B e f o r e :
LORD JUSTICE MAY
and
SIR ROUALEYN CUMMING-BRUCE
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JAMES ANTHONY SUTER
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Appellant (Petitioner)
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and
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PAULINE ANN SUTER
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Respondent (Respondent)
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and
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STEVEN JONES
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(Co-Respondent)
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters Limited, Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London WC2).
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MR. ALAN WARD, Q.C. and MR. TIMOTHY COOMBES (instructed by Messrs Wickham and LLoyd Edwards, Dorset) appeared on behalf of the Appellant/Petitioner.
MR. GEORGE BROWN (instructed by Messrs Curtis, Cornwall) appeared on behalf of the Respondent/Respondent.
The Co-Respondent did not appear and was not represented.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
LORD JUSTICE MAY: Sir Roualeyn Cumming-Bruce will give the judgment.
SIR ROUALEYN CUMMING-BRUCE: This appeal raises questions about the meaning and application of section 25(1) of the Matrimonial Causes Act 1973 as amended by the Matrimonial and Family Proceedings Act 1984, and the correct exercise of the powers and duties conferred on the court by section 25A.
The appeal to this court is against the order made by His Honour Judge Pennant sitting as a deputy Circuit Judge on 20th February 1986, when he dismissed the former husband's appeal (herein called "the husband") against the order made by the learned Registrar on 22nd January 1986 ordering the husband to pay to his former wife (herein called "the wife") periodical payments for her maintenance at the rate of £100 per month.
The facts are fully set out in the judgment of the Registrar. In bare summary the parties married in 1971. Decree nisi upon the husband's petition alleging adultery with co-respondent Jones was made on 20th June 1986; decree absolute on 27th September. The effective duration of the marriage was thirteen years. He is about 34; she is 31. There are two children, a girl aged 14 and a boy aged 8. The husband serves as a Petty Officer in the Royal Navy, and has recently remarried. The wife has the care of the children where she lives with them in the former matrimonial home. She also works in domestic service for about 112 hours per month. The co-respondent, aged 21, pays for a room in his mother's house where he goes for breakfast, but sleeps, every night with the wife. He is a labourer at Devonport Dockyard earning £7,000 per annum gross. The orders made by the Registrar were:
1. Husband to transfer to wife all his interest in the former matrimonial home subject to the mortgage.
2. Wife to receive surrender value of insurance policies (£472) .
3. Periodical payments to the wife for her maintenance at the rate of £100 per month until both children attain the age of 18, i.e. a 10 year term.
4. Periodical payments to the daughter of £110 per month and to the son £90 per month.
5. Other claims for ancillary relief dismissed.
6. Claims under the Inheritance Act dismissed.
The husband has given the contents of the matrimonial home and a. car to the wife. By his appeal against the learned judge's order he seeks (a) termination or reduction of the order that he pay £100 per month to the wife for her maintenance, (b) an order that his financial obligations to her should be terminated forthwith by an order under section 25A of the 1973 Act as amended by the 1984 Act; alternatively a date for termination should be set substantially earlier than the term indicated by the Registrar and approved by the Judge. He does not challenge any of the other orders.
The effect of the orders may be summarised as follows:
Capital
| Agreed value of matrimonial home |
£30.000 |
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| Less Mortgage |
20,400 |
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| Equity |
9,600 |
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| Surrender value of Policy |
472 |
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| Capital receipt of wife |
10,072 |
(plus a car and
contents of the home |
| Wife had debts amounting to about |
400 |
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| [carried forward] |
------ |
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400 |
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| Capital of husband |
NIL |
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| On leaving the Royal Navy in 1991 he will receive a gratuity of |
£10,000 |
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The Registrar assessed the financial needs and resources of the parties and their children. He found that the total housekeeping needs of the wife for herself and the children were at the rate of £300 per month. In addition the mortgage of £179 per month had to be paid - being £2,148 per annum. On this basis her total financial needs amount to £5,748 per annum. Her resources without maintenance for her from the husband come to £5,178. There was thus an annual deficit of £570. The order for periodical payments thus met the deficit and left her with £630 per annum above her basic needs.
The husband's resources were his gross naval pay, which in February was £10,698 less superannuation payments and tax. Since August 1985 he had been living with a Mrs. Bickerton in rented accommodation at £100 per calendar month. He intended in February 1986 to marry the lady, and has done so. She has very little capital and small part-time earnings. He has debts of £1,800 which he is paying off by instalments. The Registrar decided that in the opinion of the court it would be inequitable to disregard the conduct of the wife in affording a home to which her paramour returns to sleep nearly every night and he proposed to take it into account in deciding the issue of periodical payments. He proceeded (paragraph 16 of his judgment):
"It by no means follows however that I should therefore dismiss her application for pp. Considering the needs of the children in isolation would result in a pp order for them, bearing in mind the difference in their ages, of £25 and £20 respectively or a total of £195 pcm. But this total will simply be insufficient to satisfy their needs if one includes the obligation to keep a roof over their heads by paying the mortgage instalments. It might be said that in that event, DHSS will step in at least to the extent of paying the mortgage interest. There is no certainty of this, however, having regard to what would be Mrs. S's total income and particularly if DHSS learn of her relationship with Jones. In any event I can see no good reason why any burden should fall on the tax payer."
