Family Law Hub

B v B [2002] EWHC 3106 (Fam)

  • Neutral Citation Number: [2002] EWHC 3106 (Fam)

    FD 01 D00561

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    11th July 2002

    B e f o r e :

    MR. JUSTICE MUNBY

    (In Private)

    ____________________

    B

    Applicant

    - and -

    B

    Respondent

    ____________________

    Transcribed by BEVERLEY F. NUNNERY & CO

    Official Shorthand Writers and Tape Transcribers

    Quality House, Quality Court, Chancery Lane, London WC2A 1HP

    Tel: 020 7831 5627 Fax: 020 7831 7737

    ____________________

    MISS A. HUSSEY appeared on behalf of the Applicant.

    MR. TODD appeared on behalf of the Respondent.

    ____________________

    HTML VERSION OF JUDGMENT

    ____________________

    Crown Copyright (c)

    MR. JUSTICE MUNBY: This is a husband's appeal against an award of ancillary relief made by Deputy District Judge Wilbourne on 19th April 2002. Her decision was set out in a reserved judgment running to almost 11 single spaced pages and setting out the history of the marriage and her findings in considerable detail. I do not propose to take up time rehearsing matters which can be found in the deputy district judge's judgment.

    The fact is that this was a very short marriage indeed. The parties married on 22nd January and separated on 13th November 2000. What has, in very large measure, generated the litigation and the appeal which is before me today is the fact that their son, Will, was born on 26th May 2000. That, as the deputy district judge correctly observed, changes the position greatly.

    Put shortly, the order by the deputy district judge awarded the wife a lump sum of £175,000 and maintenance of £1,650 per calendar month, of which £780 was agreed as being Will's and £870 was for the wife.

    That lump sum was assessed by the deputy district judge against the background of a finding contained in para.33 of her judgment that the wife "needs" £220,000 to re-house herself and Will.

    The husband appeals, contending that the lump sum should be reduced to £80,000, that the periodical payments for the wife should be reduced to £370, limited in time, and that the lump sum should be subject to a 30% Mesher order. So much for the broad shape of the appeal before me.

    Four issues and four issues only are, in the event, pursued by Miss Hussey on behalf of the husband. First, that the deputy district judge erred in assessing the correct quantum of the wife's periodical payments. It is common ground between Miss Hussey and Mr. Todd, who appears on behalf of the wife, that this appeal falls to be considered in accordance with the principles laid down by Thorpe LJ in Cordell v. Cordell [2002] 1 FLR 207, and by Lord Hoffmann in Piglowska v. Piglowski [1999] 1 WLR 1360. That is to say, as the Lord Justice put it in para.32 of his judgment in Cordell, that I can interfere with the decision of the deputy district judge only if it is demonstrated that there has been some procedural irregularity (no such irregularity is asserted in the present case) or that in conducting the necessary balancing exercise the deputy district judge has taken into account matters which were irrelevant, or ignored matters which were relevant, or has otherwise arrived at a conclusion that is plainly wrong. That is, of course, a reference to the test laid down in the well-known case of G v. G (Minors) (Custody Appeal) [1985] 1 WLR 647.

    That is the nature, and as will be appreciated, the limited nature, of my function in determining this appeal. Furthermore, in determining whether or not the deputy district judge has indeed been plainly wrong in any part of her decision-making process, I take into account and apply the principles to be found set out in the speech of Lord Hoffmann in Piglowska at pp.1373a-1373e.

    I do not propose to cite the whole of that passage, all of which I have very much borne in mind and propose to apply. I would, however, in particular draw attention to the observation of Lord Hoffmann at p.1372g that reasons given by the deputy district judge

    "... should be read on the assumption that unless [she] has demonstrated the contrary, the judge knew how [she] should perform [her] functions and which matters she should take into account. This is particularly true when the matters in question so well known as those specified in S.25(2). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that [she] misdirected herself."

    I bear also in mind that, as Lord Hoffmann observed on p.1373, cases of this sort inevitably involve value judgments on which reasonable people may differ, and that therefore, inevitably, there will be some degree of diversity in the outcome of cases such as this.

