BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barnes v Barnes [1972] EWCA Civ 2 (28 July 1972)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1972/2.html
Cite as: [1972] 1 WLR 1381, [1972] 3 All ER 872, [1972] WLR 1381, [1972] EWCA Civ 2

[New search] [Printable version] [Buy ICLR report: [1972] 1 WLR 1381] [Help]


JISCBAILII_CASE_FAMILY

Neutral Citation Number: [1972] EWCA Civ 2
Case No. 70 D 0525

IN THE SUPREME; COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE SOUTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE LEE)

Royal Courts of Justice.
28th July 1972

B e f o r e :

LORD JUSTICE RUSSELL
LORD JUSTICE EDMUND DAVIES
and
LORD JUSTICE STAMP

____________________

RUTH MARGARET BARNES
Petitioner
Appellant
and

GORDON WILLIAM BARNES
Respondent
Respondent)

____________________

(Transcript of the Shorthand Notes of the Association of Official Shorthandwriters Ltd., Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London W.C.2.)

____________________

MR. A. R. TYRRELL (instructed by Messrs. Ward Bowie & Co., Solicitors, London, agents for Messrs. Woodford & Ackroyd, Solicitors, Southampton) appeared on behalf of the Petitioner (Appellant).
MISS MARGARET GILLESPIE (instructed by Messrs. Walter Cheshire & Predko, Solicitors, Totton) appeared on behalf of the Respondent (Respondent).

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Revised

    LORD JUSTICE RUSSELL: I will ask Lord Justice Edmund Davies to deliver the first judgment.

    LORD JUSTICE EDMUND DAVIES: These are two appeals from orders made by Judge Lee at Southampton County court. The first was made as long ago as 30th June1971, and the second on 13th March 1972. The parties were married on 23rd July 1960; they had four children, who are now 11, 10, 8 and 7 years old, the second being a boy named Peter. The wife's affidavit in support of her petition for a decree of dissolution indicates that the parties were most unhappily married, and in March 1971 the wife obtained a decree of dissolution on the ground of cruelty, that decree being made absolute in June 1971. Of the four children mentioned, Peter remained with the husband until May 1971, when he left his father and the father's parents and rejoined his mother. In July 1971 the husband remarried, Just to complete the history of the matter as far as Peter is concerned, in June 1972 he left his mother once more, went to his father and is now in a residential home.

    The orders appealed against relate to the maintenance of the former wife and the four children of the marriage. In March of 1971 the County Court Judge had made an order in favour of each of the three children -- that is, excluding Peter -- in the sum of £2.50. There was a nil order pendente lite in relation to the wife (as, for sake of clarity, I shall continue to call her, without describing her in each case as "the first wife"). By the order of 30th June 1971, which, as I have said, is the first of those appealed against, the judge reduced the weekly payments in respect of each of the four children to £2, making £8 in all, and he made a nominal order of 5p per annum in respect of the wife. It will be recalled that by that time the decree absolute had been pronounced.

    Now why did the learned judge make that order? Notice of appeal having been given, he very helpfully, in November 1971, made a note for the assistance of this court. The note is in these words:

    "I cannot remember the words of my oral judgment, and no note is available to me. These facts remain clear in my mind. (1) The respondent, a serving soldier, is an extremely obstinate man."

    One may note here that the husband appears to be holding the rank of corporal in the Royal Army Catering Corps). The judge's note continues:

    "(2) He declared that he would never pay a penny to his ex-wife, and would go to prison rather than do so."
    "(3) The maximum sum which he could reasonably be expected to pay by way of maintenance was a total of £8."
    "(4) I therefore divided this sum of £8 between the four children now in the care of their mother to ensure payment."
    "(5) The petitioner, in view of the respondent's attitude, was to receive a nominal sum only."

    That order has been criticised by Mr. Tyrell, for the wife, on a number of grounds, basically, and principally, that it was wrong to make nothing more than a nominal order in her favour. Certain figures have been agreed between the parties as to the financial position at the time material to the making of that order. It appears from the affidavit of the husband, dated 28th June 1971, that he was then in receipt of a sum which, in terms of decimal currency, amounted to roughly £24.75. Taking from that figure items in respect of accommodation, food, electricity, gas and bus fares to work, there was a net figure of £14.50 left. The submission made by Mr. Tyrell on behalf of the wife is that in those circumstances the figure of £8, which had been ordered by the judge was, as he put it, "too low, although not a lot too low," and his submission was that there should have been an award to the wife of something in the order of £3 and for each of the children £175, making a total sum of £10.