The learned Judge approved of the approach of the learned Registrar quoted above. He found that it was inevitable to conclude as a probability that Jones would make a substantial financial contribution. The learned judge continued:
"..... it still leaves the question which the learned Registrar posed at Paragraph 16 of his Judgment. Now this husband had originally agreed to sign over his share of the house to the wife and she had given-up her application for a lump sum which might have had some value when his terminal grant came to be paid but the gift of half a share in the equity of a house worth £10,000 isn't the same as a gift of a house the children can live in, because unless the mortgage can be kept up the children are- homeless. The Registrar is right that the children need an Order of £300 if they are to live in that home whether or not Mr. Jones is also using the house and I don't think that the mere fact of Mr. Jones using the house entitles a Court to say that the children's mother should not have any money to keep a roof over the children's heads. But on the other hand, in findings that I have made, it would be right to reduce her periodical payments because of the relationship with Jones. Mr. Brown's argument is cogent, that the order the Registrar made took account of these findings by giving her enough to keep a roof over the family head but with limitations as to the size and time limit and the Registrar said 'Mrs. Suter must now look to the future. It is improbable that she will be entitled to any maintenance beyond the youngest child reaching the age of 18 years'."
In connection with the term for which the order should run, the learned judge commented on the fact that the house was being used for the children and said, "One must remember where there are children, a clean break is impossible until they grow up."
Counsel for the appellant's first submission was that the learned deputy Judge misdirected himself in that he never carried out the exercise prescribed as a mandatory duty upon the court by section 25A. By section 25A it is the duty of the court to consider whether it would be appropriate to exercise the powers so that financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court thinks just and reasonable. By subsection (2) where the court decides to make a periodical payments order in favour of a party to a marriage, the court shall in particular consider whether it would be appropriate to require those payments to be made for such term as would in the opinion of the court be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence on the other party.
Those provisions, introduced by the legislation of 1984, enshrine in statute law the principle that after dissoslution of marriage a time may have come, or can be foreseen in the future, when the party in whose favour financial provision has been made can so adjust his or her life as to attain sufficient financial independence to enable that party to live without undue hardship without any further dependence on the other party. This has been described as the principle of a "clean break", the phrase used by Lord Scarman in his speech in Minton [1979] A.C.593. In a number of cases which were decided before the new legislation came into force the court observed that where there were children for whom the parties shared a continuing obligation there is likely to be little or no room for the father and mother to have a clean break from each other. See, for example, Pearce v. Pearce [1980] 1 FLR 261 and Moore v. Moore [1981] Vol. 11 Fam.Law 109, in which Ormrod L.J. at 109 observed:
"It is one thing to talk about a 'clean break' when there are sufficient financial resources to make a comprehensive settlement. Where there are no capital resources, as here, it is unrealistic to talk about a 'clean break' if there are children. It is not possible for the father and mother of dependent children to have a clean break from one another...... So, in my judgment, the so-called principle of the 'clean break' has no application where there are young children."
I agree with the submission of counsel that the new section 25A imposes a mandatory duty in every case to apply itself to questions set out in section 25A(2) whenever a court decides to make a periodical payments order in favour of a party to the marriage. The judgments in the cases before 1984 have to be read with that in mind. " Though the parties may have to co-operate with each other over children still dependent upon them, it may be possible on the facts to recognise a date when the party in whose favour the order is made will have been able to adjust without undue hardship to the termination of financial dependence on the other party. I also agree that the learned judge appears to have been influenced by the earlier cases to approach the question of termination of financial dependence without specifically addressing himself to the question whether this wife could and should find a way of adjusting her way of life so as to attain financial independence of her husband. So this court is entitled to consider the facts for itself and to carry out the statutory duty prescribed by section 25A. Having said that, I am clear that on the facts it is not possible at this date to predict with any more confidence than the learned Registrar when the wife will have been able to make the adjustment which leads to the inference that it will then be just and reasonable to terminate her right to claim periodical payments from her husband. The children are growing up. It is likely that it will become progressively easier for the wife to organise and increase her earning capacity. But there are too many uncertainties to predict the development of events over the next ten years. Likewise in connexion with the financial advantages which on the judge's finding she can expect to derive, if she wishes, from her association with Jones. It is their declared intention at present not to marry. There has already been one interruption in the continuity of their cohabitation, if that is the right description of their present arrangements, as I think it is. She may become increasingly and permanently financially dependent on Jones. She may not. Consideration of the facts in evidence before the Registrar does not at this date enable the court to predict with any confidence whether she will in the next ten years have had the opportunity so to adjust herself that her claim for periodical payments can be terminated without undue hardship.