    It is by the application of those principles that I turn to consider the first ground of appeal. The deputy district judge's reasons are set out, so far as concerns this part of the case, in para.13 of her judgment. Having found and noted that the wife's original claimed income need was "far too high" the deputy district judge recorded that the wife's claim as promoted by the time of the hearing was for £1,650 per month divided in the manner in which, in the event, the deputy district judge made her order.

    The deputy district judge found "I do not consider that the wife can manage on less than £1,650 per month with a young baby." I can see no possible basis of challenge to that conclusion. It is apparent that the deputy district judge had very much in mind that the wife's original claim had been for an unrealistically high figure and, no doubt in those circumstances, she approached the wife's revised and reduced claim with an appropriate degree of scepticism.

    On the materials before her, the deputy district judge was, in my judgment, fully justified in coming to the conclusion which I have just quoted. It is a conclusion, moreover, which seems to me to accord with any common sense view of the likely costs of a mother, aged as this mother is (approximately 30) having to look after not merely herself but also a young baby.

    Having therefore, as it seems to me, unimpeachably determined the amount which the wife needed by way of maintenance, the deputy district judge then appropriately and explicitly turned to consider whether the husband could afford to pay that sum to the wife in the light, amongst other things, of his prior commitment to a previous wife.

    The husband, as appears from the deputy district judge's judgment, was, at the relevant time, in receipt of a basic salary amounting to £5,582 per month take home. In addition, he was in principle entitled to bonuses. He had, in 12 out of the 15 years in which he had been employed by his current employers, received bonuses (some of them very substantial indeed) although in the most recent years, partly no doubt as a result of conditions in the market, those bonuses had not been paid. Nonetheless, the effect of the deputy district judge's order was that out of the basic monthly salary take home of £5,582 the husband was, and continues for the moment, under an obligation to pay his previous wife a sum which, as from December 2002, will reduce to £600 per month. That has the consequence that if there is to be paid by him, in addition to that £600, the £1,650 which the deputy district judge took the view was the need of this wife and his son, he would be left with something of the order of £3,300 for his own maintenance and for the maintenance and support of his new partner and her children.

    In those circumstances, and assuming in favour of the husband that his income was no more than his basic salary, the deputy district judge concluded that he was able to afford to pay this wife the sum which she had determined this wife needed. That conclusion seems to me, in the circumstances, to be unassailable. It was, of course, a conclusion which assumed in favour of the husband that his income would remain indefinitely no more than his basic salary, and that he would continue indefinitely not to receive any bonuses at all. That seems to me to be a very favourable assumption in this context. Although I am very ready to accept that it is perhaps unlikely that in future his bonuses will ever return to their historic very high levels, it seems to me in all probability somewhat unlikely that he will not, sooner or later, receive at least some bonuses.

    Be that as it may, it seems to me that the deputy district judge was fully entitled to conclude, as she did, that the needs of this wife and the child amounted to £1,650 per month and that that was something which this husband was certainly able to afford.

    I can detect no error of reasoning or approach in the deputy district judge's decision on this aspect of the matter.

    She seems to have taken into account all relevant considerations. I am unable to detect her having taken into account any irrelevant consideration. It cannot possibly be said, it seems to me, that her decision was plainly wrong. Far from it.

    I turn to the second ground of appeal, which has to be assessed according to precisely the same principles. The deputy district judge was invited, as I am invited, to impose a time limit upon those periodical payments such that, so far as concerns the periodical payments to the wife, they should continue at the assessed level only until 26th May 2005, being Will's fifth birthday, and thereafter should continue at a purely nominal level.

    The deputy district judge did not agree and said that it would be wrong in principle to make a term order in this case.

    In one sense, the issue may appear to be a comparatively trivial one involving, as Miss Hussey correctly put it, little more than the question of which party has the onus of bringing the matter back to court in future. But the point is nonetheless an important one, although I have come to the conclusion that the deputy district judge's decision on this point, as on the previous point, is unassailable.

    The relevant principles are to be found set out in the judgment of Ward LJ in C v. C (Financial Relief Short Marriage) [1997] 2 FLR 26 at pp.42c-46e. I do not propose to set out, or even to attempt to summarise, those principles. They are familiar and well-known. I emphasise merely this, that as the Lord Justice pointed out at p.45h in the fifth of the eight numbered paragraphs in which he summarised what he described as the "proper approach", he emphasised that in the final analysis the decision had, of necessity, to depend on all the circumstances of the case, including the welfare of any minor child and the S.25 checklist. He commented (that case being, as the present case, a very short marriage indeed)

    "It is, however, not appropriate simply to say 'This is a short marriage, therefore a term must be imposed'."

