Family Law Hub

Matthews v Matthews [2013] EWCA Civ 1211

Application to appeal various orders in financial remedy proceedings. The W's application to appeal one decision, namely that the judge failed to make an order of nominal spousal maintenance for a limited period in her favour, was allowed. The other grounds were dismissed.

  • Case No: B6/2013/1646

    Neutral Citation Number: [2013] EWCA Civ 1211





    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Tuesday, 20th August 2013



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    (DAR Transcript of

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    Mr John Buck (instructed by Direct Access) appeared on behalf of the Applicant Wife

    The Respondent Husband did not appear and was not represented

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    Crown Copyright (c)Lord Justice Jackson:

    1. This is an application for permission to appeal against the judgment of Mostyn J in financial remedy proceedings. The facts giving rise to this matter are as follows. The parties to this litigation started cohabitation in 2006 and after various separations and reconciliations were married in June 2009. They had two children: F, who is aged six-and-a-half, and N, who is now aged three-and-a-half. The marriage was not a happy one. The parties separated in February 2010 and were divorced in 2012. I shall refer to them, despite the dissolution of their marriage, as "the husband" and "the wife".

    2. The present round of litigation between the parties concerns the financial and property arrangements to be made following the dissolution of their marriage. The husband is a self-employed plumber. He now lives in Acton with his new partner. The wife is a compliance manager in the banking sector. She lives in a rented house in Ascot. Her employment appears to be on the basis of relatively short-term contracts under which she is self-employed. The two children live with the wife. The husband has formerly had contact with them. Unhappily that has stopped at his wish for the time being, but I have little doubt (and I certainly express the hope) that contact will resume in due course.

    3. Although there has been debate about the precise figures, it is clear that the wife has a higher earning capacity than the husband. During their married life, the husband and the wife between them owned four properties, to which I shall refer as Flat 2, Flat 3, Flat 3A, and Flat 4. The further details of their addresses are not material for present purposes. Each of those properties is subject to a mortgage. Flat 2 is owned by the wife and is let to let to tenants. On the judge's findings the net equity in that property is about £39,000. Flat 3 is owned by the wife and is let to tenants. The net equity is about £25, 000. Flat 3A is owned by the husband. It is let to tenants. The net equity is about £38,700. The wife is party to the mortgage on that property. Flat 4 was purchased by the husband and the wife jointly. It is let to tenants. On the judge's findings, because of property value changes and so forth, there is a negative equity there of between £3,000 and £4,000. Both parties have substantial debts, which the judge analysed in his judgment in some detail. I do not repeat that analysis.

    4. In the financial remedy proceedings, the judge went into matters with great care and he made the following order. He accepted an undertaking from the wife that she would use her best endeavours to procure the husband's release from his obligations under the mortgage secured on Flat 4. He accepted an undertaking by the husband to use his best endeavours to procure the wife's release from her mortgage obligations in respect of Flat 3A. He ordered that the husband should transfer Flat 4 to the wife. He ordered that the husband should pay a lump sum of £10,000 to the wife subject to certain specified deductions. He ordered that the husband should pay maintenance of £156 per child (i.e. £312 for both children) per month until the relevant child attained the age of 17 or completed full-time secondary education. The judge remitted the arrears of maintenance which were due under orders made by the Child Support Agency. The effect of the judge's order, once it has been fully complied with, will be that the wife owns Flats 2, 3 and 4 outright, and the husband owns Flat 3A outright. All these ownerships will of course be subject to the mortgages to which those properties are subject.

    5. The wife is aggrieved by the judge's order and applies for permission to appeal to the Court of Appeal.

    6. Originally a plethora of grounds were advanced in writing, some of which Mr Buck, who appears for the wife today, has abandoned. Mr Buck seeks to pursue four separate grounds of appeal. The first ground is that the judge was wrong in ordering a lump sum of only £10,000. He should have ordered that all the assets be liquidated so as to pay the matrimonial debts. His second ground is that the judge should have ordered that Flat 3A be sold and the proceeds be split between both parties. The third ground is that the judge was wrong to remit the arrears which were due under the Child Support Agency order. The fourth ground is that the judge was wrong not to make an award of a nominal spousal maintenance until the youngest child attained the age of 18 or completed full-time education.