The learned Registrar warned her that such would be the position once the younger child reached the age of 18. It may be that that situation will be attained earlier. It is not impossible that even after the younger child is 18, consideration of the wife's needs and earning capacity will still make it just and reasonable for her to claim some support from her husband, though I would expect it to be unlikely. For those reasons I reject the submission that the judge was wrong in refusing to make an order terminating the husband's financial obligations towards his wife.
I do not however found that conclusion upon the learned judge's reasoning and approach. I am satisfied for the reasons that I have stated, that he misdirected himself by failing to apply the test prescribed in section 25A(2). This court is therefore entitled to consider the facts in the way that section 25A(2) has enjoined, and then to exercise the discretionary power itself. So directing myself I come to the conclusion that it would be premature to make an order terminating the wife's claim for periodical payments for her support from her husband.
The second submission made on behalf of the appellant is that the learned judge, following the approach of the registrar, misdirected himself upon the proper construction and effect of section 25 of the Act as amended by section 3 of the 1984 Act.
By section 25(1) -
"It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24 or 24A above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen."
This subsection is new, and in effect replaces the words formerly enacted in section 25 at the end of the list of matters from (a) to (g) to which the court had to have regard amongst all the circumstances of the case. The previous words, which have disappeared from the section as now amended, were: ~ '
"..... and so to exercise these powers as to place the parties, as far as practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other."
The appellant submits that both the judge and the registrar treated the welfare of the children as first and paramount, in the sense in which that phrase was interpreted by Lord MacDermott in the context of section 1 of the Guardianship of Infants Act 1925: (see J. v. C. [1970] A.C.668,710). There Lord MacDermott considered the two adjectives in the phrase, and said:
"That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed."
I agree with the submission that counsel culled from a commentary by a distinguished commentator that the phrase "first and paramount" means simply "overriding", and that if the draftsman had omitted the adjective "first" the meaning and effect of the single adjective "paramount" would have been the same. We are faced with the problem of discovering the intention of Parliament when it used the phrase "the first consideration" without the conjunction of the adjective "and paramount" which gave the phrase in section 1 of the Guardianship of Infants Act its dominant force and effect.
The duty of the court under section 25(1) as amended is to have regard to all the circumstances, first consideration being given to the welfare while a minor of any child of the family under the age of 18. As regards the exercise of the powers in relation to a party to the marriage, the court shall in particular have regard to the matters set out in the sub-paragraphs lettered (a) to (h). (g) introduces a matter not previously included:
"(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;"
Having regard to the prominence which the consideration of the welfare of children is given in section 25(1) being selected as the first consideration among all the circumstances of the case, I collect an intention that this consideration is to be regarded as of first importance, to be borne in mind throughout consideration of all the circumstances including the particular circumstances specified in section 25(2). But if it had been intended to be paramount, overriding all other considerations pointing to a just result, Parliament would have said so. It has not. So I construe the section in requiring the court to consider all the circumstances, including those set out in subsection 2, always bearing in mind the important consideration of the welfare of the children, and then try to attain a financial result which is just as between husband and wife.
Consideration of the learned judge's judgment, taken in conjunction with paragraphs 15 and 16 of the judgment of the registrar which he clearly approved, shows that the learned judge treated the consideration of the childrens' welfare as paramount, and controlling the effect of the interplay of all other matters. Though the registrar and the judge gave some effect by way of reduction of the periodical payments to the financial contribution of Jones to the wife's finances, which the judge held would be substantial, the order was calculated in such a way as to provide the wife with a periodical payments order which would enable her to make all the mortgage payments. And the reasoning thus proceeded because it was considered that the childrens' welfare required that solution, although the registrar for the reasons that he gave thought that ordinary people would regard the result as unjust. In my view the learned judge fell into error in treating section 25(1) as requiring him to give effect to a consideration of the childrens' welfare as the overriding or paramount consideration. This was a misdirection, and this court is entitled to review the facts, apply the statute on its proper construction, and decide how to determine the wife's financial claim for periodical payments.
In the course of the appeal before us the respondent sought leave to put in an affidavit dealing with the husband's conduct during continuance of matrimonial co-habitation. There was no cross-appeal by the respondent to the effect that the judge was wrong to regard the wife's association with Jones and invitation to him to live in her home as a consideration relevant under section 25(2)(g). No evidence had been filed or given in evidence by the wife alleging misconduct on the part of the husband as relevant to the wife's financial claim for periodical payments. Further, in the proceedings before the registrar and the judge there was no issue between them about the facts of the association between her and Jones, including his almost continuous residence with her every night in the former matrimonial home. This was a case in which there had never been contested issues about the facts of conduct. The only way in which conduct had become relevant under section 25(2)(g) was in relation to the question whether it was inequitable to disregard the wife's conduct with Jones on which she had not appealed against the judge's decision not to disregard it. We refused to admit the affidavit sought to be tendered to us. I observe that the Practice Direction (Family Division: Transfer of Business) dated 28th April 1986 and published [1986] 1WLR 1139 only directs that transfer of claims for financial provision should be made if conduct is relevant where there are contested allegations of conduct. These allegations of the wife's conduct which were the only ones hitherto raised were not contested allegations. The question was what if any effect the conduct should have for the purposes of section 25. The question which arose for the purpose of section 2 5 was whether it was inequitable to disregard the conduct of the wife, who had invited the corespondent to spend most evenings and nights at her home. It was agreed before the judge that evidence before him should be limited to the issue as to what if any contributions Mr. Jones was making, or was likely to make to the finances of the wife. She described the situation in the words "We are lovers. We sleep together every night except when he goes off to Kent with friends." She did not ask him for money and he made no financial support for the household. He gave evidence that there was nothing to stop their relationship as far as he could see. He takes her out twice a week. On 14th November 1985 his income was £7,000 gross; £4,050 net. The learned judge considered that Jones could make a substantial financial contribution. He affirmed the registrar's order of £100 per month, which was clearly related to enabling the wife to pay the mortgage payments. In fact, leaving Jones out of account, she would have about £12 per week above the basic needs of herself and the children. We heard various calculations from her counsel in the familiar one/third rule calculations. In my view they do not help. My conclusion is that it was wrong to order the husband to pay periodical payments to his wife in addition to the substantial benefits which she enjoys as a consequence of the capital transfers that he has already made. He has remarried, and has to begin with provision of accommodation for himself and his wife, which may be rented accommodation or in married quarters. Mr. Jones told the judge with becoming candour, "It could be said we have been as close as husband and wife and it is likely to continue as far as I can see. I haven't a lot of money."
In my view there is no reason, on the facts found, to expect that the children will find themselves without a roof over their heads if periodical payments for the wife came to an end. Jones should and could make a sufficient contribution to the expenses of his residence without any contribution from the husband beyond his payments of maintenance for the children. The wife may organise herself to earn more remuneration by her own efforts. If there is a financial crisis, I see no reason why the DHSS should not be asked to contribute to the mortgage interest: see Barnes v. Barnes [1972] 1 WLR 1381 and Stockford v. Stockford [1982] 3 FLR 58. The principle in point is that the husband should not be ordered to pay more for his wife's support than is just.
So I approach the question whether any, and if so what, reduction should be made in what otherwise would have been an appropriate order for periodical payments in support of the wife in order to achieve a result which is reasonable. I return to figures set out in pages 3 and 4 of this judgment and consider the needs and resources of the parties and the fact, relevant as part of all the circumstances and to sub-paragraph (g) of section 25(2), that the wife has invited her lover to live for the foreseeable future in the former matrimonial home with herself and the children, without seeking or receiving any contribution to the expenses of maintaining that house. The gentleman in question is a bachelor aged 21 with a gross income of not less than £7,000, subject to tax. The figures demonstrate that the payment of the mortgage amounts - to £2,148 per annum, and that after payment thereof she has a deficit of £570 per annum. It is reasonable to infer that Mr. Jones is in a position to contribute at least £12 per week for the privileges which he enjoys in the furnished residence which, as a consequence of the husband's transfer of property, now belongs wholly to the wife, subject to the mortgage. It is material to bear in mind that since he moved to reside in the wife's house Mr. Jones has continued to pay £12 per week to his mother for the room in which he no longer sleeps. As the wife is now for practical purposes living with Mr. Jones in the former matrimonial home, it is just and reasonable to make an order on the basis that she require him to contribute not less than £600 per annum for the expenses of the house which she has invited him to enjoy. On that basis I would not think it just that the husband should do more than he has done by making the capital transfers already completed and by continuing to make payments to the children amounting to £200 per month. In that situation the wife and childrens' needs are met, she can afford to run the home and pay the mortgage, and the husband and wife can expect to enjoy a comparable standard of living in the accommodation in which they respectively live.
I would move that the appeal be allowed and that the husband's obligation to contribute to her support be reduced to a nominal order of £1 per year.
LORD JUSTICE MAY: I agree.
Appeal allowed. No order for costs. Legal aid taxation of both parties' costs. Application for leave to appeal to the House of Lords refused.
