite clear that this court has got power to order the sale of the family matrimonial home on an interim basis pending determination of the ancillary relief proceedings which, I should add, have not even been set down yet. It is quite clear to me that the court has got power to appropriate an asset to one or other party, pending determination of the ancillary relief proceedings, to meet that party's contingent claims. Waite J. said that it is simply a matter in each case of looking forward in time towards the eventual hearing at which the Section 25 criteria will need to be applied and posing the question whether the proposed substitution of assets threatens to place a fetter on the dispositive powers of the judge at that hearing and, if it does, whether the threat is justifiable on overriding grounds, individual or family welfare? The essence of that jurisdiction appears to be that the assets are appropriated in the meantime and remain intact and subject to the court's discretion. It is quite obvious that I have to have regard to all the authorities which state that I have to consider whether appropriation will place any fetter on the court at the final hearing and, if so, whether it is justifiable on overriding grounds of family welfare, whether the merits of the case would otherwise support such appropriation, for example as Thorpe J said in the case of F -v- F, to provide the wife and children with the opportunity to purchase a home….It seems to me, when I look at the law, when I look at the discretion that I have, and all the matters which have been placed before the court, that I fundamentally decide that it is appropriate and just—and if I have to consider the interests of the children—in the interests of the children that I make this order."
If the power claimed by the judge on the authority of Barry, Green, and F does exist, then she may have been entitled her to exercise a discretion, but the correctness of each of those decisions is under challenge. I turn to them.
There the net proceeds of the sale of the former matrimonial home (which had been in the wife's name) were held in the joint names of the parties' solicitors. Her claims for ancillary relief were thought to be due to be heard three months later. As it happened it fell to me to decide those claims though it was a good deal later than that. When a house came on the market which the wife was anxious to buy as a matter of urgency she applied for an order that a proportion of the fund be paid out to her and applied in the purchase of that new home in her own name solely for occupation by herself and the children. Waite J. said at p. 142:—
"A first sight an application expressed in those terms seems to run the risk of falling foul of a jurisdictional problem. The powers which the court now enjoys under the amended Matrimonial Causes Act 1973 in regard to the disposition of capital, wide though they are, do not include any power to order interim capital payments between spouses inter vivos (as opposed to posthumous claims for which the interim provision is specifically authorised by section 5 of the Inheritance (Provision for Family and Dependants) Act 1975). The dispositive power to order a lump sum of capital to be raised and paid by one spouse to the other can be exercised once only, and cannot be exercised piecemeal—first on interim, then on a final, basis.
Both sides in the present case accept the existence of this limitation on the court's powers, although each counsel has reserved...
To continue reading
Request your trial
- Phileoallied Bank (Malaysia) Bhd v Bupinder Singh Avatar Singh and Another
-
Piper & Samuda & Benk-Coker (Pamela) v DYC Fishing Ltd
...to affidavit evidence while there can be no such reliance if the statutory provision is prayed in aid. 52 In this context Mr. Piper cited Wicks v. Wicks [1997] EWCA Civ. 3050 (18 th December, 1997) where at page 7 Ward L.J. said: "Mr. Wood's researches led him to Halsbury's Laws volume 37, ......
- Public Prosecutor v Ishak bin Hj Shaari
- Bupinder Singh a/l Avatar Singh and Another; PhileoAllied Bank (M) Bhd