    Although, in the final analysis, the decision must depend upon all the circumstances of the case, the court is required, by S.25(a)(ii) particularly to consider whether it would be appropriate to require payment to be made only 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.

    In other words, as the Lord Justice summarised it at p.45g in his numbered paragraph 4: is it appropriate to order periodical payments only for such a term as, in the opinion of the court, would be sufficient to enable the payee to adjust without undue hardship to the termination of financial dependence on the paying party?

    So much for the basic principles. The present case is a good example of the type of case in which it is important to have regard to the seventh and eighth of the Lord Justice's numbered principles. At p.46c in numbered para.7 Ward LJ said:

    "The court cannot form its opinion that the term is appropriate without evidence to support its conclusion. Facts supported by evidence must, therefore, justify a reasonable expectation that the payee can and will become self-sufficient. Gazing into the crystal ball does not give rise to such a reasonable expectation. Hope, with or without pious exhortations to end dependency, is not enough."

    Finally, at p.46e, towards the end of numbered para.8 he said:

    "If there is uncertainty about the appropriate length of the term the proper course is to impose no term, but leave the payer to seek the variation and if necessary go through the same exercise, this time pursuant to S.31(7)(a)."

    I can find nothing in the judgment of the deputy district judge to suggest that she approached the issue in this case otherwise than in accordance with those principles. She recorded, in para.6 of her judgment, the wife as saying that she wanted to care for Will herself and would not want to return to work until he is 7. That, as the deputy district judge commented, meant that the wife was seeking five years at least of periodical payments for herself until she was able to re-enter the marketplace. The deputy district judge continued:

    "I consider her plans to be sensible and realistic and I hope that she will return to the workplace then, at least on a part-time basis. Having said that, it would be wrong in principle to make a term order in this case.

    It would not be right to impose an arbitrary cut off date for either the end of spousal periodical payments, or even a date by which they should be reduced to a nominal order. If I were to adopt such a course, it would leave the wife with the obligation to re-issue proceedings and, in the light of the husband's attitude in this family litigation, I think she would be faced with another barrage of observations and enquiry agents."

    Those findings amount, in my judgment, to this. The deputy district judge, wholly unsurprisingly in a case of this sort, found herself unable to predict with any sensible degree of certainty precisely when it was that it would be appropriate to put an end to the maintenance obligation. As the deputy district judge herself said, as it seems to me entirely appropriately, any cut off date she might impose would be arbitrary. On that ground alone, as it seems to me, and entirely consistently with the principles laid down by Ward LJ, the deputy district judge was fully entitled to come to the conclusion she did.

    But if that alone were not enough, the final matter to which she referred seems to me to put the point beyond sensible argument. Without going into the history of the matter in any great detail, this was a case in which the husband had contended before the deputy district judge that he had been entrapped in respect of Will's conception. This was a case which was deployed with considerable forensic endeavour and which the deputy district judge had no hesitation in totally rejecting.

    Also before the deputy district judge, he had deployed, at very considerable length and at no doubt considerable expense, a case that the wife was co-habiting with another man. His forensic pursuit of that allegation, which was again dismissed by the deputy district judge, involved him keeping watch on the wife and the man she admits was her boyfriend, employing enquiry agents for that purpose, and indeed making video recordings of events at the boyfriend's house.

    Those were matters which, in my judgment, the deputy district judge was fully entitled to take into account as relevant circumstances in deciding whether or not in all the circumstances of the case to make a term order. If it once be accepted that the deputy district judge was correct in her findings that there had been no entrapment and that there was no co-habitation, as also in her findings as to the way in which the husband had sought forensically to pursue those two groundless allegations - and in my judgment the deputy district judge's findings on all those matters are unassailable - then it seems to me that she was entitled to say that those were matters going to the husband's behaviour in the conduct of the litigation which could properly, and should, be taken into account in assessing whether or not to make a term order; in particular, whether or not, by the making of a term order, to throw upon this wife the burden in less than three years' time of re-commencing proceedings.