    7. So far as the first ground is concerned, I pointed out to Mr Buck that the effect of the judge's order is that three of the four flats belong, or will shortly belong, outright to the wife. If she wants to sell them to pay off debt, then so be it. That is what she can do. The only property which is really in issue is Flat 3A, and that is subject to the second ground of appeal. Mr Buck very helpfully accepted that proposition. Accordingly the first proposed ground of appeal falls away and I refuse permission to appeal on that ground.

    8. The second ground of appeal is that the judge failed to order that Flat 3A be sold and the proceeds be split between the parties. Mr Buck, in developing this ground, points out that the wife was the owner of Flats 2 and 3 before the marriage, so that the fact she retains those flats should not be treated as enuring to her credit. Well, that may be so, but equally the husband was the owner of Flat 3A before the marriage. And just as the wife retains Flats 2 and Flat 3, so it seems to me, and it seemed to the judge, that the husband should retain Flat 3A. Mr Buck urged upon me that the wife had become co-mortgagor and that was a reason why she should become a partial owner of Flat 3A or the proceeds of sale thereof. I do not accept that argument. The effect of the order made by the judge is that the wife will be released from the mortgage to which she is party secured upon that property. Mr Buck next urged upon me that the wife had made substantial contributions to the repairs and refurbishments of that property, which the judge failed to take into account. I do not accept that proposition. It seems to me that, in making the property orders which he did, the judge took fully into account the expenditures made by both parties during the course of the marriage. I refuse permission to appeal on Ground 2.

    9. I turn now to Ground 3. This concerns a sum of £885, which Mr Buck says the judge erred in remitting. Mr Buck relies upon his cross-examination of the husband, although no note or record of that cross-examination has been furnished to that court. Mr Buck tells me that the husband admitted that, despite the stress of the proceedings, his income had not diminished during the course of the litigation. He says that the judge should not have been swayed by the proposition that the husband's earnings were diminished during any part of the period covered by the CSA order.

    10. Looking at the judgment, it does not seem that the judge was swayed by that particular consideration. The judge was making a global order, which took account of all the conflicting issues in this case. The truth is that finances are now going to be tough for both parties in the aftermath of the breakdown of their marriage. Their assets are split up. They are both left with substantial debts. Happily for the wife, she has a higher earning capacity. The judge weighed up all the issues in this case and took them into account in making his lump sum award of £10,000 and his order of £312 per month for the maintenance of the children. As part of a global award, it seems to me that it was well within the judge's discretion to remit the £885. In my view, if this appeal were to go forward there is no realistic prospect that the Court of Appeal would interfere with - dare I say, tinker with - that relatively small element of the total order made. I therefore refuse permission to appeal on the third ground.

    11. I come now to the fourth ground of appeal, which is that the judge failed to make an order of nominal spousal maintenance for a limited period in favour of the wife. In support of this ground, Mr Buck relies upon the judgment of Mostyn J in B v S (Financial Remedy: Marital Property Regime) [2012] EWHC 265 (Fam), in particular at paras 75 and following. Mr Buck submits that the criterion which should be applied is the criterion of need. He accepts that the wife has a higher earning capacity than the husband. On the other hand, the wife is working as a compliance officer in the banking sector. There are insecurities attached to her work. She has the commitments of childcare, with all the vicissitudes which that brings. There is a real risk that she will from time to time be out of work. The husband on the other hand works as a plumber. That may not be such a remunerative field of work as compliance in the banking sector. However, it is by no means impossible that there will be times when the husband is earning and the wife is not.

    12. I have come to the conclusion that this ground of appeal is properly arguable. There is a case for saying that, having regard to all the circumstances of both parties, the judge should have made an order providing for nominal spousal maintenance in favour of the wife for a limited period, possibly until the child N attains the age of 18 or finishes full-time education. I do not say that the appeal on ground 4 is bound to succeed. On the other hand, it does seem to me that this is a ground of appeal which has a real prospect of success. In those circumstances I grant permission to appeal on ground 4, and I refuse permission to appeal on the other three grounds.

    Order: Application granted in part

Judgment, published: 11/10/2013


Published: 11/10/2013


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