Delaney v Delaney [1990] EWCA Civ 14 (22 May 1990)

HTML VERSION OF JUDGMENT ( ____________________ Crown Copyright © Revised) LORD JUSTICE NOURSE : I will ask Mr Justice Ward to give the first judgment. MR JUSTICE WARD : With the leave of the judge this respondent husband in a suit for divorce appeals against the order of His Honour Judge Blackburn made on 21st November 1989 whereby the learned judge dismissed the husband's appeal from the order of the learned deputy Registrar that he pay periodical payments to three children of the family at the rate of £10 per week in respect of each child. The learned deputy Registrar made an order in the wife's favour of £0.05 per annum and there is no appeal in respect of that. The children of this family are a boy Kris born on 30th June 1978, so he is soon to be 12 years of age; Rachel was born on 19th March 1980, so she is ten; and Craig was born on 12th January 1985; he is five. They are the children of this petitioner and respondent who married on 7th January 1978 and separated nine years later in February 1987 at about the time of the grant of the decree nisi of divorce in the petitioner wife's favour. That decree was made absolute on 6th March 1989, but I shall for convenience continue to call them "husband" and "wife". The husband had been unemployed for some four and a half years when in October 1988 he found work, at first on a temporary or probationary basis, but he was taken on to the permanent staff in December of 1988. On 28th February 1989 the wife applied for periodical payments for herself and the three children. That came before the learned deputy Registrar on 8th September 1989 when he made the orders I have recited and that led to the appeal to the judge. The learned judge properly heard the matter de novo , read the affidavits, took oral evidence and, as I have stated, confirmed the Registrar's order. The wife's income was found to be £98.75 per week made up as follows: (1) From her comparatively new employment as a sales assistant she earned £50 a week basic with some possibilities for overtime which the learned judge quite rightly ignored. After payment of her national insurance contribution she was left with £48 a week net. (2) She continued the part-time employment she had held for some time in the local sports and social club where she worked three nights a week and earned £29.32 from that source. (3) She was in receipt of child benefit of £21.75 for the three children. She is, therefore, a hard working lady to whom all credit must be given. She does not shirk at all from her responsibilities for herself and for her family. It does not appear to have been drawn to the learned judge's attention that she was entitled as of right to a further benefit, being the single parent benefit currently of £5.60 per week. She was not making claims for nor in receipt of any other state benefit and gave evidence that she had not enquired into those matters. Nor was it explored before the learned judge, who was therefore not given the benefit of the help we have had today and for which I pay my tribute to Miss Wall, counsel for the wife, who very fairly feeds us this vital information, namely that having regard to the wife's earned income she is entitled to family credits of £45.35 per week. She will receive that amount on a basis that there is no order for periodical payments either in her favour or in favour of the children. If an order is made in respect of either her or the children, as I understand it, that benefit will be reduced by £0.70 for every pound which she receives up to that limit of £45.35. Considering therefore what this lady is entitled to, if one has regard to those state benefits, the arithmetic then is to this effect: from her income some £79.32, from her child benefit £21.75, from her single parent benefit £5.60, and there is family credit of £45.35, which adds up to a total of some few pence short of £152 per week. As against that, she expressed in her affidavit her weekly expenditure which totalled £112.70 per week. I draw attention to only some features of that expenditure. Her rent was £33 a week and £3 was paid off the arrears that had accumulated making £36 a week in all. Her food bills were modestly pitched at £30 a week for herself and her three children. Her mail order catalogue, which I assume related largely to buying clothing, was £12 a week. Because she has struggled, and one recognises how she must have struggled, she has not always been able to meet all her expenditure. The result is she has incurred certain penalties for non-payment of rates, water rates and the television licence, and the poor lady has certain fines to pay as a result of that misfortune, and those fines are included in those outgoings. The learned judge said this of her income and her need : "After paying her rent and rates, she has left £50,with which to feed and clothe herself and her three children. This patently is not enough", and quite clearly it is not. Her express need was for £71.70 in addition to that commitment for rent and rates, and that was modest, as was conceded, and rightly conceded, by counsel for the husband both in the court below and before us. The real issue, therefore, is the extent to which the husband can meet that need of this wife and this family. His position is that following the separation from his wife he has established a relationship with another lady whom he hopes soon to marry and with whom he hopes then to start a new family. For a while after the separation he lived with his father, but then he took a tenancy in the private sector of a one-bedroomed flat which was costing him £26 a week. The learned judge appears, as I understand his judgment, to accept that the flat with its one bedroom was not convenient for access to the children on rainy days, nor, I would add, is it convenient for the children for the purpose of staying access, and ordinarily one would hope and expect that a father would enjoy staying access, bearing in mind he has a boy rising 12, another boy of five, and his daughter in the middle, aged ten. Faced with life in that one-bedroomed flat and his hopes for the future, this husband and his girlfriend embarked on the purchase of alternative accommodation. It is not clear from the papers when that was first contemplated. They were in the process of purchasing the property at the time his first affidavit was sworn in May of 1989, which is after the wife's application made in February, and they had moved into the property by 26th May 1989. What they have done is this. They have availed themselves of those opportunities, which may be rare opportunities and are certainly beneficial opportunities, to buy a property in conjunction with a housing association. The basis of the arrangement is