    The deputy district judge was, in my judgment, fully entitled to come to the conclusion she did on this issue. I can detect no error of approach or principle. Her decision appears to accord entirely with the relevant principles laid down in the authority which I have mentioned. It is impossible, in my judgment, to say that her decision was plainly wrong.

    I turn to the third question, which is as to the correct quantum of the lump sum to be paid to the wife. The focus of Miss Hussey's attack on the deputy district judge's decision in this respect is on the finding that "the wife needs £220,000 to re-house".

    The husband accepted, and continues to accept, that the wife has a need to be housed in accommodation suitable not merely for herself but also for Will. The deputy district judge found that the wife needs a two-bedroomed house or flat. There was no challenge to that finding.

    Miss Hussey's complaint, in essence, is that if one has regard to the significant mass of estate agents' particulars which were produced (some by the husband and some by the wife) the figure of £220,000 identified by the deputy district judge as being what the wife needs to re-house herself was a sum very significantly in excess of the kind of sum which, according to the husband, was required for a suitable and appropriate two bedroomed house or flat.

    In particular, it is said that amongst the particulars which were provided and which were before the deputy district judge, were two bedroomed cottages or flats in the Bromley area at an asking price of £152,000. That is the core of Miss Hussey's complaint.

    She also complains, and this goes to the articulation by the deputy district judge of her reasoning rather than to the decision itself, that the deputy district judge has failed adequately to explain in her reserved judgment why it is, in the face of those particulars which I have mentioned, that she came to a finding that the wife needs £220,000 to re-house herself.

    In addition, the point is made that having regard to the overall finances of the parties and to the available capital assets, an award to the wife of a sum of £175,000 is excessive.

    I reject any complaint that the deputy district judge has not sufficiently articulated her process of reasoning. This is, as it seems to me, a good example of the kind of criticism which Lord Hoffmann was at pains to warn us against in Piglowska.

    Of course, as Miss Hussey pressed upon me, any litigant (and not least, the paying litigant) is entitled to know why it is that a judge has decided as she has. But there is a limit to the detail which is required to be given. It is not, I think, difficult to discern the underlying process of the deputy district judge's reasoning.

    She had in mind, and I have no doubt had well in mind, the particulars showing that two bedroomed flats could be found for £152,000. But she plainly took the view, and was entitled to take the view, that the wife's housing needs went beyond merely buying the cheapest possible available property, satisfying the minimal requirement of a two bedroom house or flat.

    It is apparent from the particulars I have seen that the figure which the deputy district judge selected is not at the very top end of the spectrum of available properties. As the deputy district judge said in para.33 of her judgment: "It will not be the most desirable property in the Bromley area."

    But, on the other hand, the deputy district judge came to the conclusion, and in all the circumstances in my judgment was entitled to come to the conclusion, that the wife and the husband's son should not be compelled to live in the cheapest possible property that was available.

    The deputy district judge made explicitly clear that in this context she was taking into account the shortness of the marriage, and a number of other factors to which she drew attention. The deputy district judge had the advantage, which I have not had, of hearing evidence from the parties. In particular she heard evidence from the wife, explaining why, in the wife's view, some of the properties being proposed by the husband were not suitable or satisfactory.

    Not merely have I been deprived of the opportunity which the deputy district judge had of hearing the wife give that evidence, but I have not even been given the opportunity of reading a transcript of the evidence. All I have are the notes, no doubt adequate so far as they go, of the evidence prepared by Mr. Todd.

    They are inevitably (and this is no criticism of Mr. Todd) but a pale and wholly inadequate substitute for the advantage which the deputy district judge had of being immersed in this case for some three days, of hearing both parties give evidence, and in particular of hearing the evidence given by the wife in relation to her views as to what was an appropriate property, and her views as to the desirability or undesirability of particular properties.

    In other words, the deputy district judge was in a position which I cannot be in, to come to that essential value judgment which, on this part as on other parts of the case, was of the essence of her decision.

    It may be that in deciding that in all the circumstances this wife needed £220,000 to re-house herself and her son, the deputy district judge was towards the top end, even, it may be, very close to the top end of an acceptable bracket. But my function is limited.

    Absent a misdirection in law (and so far as concerns this part of her finding I can detect none); absent misunderstanding of the facts or the taking into account of irrelevant facts, or the failure to take into account relevant facts, I can interfere with the deputy district judge's decision only if she was plainly wrong. That is to say (quoting the classic words of Asquith LJ in Bellendon v. Saddlethwaite in 1948) if her decision exceeds the generous ambit within which reasonable disagreement is possible. Different minds (as Lord Hoffmann observed in Piglowska) can come to different value judgments in such matters as this.

    There is no process of legal analysis or calculation which enables one, in a case of this sort, to say that the wife's housing needs are £220,000 as opposed to £225,000 or £210,000. The process simply cannot be that specific. Inevitably, there will be a spectrum, a band within which different judicial minds can properly assess the wife's housing needs.

    It may very well be that if the deputy district judge had awarded a lesser figure, even a significantly lesser figure, a challenge to that decision by the wife would have failed. That does not mean, however, that the husband's challenge to this decision succeeds.

    Doing the best I can to evaluate all the material, and subject to all the limitations that I, in comparison to the deputy district judge, labour under, it is impossible for Miss Hussey to succeed in the assertion that the deputy district judge was plainly wrong in finding, as she did, that this wife in these circumstances needs £220,000 to re-house herself.

    That figure may, as I say, have been very close towards the top end of an acceptable bracket. It is, in my judgment however, within the bracket and as such cannot be said to be plainly wrong.

    Given that for these reasons the deputy district judge's assessment of the wife's housing needs cannot be upset, is there any other basis for challenging her decision that the appropriate lump sum to be awarded was £175,000? The short answer to that, in my judgment, is that there is not. It was for the deputy district judge, having regard to all the circumstances of the case, in particular directing herself as meticulously as she did in para.2 of her judgment by reference to the relevant S.25 criteria, to come to a value judgment as to the size of the lump sum to be awarded to the wife.

    That there should be a lump sum was not something that was challenged or could sensibly have been challenged by the husband. The issue, and no doubt a difficult issue for the deputy district judge to determine, was the amount of that lump sum.

    Bearing in mind her finding that the wife's re-housing needs amounted to the sum of £220,000, taking account of the fact that the wife would be able to contribute towards that the net equity in the flat which had previously been her property, amounting to £56,500, having regard to the wife's modest mortgage ability, having regard to the value of the remaining capital assets which, on this basis, would remain under the control of and, if not immediately, in due course be available to the husband, and bearing in mind in particular his earning abilities, I can see no basis upon which it can sensibly be said that the deputy district judge was plainly wrong in awarding the wife, as she did, a lump sum of £175,000.

    That, as it seems to me, is the only possible basis for challenge to the award, there being no basis (as it seems to me) for suggesting any misunderstanding of the law, misdirection or error of approach.

    The award may be, as I have said, verging towards the top end of the spectrum, generous to the wife. But it cannot, in my judgment, be categorised as plainly wrong. It was, even if towards the top end of the spectrum, within the band of what, in my judgment, is reasonable.

    I come to the fourth and last, and it seems to me, by far the most difficult point on this appeal. That is to say whether or not there should have been a Mesher order. It is common ground before me that if a Mesher order is appropriate at all, it should be in such a form as will enable the husband to receive a percentage - the husband says 30%, the wife says 15% - upon the happening of one or other of three events: the wife's remarriage, Will attaining the age of 18, or, if later, Will ceasing tertiary education.

    The real dispute is as to whether or not there should be a Mesher order. I put the point that way for this reason. The deputy district judge, in para.34 of her judgment, concluded that a Mesher order was not appropriate, as she put it, for two reasons. Mr. Todd accepts that the second of the two reasons given by the deputy district judge is unsustainable.

    As expressed by the deputy district judge, that second reason was:

    "the wife needs to have the security of knowing that she has a permanent roof over her head and that of Will without always fearing that the husband is keeping her under observation to see whether he can apply to have his charge realised this year or the next. I find that this is a real risk in this case given the husband's actions in this case of keeping the wife and her friends under such close scrutiny, an exercise in which he has even involved his friends."

    Albeit accepting, as I do, the deputy district judge's findings as to the husband's actions in the past, the flaw in that reasoning is that it can have no operation in a context where the only suggested triggers are such obviously ascertainable facts as the wife's remarriage, Will's 18th birthday or his ceasing education. The deputy district judge's point would be, I accept, a very powerful one were it to be suggested that cohabitation should be a Mesher trigger. That, as the deputy district judge recognised, was not the case because, as she herself put it in the same paragraph of her judgment:

    "The only trigger I would be prepared to contemplate would be when Will attains 18 or ceases full-time education, whichever is the later."

    Accordingly, as it seems to me, of the two reasons identified by the deputy district judge as the basis of her decision on this crucial issue, the second reason is, with all respect to her, illogical and carries within itself the seeds of its own destruction. Accordingly, Mr. Todd accepts that in this one respect the deputy district judge misdirected herself. She has erred in such a way as to make her reasoning plainly wrong. He accepts the consequence that on this one issue it is for me to exercise my discretion and to come to a decision afresh.

    As Miss Hussey and Mr. Todd both accept, inevitably that is on the basis of the facts as found by the deputy district judge. (I should perhaps at this point make explicit what is probably apparent: that there has been no suggestion that I should in this case hear any fresh evidence and I have not done so).

    Miss Hussey puts at the forefront of her submissions in relation to the Mesher point the principles stated, as it happens, in each case by Thorpe LJ, first in Dawney-Kingdom v. Dawney-Kingdom [2000] 2 FLR 855 and, some six months later, in Elliott v. Elliott [2001] 1 FCR 477. Perhaps not surprisingly, although the first of those decisions appears not to have been referred to during the course of argument in the second, the Lord Justice's approach as set out in para.16 of his judgment in the first case, accords very closely with his approach to be found in paras.5, 6 and 7 of his judgment in the second case.

    He drew attention, in para.5 of his judgment in the second case, to the important principle (in this context as equally applicable in a modest money case as in a big money case, albeit derived from White v. White) that there is, as is now recognised, a need to avoid gender discrimination and consequentially a need to treat husband and wife on the basis of equality, if not as a starting point, at least as a cross check at the end of the process of determination.

    In each case he indicated by way of approach that if a Mesher order was not to be made, then it was, as it were, for those so contending to explain why. More particularly, it is for the judge to provide an explanation or rationalisation of a decision not to make a Mesher order. In each case, he drew attention in particular to the need, if this was to be the effect of not making a Mesher order, to provide an explanation as to why (as he put it in Dawney-Kingdom at para.16)

    "The husband was stripped of his acquired capital beyond the point that enabled the wife as the primary carer to discharge her responsibility for the three children until they achieved independence."

    Or, as he put it in Elliott at para.7: why it would be appropriate to

    "ignore the husband's reasonable entitlement to deploy capital to house himself at the end of a long marriage during which he has worked hard."

    Miss Hussey, in other words, says that the starting point, particularly in the case of a very short marriage as here, is that there should be a Mesher order, and that it is in a very real sense for the wife to demonstrate why there should not be a Mesher order.

    I put it that way for this reason. Miss Hussey submits, correctly as it seems to me, that but for Will's birth there would be no question, in the case of this very short marriage indeed, of the wife having any claim against the husband for any form of capital relief at all. That must be right. The only thing which, in the case of this very short marriage, justifies the making of any capital division for this wife is, says Miss Hussey and I agree, the fact that the wife needs capital with which to acquire the property which, as the primary carer, she has to have if she is to be enabled to discharge her responsibility for Will until he achieves his independence.

    So, says Miss Hussey, the present case falls precisely within the principle identified in the words I have just paraphrased from the judgment of Thorpe LJ in Dawney-Kingdom v. Dawney-Kingdom.

    Mr. Todd's response to that is this. True it is that this was a very short marriage indeed. True it is that the wife's contributions to the marriage, down to the point at which the marriage ended in divorce, may have been modest. But, he says, the wife's major contribution to this marriage (and he says it is a very major contribution indeed) is the fact that she, for the next 16 years or so (and I put it that way because Will is now approximately two years old), will have the very considerable burden of looking after him and bringing him up. That, says Mr. Todd and I agree, is a very substantial contribution, albeit a contribution in the future, which has to be brought into the equation.