    The first question that arises is: has it been demonstrated that the judge went wrong in arriving at that conclusion? One matter that has emerged perfectly clearly is that, as far as the evidence goes, any variation by way of reduction in the totality of the sums ordered to the wife and the children of the marriage would be reflected by adjustment of the social security benefits that the family would receive. There is evidence showing that on a later occasion when, pursuant to the second order to which we must presently turn, there was a reduction in the order made against the husband, the wife was not one penny the worse off because there was a corresponding increase in the social security benefit; and one of the two interesting questions that have arisen in the course of this case has been: what regard, if any, should the court have to the fact that social security benefit is available in cases of need?

    In my judgment, the problem is not an easy one. It is submitted by Miss Gillespie, for the husband, that such benefit is to be regarded as coming within section 5 (1) (a) of the Matrimonial Proceedings and Property Act 1970, as being comprised within the "other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future." I find it difficult to regard such state benefits as coming within such a frame, and I repeat that I do not regard the problem as easy.

    But some assistance is to be gained from a decision of the Probate, Divorce and Admiralty Division, which relates not to a social security benefit but to national assistance. In Ashley v. Ashley (1968) Probate page 582, the court held that in cases such as the one there involved:

    "where the husband's income was small, the order of the court in favour of the wife for herself and the children should not be such as to have the effect of reducing the husband's income below the subsistence level, .... for if the order so limited left the wife and children still below subsistence level, the National Assistance Board could properly be invoked to supplement their income and both parties and the children would then be at no better than subsistence level, but the result would be just as between the husband and his wife and children on the one hand, and between the husband and the general community as symbolised by the National Assistance Board on the other."

    Having heard the submissions of counsel, the conclusion to which I have come is that in the first place when the court is seeking to arrive at what would be a proper order, it is desirable that regard should not be had to social security benefits but that one should, looking at all the features of the case, which are adverted to and set out in section 5, seek to arrive at a fair figure. But if the case is one in which the income of the parties is of modest proportions, and if the total available resources of both parties are so modest that an adjustment of that totality would result in the husband's being left with a sum quite inadequate to enable him to meet his own financial commitments, then the court may have regard to the fact that in proper cases social security benefits will be available to the wife and the children of the marriage. Having such regard, the court is enabled to avoid making such an order as would be financially crippling to the husband if it considered only the combined income earning capacity and property of the parties. It would be, I am persuaded, unrealistic to take any other course, for we know what happened on one occasion, if not two, in a the present case, the wife in the result being not one penny the worse off notwithstanding the variations in the orders made by Learned judge.

    The other matter that has been ventilated, which is of some little interest, is that Mr. Tyrell appeared, certainly at one stage, to express the view that only slight regard need be paid to the fact that, as it is in the present case, the former husband has remarried and has so increased his responsibilities. For my part I think that that is a mistaken approach. When the court adverts to the requirement imposed by section 5 (1) (b) of the Act, to have regard to the "financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future," then the fact that the husband has undertaken the legal responsibility of maintaining a new wife must be fully borne in mind and be given the same degree and weight as his responsibility in any other financial respect.

    Having made those general observations, I ask myself whether it has been demonstrated that learned judge clearly went wrong in making the order of June 30. When one looks at what the husband had as disposable income -- something in the region of £14.50 after deduction of the items to which I have already made reference - for my part I do not think it has been established that in awarding the children of his first marriage and his wife a totality of £8, he misdirected himself. He apportioned the money in the way he did for the reason he explained in the note to which I have already referred. By so doing the order was made more palatable to the husband in a way which did no harm to the wife, and the only question is: was £8 wrong in principle? These matters have to be looked at broadly and looked at as the facts existed in June 1971. In my judgment it has not been shown that he did misdirect himself and, accordingly, I would be for dismissing the appeal against that order.

    Now as to the second order, which had the effect of reducing by £2 the amount being paid to the wife and the four children. The order that the same judge made was that each of the four children was to receive £150, and the nominal order of Sp per annum in respect of the wife remained unvaried. So, as I have said, there was a reduction of £2. It is said that the learned judge was wrong in failing to increase the wife's nominal order to one of realistic proportions, and in reducing the children's maintenance from the £2 awarded in June 1971 to £1.50 per week.

    The figures that we are presently concerned with are these: from the wife's affidavit of January 1972 it appeared that she was receiving the £8 from the husband, £2.90 family allowance and £7.60 social security. That made £18.50. Then, as a part-time barmaid, she was earning £2 per week, that being a sum which would not affect the amount of the social security benefits that she would be receiving. So in all her income was £20.50. As against that she was paying rent of £5.72, £2.10 a month for some hire-purchase charges, £1 a week for electricity and 50p per week in respect of gas.

    Now what of the husband? His gross income was £32.27; his net income, after deduction of the same items as those to which I have referred in relation to the first order, was, taking it in round figures, £20. It was said on behalf of the wife that she is now paying some £5 rent which she was not previously paying when she was living with her parents, and that the husband is earning more money. The submission made by Mr. Tyrell, on behalf of the wife, was that an order in the region of the total sum of £11 should have been made against the husband, made up of £3 for the wife and £2 for each of the four children. If that be adopted, the husband would be left with something like £9 for himself and his wife. Before the order was made, he was left with £20, out of which he had to pay £ 6 to his wife, leaving the sum of £14. Would it be just, in all the circumstances of this case, to vary the order of March 1972 to the extent urged by Mr. Tyrell, increasing the amount from £6 to £11, leaving the husband with, as I may say, a mere £9 for himself and his wife? In my judgment, while variation to a degree is called for, Mr. Tyrell goes much too far on behalf of his client. I think the time has come when the wife should have an order made in her favour. How much better off she is going to be is extremely open to doubt, nevertheless, I would be for allowing the appeal against this second order to this extent and to this extent only: while leaving the four children to have the sum of £150 a week each, I would be in favour of ordering that the wife receive the sum of £2, making a totality of £8. That would mean that the husband would have something in the region of £12 weekly for himself and his wife. I hope and believe that that would meet the justice of the case; beyond that I would not be prepared to go. To that extent I would allow the appeal against the second order.

    LORD JUSTICE RUSSELL: I agree. I too would not interfere with the June 1971 order that was left alone for so long. I wish to add only a few words with regards to the impact on these matters of social security benefits.

    What should be the proper approach? Prima facie a husband, or former husband, ought to support his wife and children -- subject, of course, to any independent income or earnings of the wife -- and he ought to support them to a proper standard. But in the lower income groups, this is frequently not possible out of the earnings of the husband, consistently with the husband being able to maintain himself to a proper standard and having regard also to any new responsibility he undertakes, as by law he is entitled to undertake, in the shape of a second wife and perhaps a second family. It is at this stage that the social security benefits to the first wife come into the picture.

    The existence of such benefits enables the court in effect to deal with a larger purse than would otherwise be available; but it would be quite wrong to say (and indeed it is not said) that the existence of those social security benefits either enables, or entitles, a husband to throw on to social security the burden which he ought himself to bear, consistently with being left himself with a proper standard. In my view the approach should in general be that the husband may be left with a proper standard, though his contribution to the wife and children is as a result inadequate to provide by itself a proper standard for the first wife and children, bearing in mind that social security benefits will provide sufficient addition to his contribution to the wife and children, producing a proper standard for them. That approach appears to me to coincide with the approach of the Divisional Court in Ashley v. Ashley, reported in (1968) Probate.

    On the figures in this case the wife's proposal on her appeal would involve the husband, who has remarried, in a net figure, after payment of housing, insurance, fuel and so forth, of only £9 weekly for the general support, food, clothing and so forth of himself and his new wife; the order as it stands leaves £14 weekly for those purposes. As I see it, neither the order nor the wife's proposal on appeal affects the sums available to the wife and children, due to the operation of social security, her comparable available money being somewhere between £11 and £12.

    It seems to me that first of all a specific order of £2 weekly should be made in respect of maintenance for the wife; and secondly that the sums for the children of £150 each should not be altered. The outcome of that will be that due to the impact of social security benefits, the wife will have the same amount, but that the husband will have made a more proper contribution, leaving him with £12 weekly in place of the £14 weekly that was left under the order of March 1972, and also in place of the figure of £9 with which he would have been left had the wife's submissions been wholly accepted. Since the order of March 1972 one of the four children has returned to the husband, and indeed is at present in care, and no doubt the husband will be under some financial obligation in another quarter for the upkeep of that child; but that, it seems to me, is something to be regarded as so to speak a balancing matter. I do not know whether it will be for consideration in a moment from when this variation of the order should operate.

    LORD JUSTICE STAMP: I agree and have nothing to add.

    (Order: Appeal against order of 30th June 1971 dismissed; order of 13th March 1972 varied by awarding wife maintenance at the rate of £2.00 per week in place of nominal order of 5p per week: both variations to date from today: no order as to costs except legal aid taxation. both parties)


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1972/2.html