that the young couple acquire a one-half interest in the property and the other half is acquired by the association, who then let it to the couple. Consequently, they pay a mixture of mortgage repayments and rent. That opportunity presented itself in respect of a three-bedroomed semi-detached house, three and a half years old, clearly, in estate agents' parlance, a desirable residence, with a garden which makes it a suitable family home. The cost was £60,000 and the couple have borrowed £30,000 for their half share, for which their mortgage commitment, as set out in the evidence to the learned judge, was £67-84 per week, and their rent in respect of the half they did not own £12.72 per week, making a total outgoing of £80.56 per week. If that is shared between them, the cost of providing the roof over his head is £40.28 per week. The husband gave evidence that this was regarded by them to be a very reasonable price to be paid on a market which was then still rising, that a two-bedroomed property would have been inadequate for their needs once they had started a family, and that it would have been a waste of money having regard to the duplication of the costs of sale in the not too distant future as they saw it. The learned judge found that that property far exceeded the husband's needs, that he did not need a house of that size for access purposes, and that he had "deliberately taken on unnecessary and excessive obligations after he had an obligation to the children." The learned judge also observed that the couple ran a motor car. This was a Metro motor car, the lowest in the range, acquired by the girlfriend in August of 1988 - that is to say, before the husband found his employment and indeed before the wife made the application for periodical payments. It was financed by hire purchase and was used by the husband to take the girlfriend to work and then to look for work with the success I have recited. It is now used to convey both of them to work and his is a 12 mile journey. It is not wholly clear whether the learned judge made any critical finding of the couple for having undertaken that responsibility. He seems to say that the husband should limit his expenditure to £10 towards travel and that without the car the couple would be better off, and the implication of those remarks is a criticism of them. But it was not a criticism which Miss Wall, for the wife, felt able to sustain in this court, and it was here accepted that the car, being most modest of its kind, was essential to this couple for their working lives as well as for collecting the children on access. Miss Wall mounted some attack against the husband's expenditure of some El 2.92 per week on the hire purchase commitment he and the girlfriend took, and I assume took after these proceedings were well under way, to buy for themselves a refrigerator and some furniture to replace the chairs that had broken springs and had to be thrown away. Bearing in mind that the husband left the matrimonial home with the contents intact for the wife and children, he cannot be criticised in my judgment for wishing to equip himself with some modest furniture, and that outlay does not in my judgment justify the condemnation Miss Wall has given it. That apart, the major issue which counsel for the wife raises is whether or not the mortgage commitment could be justified. To that Mr Smith, for the husband, has two answers. Firstly, he says that of the total expenditure of £80.56 only one half of it should be regarded as the husband's liability - that is to say, some £40 per week, and he says that that cannot be regarded as an unreasonable amount to pay towards the cost of his home. Secondly, Mr Smith submits that the learned judge was not justified in his finding that the husband deliberately took on unnecessary and excessive obligations without regard to all the circumstances of the case. Mr Smith points out that there was no cross-examination of the husband to determine the extent to which other and cheaper accommodation was available. He points out the difficulties in obtaining local authority accommodation of that sort, bearing in mind that he is not at the moment married to the lady, is without children by her, and has merely an order for access to, but not care and control of, the children of his marriage. There was no evidence, he submitted, of the availability of housing association accommodation which justified the learned judge's finding that the respondent could rent a house from a housing association at a rent similar to that paid by the petitioner of £33 a week. In my judgment the approach of this court in this case must be, firstly, to have regard to the need of the wife and the children for proper support. Having assessed that need, the court should then consider the ability of the husband to meet it. Whilst this court deprecates any notion that a former husband and extant father may slough off the tight skin of familial responsibility and may slither into and lose himself in the greener grass on the other side, nonetheless this court has proclaimed and will proclaim that it looks to the realities of the real world in which we live, and that among the realities of life is that there is a life after divorce. The respondent husband is entitled to order his life in such a way as will hold in reasonable balance the responsibilities to his existing family which he carries into his new life, as well as his proper aspirations for that new future. In all life, for those who are divorced as well as for those who are not divorced, indulging one's whims or even one's reasonable desires must be held in check by the constraints imposed by limited resources and compelling obligations. But this husband's resources, even when one adds to them the contribution made by his girlfriend, are very limited indeed. He brings in £115 a week net and she brings in £97 a week net. Their joint income is £212 per week. Their expressed outgoings, as found by the judge, details of which I need not recite, were £179.39, and that took no account of food, clothing, entertainment, holidays, house repairs, car repairs, servicing, the television licence or the road fund tax. By allowing something for car repairs and the servicing of that motor car, its road fund tax, licence, and the television licence, one easily adds another £6 or £7 to the listed outgoings of £179. After meeting those expenses their joint income is then reduced to something in the region of £25 a week on which this man and his girlfriend have to feed and clothe themselves and maintain the first family. In my judgment this father was reasonably entitled to say that for the welfare of his children, their welfare being the court's first consideration under section 25 of the Matrimonial Causes Act 