    Furthermore, says Mr. Todd, in the nature of things the performance by the wife of her obligations in this respect, the discharging by her of her responsibility for Will's upbringing, will inevitably impact adversely upon her earning capacity. Not merely her capacity to earn an income during that part of her life, during Will's early years when she will not be able to work at all; not merely during that part of Will's later childhood during which she will be able to work part-time perhaps on an increasing scale. But even after Will is off her hands, her continuing earning capacity, even when she is free to work full-time, will be significantly reduced, he says, by the fact that for a number of years she will have been out of the job market. She will therefore find herself, when Will is 18, in her mid-40s, even if free to work full-time, not able to get the kind of job which will generate the kind of income which by then she could realistically have hoped to obtain had she not had the interruption of looking after Will.

    Moreover, says Mr. Todd, that impacts not merely upon her earning ability in the sense of her income, it impacts seriously (and he suggests decisively) upon her ability, if her return to full-time employment is as delayed as it is likely to be, ever to generate capital, whether by way of acquiring a property on a mortgage, or more particularly by way of building up a pension fund.

    Mr. Todd says that is not mere speculation based upon a common sense view of life, although for what it is worth it seems to me that it is indeed a common sense view of the future realities. That is something he says securely founded upon a finding by the deputy district judge, who, in para.6 of her judgment, having set out the fact that until 1999 the wife had been working for Bankers Trust earning £40,000 per annum gross, and had then worked part-time for Citibank, said:

    "Her future job prospects are much less bright than they used to be as she will always have to put the interests of Will before her career plans."

    That is a finding which, as it seems to me, it was plainly open to the deputy district judge to arrive at in the light of all the materials before her and all the evidence she had heard.

    On the other hand, we have the husband who, in the circumstances set out by the deputy district judge in her judgment and some of which I have already referred to in my judgment, is, says Mr. Todd, in a position to recreate within a comparatively short period the capital which he will lose if I uphold the deputy district judge's order. Mr. Todd says that is capital which the husband will be able to generate from his earnings, in part because of the level of his earnings, more particularly once he resumes receipt of bonuses, even if not bonuses as large as those he has hitherto been accustomed to enjoy, but also because of various investment and stock option opportunities which are open to him because of the nature of his employment.

    Mr. Todd says that on top of that is the fact that the husband already has significant pension funds which are left unaffected by the deputy district judge's order, and which are likely (if not immediately but in the future) themselves to be enhanced.

    Mr. Todd says one has only to look at the deputy district judge's findings of fact to see that the reality is that by the time when the Mesher order which I am invited to make would come into effect, the wife's prospects of having been able to generate any additional capital are exiguous. On the other hand, well before (and Mr. Todd says on one view long before) that date arrives the husband will, in the ways I have indicated, be able to generate very substantial capital.

    Mr. Todd's argument is elaborated in para.12 of the written submissions which he put before the deputy district judge. He concedes before me, as he did before the deputy district judge, that it is entirely within the discretion of the court to make a Mesher order. As I have indicated, he accepts that the learned deputy district judge misdirected herself in this respect. I have the same discretion as she did.

    However, he argues that it would be inappropriate in this case to make a Mesher order. He suggests that a Mesher charge is inconsistent with a clean break and does not take into account what he describes as the wife's severely curtailed earning capacity both now and in the future. He submits, as I have indicated, that the husband will be quickly able to rebuild his capital well beyond that of the wife - for example, by means of bonuses when market conditions improved.

    He points to the fact that the husband has spent considerable amounts of his capital in the last year. He points to the fact that the husband already has significant pension provisions. He points to the fact that the husband will, as he would have it, have a significant mortgage capacity, in particular once his obligation to his previous wife reduces at the end of this year, with the consequence (says Mr. Todd) that the husband will be able to house himself within the not too distant future in a considerably higher standard of property than the wife, even in the light of the deputy district judge's judgment.

    Finally, he makes the point, taking figures for this purpose at current values, that if I were to make a Mesher order on the terms proposed, that is to say 30% of the lump sum in question, the amount which would be repayable to the husband would be of the order of £50,000 or thereabouts. That is an amount which he submits is largely irrelevant to someone in the husband's position with his earning capacity - a sum of money, the advantage of which to the husband (were he to receive it), is out of all proportion to the disadvantage which the wife will suffer if, in order to pay the husband that sum of money, she is compelled to sell her house.

    Not all of these reasons suggested by Mr. Todd carry, in my judgment, the same weight and significance. One of them in particular seems to me a matter not relevantly to be taken into account at all for this purpose; that is to say the suggestion that the husband has been spending capital at a significant level during the proceedings. As Miss Hussey points out, the deputy district judge herself found (see para.32 of her judgment) that it would not be right to make any adverse finding against the husband in relation to alleged dissipation or disposal of his assets. Accordingly, I leave that factor out of account altogether.

    Nonetheless, it seems to me that essentially for the reasons given by Mr. Todd, this is a case in which it would not be appropriate to make a Mesher order. At the end of the day, and recognising entirely as I do, the important starting point suggested by Thorpe LJ in the two cases I have mentioned; recognising that there is, in modern conditions, no room for inequality as between the sexes; and recognising that at the end of the day my duty is to make an order which is fair (in the sense in which that word was used by Lord Nicholls of Birkenhead in White v. White) I have concluded, as did the deputy district judge albeit for different reasons, that this is not a case for a Mesher order.

    I do so having regard to all the circumstances of the case, including in particular but not limited to those which I have specifically mentioned.

    At the end of the day, it seems to me that there are two factors in particular which point strongly to the conclusion that there should not be a Mesher order. The first is that the wife's realistic prospects of being able to generate capital of her own between now and the date when one of the Mesher triggers would operate is small, whereas there is every reason to believe with a significant degree of confidence that well before (and it may very well be long before) a Mesher trigger operates, this husband will be able to generate a substantial degree of capital for himself over and above that capital which, in any event, remains with him notwithstanding the deputy district judge's order.

    That inequality of outcome, as it seems to me it will be if a Mesher order is made, is an outcome brought about by the fact that this wife will have to devote the best part of those years of her working life which would otherwise enable her to generate capital and earn at a higher rate in later life, to the job of bringing up Will. That is, albeit in the future, a major, a very substantial, contribution which she brings to this marriage. That is a contribution which, as it seems to me, will not fairly be recognised and reflected in the award which is made if that award is subject to a Mesher charge.

    The other point, as I have already mentioned, is that as it seems to me, the advantage in financial terms which will accrue to this husband were there to be a Mesher charge, would confer on him a benefit which, in comparison with his other likely resources, is comparatively modest. Whereas, on the other hand, the financial burden that will be suffered by the wife if there is a Mesher order requiring her to sell the house in which she and Will have lived at one of the suggested trigger points, will throw upon her a financial burden much more significant in terms of her economy than the corresponding financial advantage will have upon the husband's domestic economy.

    That, again, as it seems to me, would produce an outcome that is unfair rather than fair. It would be an outcome that does not reflect the contribution which she has made and will continue to make.

    In my judgment, for those reasons, it would not in this case be appropriate to make a Mesher order. I make clear, lest there be any misunderstanding on the point, that in coming to that decision I have sought faithfully to apply the principles referred to in the various cases which I have mentioned. I see no inconsistency whatever between the way in which I have sought to apply those principles to the facts of this case and the way in which in those cases, in particular in the cases of Dawney-Kingdom and Elliott, the same principles were applied in different circumstances to produce a different outcome.

    Accordingly, and for the reasons I have given, I dismiss the husband's appeal. I do so on the basis that in relation to the first three of the four grounds which have been pursued in front of me, despite Miss Hussey's arguments, the husband has wholly failed to persuade me that there is any error of approach to be detected in the reasoning of the deputy district judge. Nor is there any basis for saying that her decision was plainly wrong.

    I do so in relation to the fourth and final ground of appeal on the basis that although, as I have said, the deputy district judge did misdirect herself in circumstances where it becomes my duty to exercise my discretion afresh, I have, in the exercise of my discretion albeit for different reasons from those identified by the deputy district judge, come to what is in fact the same conclusion. Accordingly, Mr. Todd, I dismiss this appeal.


Judgment, published: 11/07/2002

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Published: 11/07/2002

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