Family Law Hub

Torrington v Torrington [2013] EWCA Civ 1631

W's application for permission to appeal from a judgment and order that a separation agreement made 20 years earlier, but never made an order of the court, should become an order of the court. Application refused.


  • Neutral Citation Number: [2013] EWCA Civ 1631

    B6/2013/0610

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    PRINCIPAL REGISTRY OF THE FAMILY DECISION

    (MRS JUSTICE PARKER)

    Royal Courts of Justice

    Strand

    London WC2A 2LL

    Thursday, 21 November 2013

    B e f o r e:

    LORD JUSTICE FLOYD

    Between: 

    TORRINGTON (Appellant)

    v

    TORRINGTON (Respondent)

    DAR Transcript of

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    Mrs L Torrington appeared in person with the assistance of Mr T Grubb, her McKenzie friend

    The Respondent was unrepresented

    J U D G M E N T

    (As approved by the Court)

    Crown copyright(c)

    1. LORD JUSTICE FLOYD: This is an oral application for permission to appeal, for an extension of time for appealing and for a stay of execution. The proposed appeal is by Mrs Torrington from the judgment and order of Mrs Justice Parker, dated 28 January 2013.

    2. Mr and Mrs Torrington were married in 1985 but by 1991 they had separated. That is more than 20 years ago. They have one child, A. They entered into a financial agreement dated 26 June 1991 on the basis that they both recognised that their marriage had broken down.

    3. The application which was before Mrs Justice Parker on 28 January was an application by Mr Torrington to make the separation agreement of 26 June 1991 an order of the court. That had not occurred during the intervening 20 years plus. The court made a decree nisi after two years' separation and consent in January 1995 and that decree was made absolute in August.

    4. The judge found that the wife was the wealthier of the two parties. The husband was at the start of his career and apart from his pension and his interest in the matrimonial properties he had no significant capital of his own. The agreement provided that the husband would transfer forthwith his interest in the family home and part with his interest in a property in France. In return, the wife was to pay the husband a lump sum. He was to pay maintenance for the child at the rate of £2,000 per year and to bear half the costs of A's school fees. The wife was to have care and control.

    5. The agreement was negotiated with the benefit of expert legal advice on both sides, although the wife has subsequently expressed dissatisfaction with the quality of advice which she received. It was expressed to be a full and final settlement. It was provided in terms in the agreement that the parties would invite the court as soon as practical after pronouncement of decree nisi to make the agreement an order of the court.

    6. The husband has subsequently remarried and has three children by his present wife. He has prospered whilst, as the judge said, the wife has not been so fortunate.

    7. At paragraphs 21 to 31 of her judgment, Mrs Justice Parker considered the authorities in the family jurisdiction concerned with the weight which is properly to be given to separation agreements of this nature when considering what is the fair solution to the financial aspects of a divorce.

    8. Before the judge, Mrs Torrington was represented by counsel and argued essentially five points: that there had been a material non-disclosure by the husband prior to entering into the agreement, that she had been under pressure from the husband to sign the agreement because he would not leave the family home until it was agreed, that she was bullied into signing by her solicitors, that there was no satisfactory explanation for the failure to make the agreement an order of the court and that as a consequence of those points the court should scrutinise the parties' current positions before endorsing what was, in essence, an historic document.

    9. The judge rejected the non-disclosure point on the facts. She held that it cannot seriously be said that the wife was misled. The wife had adopted the agreement as her own document with the figures for the husband's assets properly inserted. The judge also rejected the attack based on pressure by the husband. He was also, as the judge found, under pressure at the relevant time. There were no complaints raised about pressure contemporaneously with the signing of the agreement. Similarly, she found that the complaints based on pressure by solicitors were not made out.

    10. The judge also considered with some care the question of why the agreement was not made an order of the court. She recognised that either party could have applied to the court to fulfil that aspect of the agreement. She concluded at paragraph 51 that each party thought that the agreement was enough to secure their respective positions.