1973, he should have accommodation sufficient for proper access and so suitable to be able to offer them staying access. Two bedrooms may have been sufficient, but three bedrooms does not far exceed his need having regard to the fact that the wife herself lives in a three-bedroomed house. There is no evidence before the court to suggest that there was any housing association accommodation available to rent. The scheme undertaken is a beneficial one. There is force in the submission of Mr Smith that one simply does not know whether this scheme would have been available for the more modest purchase of a two-bedroomed house at a figure of, say, £50,000, all of which might then have had to be borrowed at greater expense than presently incurred. I find it difficult to say that this husband, in incurring these liabilities, was behaving in an extravagant fashion. That was the test applied in the case of Furniss v. Furniss [1982] 3 FLR 46. The approach in Barnes v. Barnes [1972] 1 WLR 1381 was to permit expenditure to a proper standard. The approach in Pres ton v. Preston was to look at need within the context of section 25 of the Matrimonial Causes Act in terms of what was reasonably required. So whether one judges this man by a standard of extravagant expenditure or of living to an improper standard or of behaving unreasonably, I do not find it possible to judge him to have gone beyond the limit of what is permissible. His share of £40.28 per week is not out of proportion to the wife's rental of £33 per week. Consequently, I find that his expenditure as set out is reasonably incurred by him and I find, as a result, that the £25 a week or thereabouts left for himself and the girlfriend to feed and clothe themselves is barely adequate to sustain any reasonable way of life. In my judgment, therefore, this father would find it extremely difficult, if not impossible, to meet the obligation he has and which ordinarily he should honour to maintain his children. In paying him due credit, I observe that he has paid £10 a week to the children, being the most that he felt he could afford. This court is entitled, as the authority of Stockford v. Stockford [1982] FLR 58 makes clear, to approach the case upon a basis that if, having regard to the reasonable financial commitments undertaken by the husband with due regard to the contribution properly made by the lady with whom he lives, there is insufficient left properly and fully to maintain the former wife and children, then the court may have regard to the fact that in proper cases social security benefits are available to the wife and children of the marriage; that having such regard, the court is enabled to avoid making orders which would be financially crippling to the husband. Benefits are available to this family of which the learned judge was not made aware, and I have come to the conclusion that the husband cannot reasonably be expected to contribute at all to the maintenance of his previous family without financially crippling himself. In my judgment it is far better that the spirit of effecting a clean break and starting with a fresh slate be implemented in this case, not by dismissing the claims of the wife and the children, but by acknowledging that now and, it is likely, in the foreseeable future he will not be able to honour the obligations he has recognised towards his children, and in my judgment the appeal should be allowed and I would substitute a nominal order to each of the children for the order of £10 which each of them is currently ordered to receive. LORD JUSTICE NOURSE : I agree that this appeal should be allowed for the reasons which have been given by Mr Justice Ward. I wish to emphasise the three points, all of them made by Mr Smith on behalf of the husband, which have most influenced me in coming to the conclusion that we should take the unusual step of interfering with the learned judge's order in this case. First, the judge said that the husband could himself rent a house from a housing association, like the wife who rents one at £33 per week. That is something which was not explored in evidence. There was no evidence either that the husband could get a suitable house at such a rent or that, if he did, it would meet the reasonable needs of himself and his girl friend or indeed the needs of the children when they come to stay with him on access visits. Secondly, the judge found that the husband had deliberately taken on unnecessary and excessive obligations after he had an obligation to the children. It was on that basis that the judge thought that the husband could afford £30 per week out of his income, because if he had not taken on those obligations he would have been able to afford it. For my part I do not think, with respect to the learned judge, that that finding was justified. It could only have been directed to the amount which the husband is having to pay in respect of the new house now occupied by himself and his girl friend. His half share of the rent and mortgage repayments in respect of that property is a little over £40. That is not much more than the £33 which is being paid by the wife, and it is to be noted that before then the husband was paying £26 a week for a one-bedroomed flat, a form of accommodation which was quite unsuitable for himself and his girl friend and inadequate for the purposes of the access visits of the children. I fully appreciate that the learned judge heard and saw the witnesses, which we have not done. But I do not think that the £40 a week can be described as either unnecessary or excessive, and the other obligations which have followed from it in respect of the household expenses are neither unnecessary nor excessive on their own. Thirdly, although the husband has managed to pay £10 a week in respect of the children's maintenance since the £30 order was made, it is to my mind quite clear that he cannot reasonably afford it. As the figures which my Lord has given show, against the joint income of the husband and his girl friend of £212 there are reasonable outgoings to be set of something of the order of £186 a week, leaving little more than £25 for food, clothing and everything else. It is indeed to the husband's credit that he has done his best during the interim period. But I am in no doubt that he cannot afford even £10 a week, and I therefore agree with the proposal that he should be ordered to pay a nominal amount only. The decision of the court is that we allow the appeal and substitute an order of £0.05 per annum per child for the order made by the learned judge. Order: Appeal allowed; an order of £0.05 per annum per child substituted for the order made by the judge in the court below; legal aid taxation of both parties' costs. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII