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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Madray v Madray [2001] EWCA Civ 524 (6 April 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/524.html
Cite as: [2001] EWCA Civ 524
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING COUNTY COURT
(HIS HONOUR JUDGE CATLIN)
Strand London WC2 Friday, 6th April 2001 |
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B e f o r e :
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| SAVITRI KALMINI MADRAY | ||
| - v - | ||
| FRANKIE MADRAY |
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Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-421 4040 Fax No: 0171-831 8838
(Official Shorthand Writers to the Court)
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Crown Copyright ©
- LORD JUSTICE WARD: This is an application by Mr Madray for permission to appeal against the order of His Honour Judge Catlin made on 1st February 2001 when he dismissed Mr Madray's appeal from the order of District Judge Henson made on 4th December 2000. That was an order made in ancillary relief proceedings between husband and wife as I shall call them, although by now they may have had their marriage dissolved by decree absolute. The effect of the district judge's order was that the former matrimonial home be transferred from the joint names of the parties to the petitioner but on payment of a lump sum of £30,000. She was to get periodical payments at the rate of £389 pounds a month in total, transfer of the property and therefore a nominal order. It was more or less a clean break order.
- Mr Madray is an academic. He makes his submissions, if I may say so, very courteously and very very convincingly indeed, and I am at once attracted by the way he puts his case. I have every sympathy with the way he asks this Court to interfere, but the Court of Appeal proceeds on a narrow and fairly restricted basis. This is a second appeal and he has, under the rules, to show there is an important point of principle involved or some other compelling reason to interfere. It is impossible I think to find an important point of principle arising in this case.
- At one stage earlier in the proceedings Mr Madray was concerned at the way the Court was treating the investment property which he has bought. It is a property in his name, and he sought at one stage to exclude it from the calculations, but I think he now accepts that on the clear wording of section 25(2)(a) of the Act the Court is to have regard to "the property..which each of the parties to the marriage has." His point that the wife made no direct or indirect contribution to the property is a good argument to advance in determining the beneficial and the legal interest in that investment property. It seems to me that he is right in saying that it is his. But the fact that it is his does not mean that it is not to be brought back into the pot as a factor to which the Court has to have regard.
- He is concerned also particularly about the way the Court has treated his wife's contribution and he says forcefully and with a lot of justification, I was the main earner in this marriage, by my hard efforts I paid off the mortgage on the matrimonial home, by my sole efforts I acquired this other investment property and, therefore, I have made overwhelmingly greater contribution, and so the district judge and the judge were wrong in the rate they gave to her contribution. The district judge treated their contributions as virtually equal.
- In White v White the House of Lords recently held that contributions to the family are to be regarded as important as contributions to the bringing in of the wealth, and marriage to that extent has become treated as something of a partnership, and if the wife stays at home to look after the children she is doing a job which counts as a valuable contribution.
- There is no point of principle in this part of the case. I would like to explain that a bit further because I like Mr Madray and I do not want him to go away thinking I am not sympathetic. There is a difference between a point of principle, that means legal principle, and the weight to be given to the various factors. The principle is that you look to the contributions you made, including contributions to the welfare of the family. That principle has been acknowledged. In assessing that it is an equal contribution, that is really giving weight to that factor, and weight is for the judges in the Court below. The Court of Appeal does not interfere unless these have gone plainly wrong, and by that I mean to explain that a bit more.
- In all of these matters where you are assessing the weight to be given to any factor or where you are exercising a discretion holding in balance this factor as having that weight, the other factor and the other scale having that weight, the balance to be struck can only be attacked if it is so outside the generous ambit within which people can reasonably disagree. I hope that explains to Mr Madray the difficulties I have in identifying the point of principle, and then identifying why it can be said that the judge went outside that generous ambit. For all these things people have different views and can put different weight to it.
- He says the result of the judgment is to give his wife 63 per cent of the assets. The argument put to His Honour Judge Catlin was to the effect of the disposition gave the wife, perhaps on the calculation counsel was putting forward, some 61 per cent of the capital, but if one brought into account the greater contribution Mr Madray was able to make to his pension compared with hers, then the balance is tilted more to equality.
- Mr Madray is worried about his pension. It is insufficient for him because he has not contributed long enough to build up the necessary reserves, and he is worried that if his wife, who is from Mauritius, returns home he will have insufficient capital to supplement his pension and he will, moreover, likely have the drain of the children looking to him for help because if the wife goes she may take all her money with her and the children will look to him. One does not use this jurisdiction to provide for the future of the children. Parents are expected to behave responsibly. It is not, I am afraid, a factor that one can now take into account and the children must rely on their mother making her share of provision for them especially as she does view this marriage with a greater share of the accumulated wealth.
- So I listened with a huge amount of sympathy to Mr Madray. It may have been on another day a different judge may have come to a different view of the process of equality of division of assets. I fully accept his grievance. I fully accept that he feels that the wife's needs have been unfairly weighted in her favour, that she could easily provide for herself and the family by say £120,000 out of the proceeds of the sale of this property, or even a bit more than that, but once again was a matter for the district judge first, and the judge on appeal secondly, and it was within their power to say that leaving her with the matrimonial home with children whose ages are still only in the teenage years – there are three children, Neesha is 15, Tanya is 14 and Pavan is 11 – so the children have some years still to make their home with their mother, and it was within a reasonable ambit of discretion to say leave them in the matrimonial home that they love, provide for £30,000 which the wife will have to service by a mortgage to enable the husband to meet his needs not as satisfactorily, I accept, but to meet them nonetheless.
- So at the end of the day I am afraid that I simply do not see an important point of principle. I do not see a compelling need for this Court to become involved again. That is the law I have to apply, whether I agree with it or not. It is sometimes harsh on parties to be excluded from the Court of Appeal, but I have to do my best with the law as it is, and I am quite satisfied that this does not justify a third appeal and also quite satisfied that even if treated as such, simply by saying are their reasonable prospects of success, then I would have to say no, there are not, and the consequences of allowing an appeal and incurring the costs of this appeal with the limited assets here is simply not worth it.
- So I am afraid I dismiss this application. I urge Mr Madray – it does not come easily to say it – but to accept the judgment and make the best of the fact that he is in good health, he is in a good job, I hope he has good relations with the children, and to get on and make the best of a bad deal.
Friday, 6th April 2001