    11. The judge also recognised that it was the duty on the court to consider the section 25 criteria and fairness and to achieve a just result. At paragraph 59 she said that:

    "The exercise the court conducts is not one of enforcing the agreement but of determining whether an order should be made in the same terms as the agreement but I consider that the court is under no duty to examine in detail the parties' current financial circumstances in deciding whether the agreement is now fair."

    She then said:

    "My approach is to ask myself the following: had the parties an accord which they intended to resolve the matrimonial affairs, how have they subsequently conducted themselves?"

    She concluded that the parties had acted on the agreement, relied on it and gained peace of mind from it or certainly were entitled to gain peace of mind from it for over 20 years. She said:

    "In those circumstances the existence of the agreement must be regarded as of magnetic importance, notwithstanding that the circumstances of this case are very far removed from those of Crossley and in those circumstances the court is under no duty to compare them, let alone to make any adjustment."

    Accordingly, the judge made an order in substance that the agreement should become an order of the court.

    12. Mrs Torrington is now representing herself with assistance from Mr Grubb, a McKenzie friend. Not surprisingly she has found the process of doing so a stressful one but she has in the course of the hearing this morning very clearly made her points. She says firstly that a principal complaint is that the judge did not have regard to the section 25 criteria and the overriding objective to achieve a fair outcome.

    13. She argued that the judge should have considered the matter more clearly both in 1991 and in 1995. By 1995, her financial position was, she argues, very much worse than the judge gave her credit for. She says that although the judge recognised that this was not a Crossley case (by which she means a short marriage and both parties wealthy, no children) this was a marriage of longer duration and there were children and she had in addition to her assets significant liability. She reiterates all the points that were made by her counsel at the hearing. The signing of the agreement under pressure, the bullying by solicitors and the pressure from her husband not to leave the house without, as she put it, a cheque from her.

    14. She remains convinced that her husband was not entirely frank in his disclosure in relation to the assets, in particular the pension policy but also his interest in certain shares which she contends she had a beneficial interest in herself. She reiterates that she considers that she has been badly advised and that the judge was wrong in her conclusion about the reasons for the non-implementation of the judgment. She says that the judge was particularly wrong about costs because this was a case where she was in significant need and the judge exercised her discretion in relation to costs incorrectly.

    15. Finally she has argued that the judge disregarded the fact that the agreement was in one sense conditional. It was, she says, conditional on being made an order of the court. As that never happened the judge was wrong to regard the agreement as in any sense binding.

    16. I am afraid to say that although I am prepared to grant an extension of time I am not prepared to grant permission to appeal. An appeal on the grounds put forward in the extensive grounds of appeal and as argued before me this morning would not have a realistic prospect of success for the following reasons.

    17. First of all the judge has made very clear findings of fact in relation to the various vitiating factors that are argued for not giving very significant weight to the agreement. There is no prospect of this court, which is a court of error, being prepared to reverse the findings which is in effect what Mrs Torrington asks it to do. That applies also to the judge's acceptance of the explanation for the failure to make the agreement an order of the court. The judge did so having heard the submissions of the parties and came to a conclusion by reference to the materials before her which it would not be proper for this court to interfere with.

    18. I do not accept Mrs Torrington's overarching submission that the judge did not have regard to section 25 and the overall fairness of the situation. She made that clear in paragraph 59 of her judgment. But, in my view, it is not realistic to suppose that after this passage of time the Court of Appeal would be prepared to come to any different conclusion from that which the judge arrived at. The parties had, on the findings which the judge made, agreed a financial resolution on which they have acted for more than two decades. It is unrealistic to suppose that this court would come to a different conclusion.

    19. Although I appreciate that this must come as a significant blow to Mrs Torrington, who considers that she has been unfairly dealt with, I do not think that any other decision is really open to me. For those reasons, I refuse permission to appeal.

Judgment, published: 12/12/2013

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Published: 12/12/2013

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