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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hayer v Hayer [2002] EWCA Civ 1670 (30 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1670.html Cite as: [2002] EWCA Civ 1670

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
(His Honour Judge Corrie)

		Royal Courts of Justice Strand London, WC2 Wednesday, 30th October 2002

Wednesday, 30th October 2002

1. LADY JUSTICE HALE: This is an application by a former husband for permission to appeal against the order made by His Honour Judge Corrie in the Oxford County Court on 10th March 2000 on his appeal from an order made by Deputy District Judge Williams on 8th September 1999 in ancillary relief proceedings.
2. In making this application the applicant faces two formidable difficulties. The first is that he needs a massive extension of time. It is now more than two and a half years since the date of the order. The excuse that he gives is that he did not realise that he might have taken his case to a higher court until he saw publicity, for example, about the case of Mrs Pretty which went through the courts in 2001. On the other hand, he tells me that he sought free legal advice from a number of solicitors but that none of those told him that he could go to another court. I regret to say that that is not an acceptable reason for a delay of this magnitude. It is extremely important that litigation be brought to a conclusion upon which both parties can rely. A person who is dissatisfied with the outcome of the proceedings so far has to take reasonable steps to discover what else he might do about it. In my view there is no reason at all to extend time to appeal in this case.
3. The second problem that he faces is that this is a second appeal. In other words, two courts have already heard the case. Both of them have had the opportunity of hearing evidence. Under section 55(1) of the Access to Justice Act 1999, in order for this court to entertain a second appeal it is not enough that it might have some prospect of success; it must raise an important point of principle or practice or there must be some other compelling reason for the court to hear it. I accept that there might be a compelling reason if there was a good prospect of success, but in my view there is no such prospect in this case.
4. This was an arranged marriage between two members of the Asian community. They married in 1993. They lived with the husband's parents for the first few years. The wife worked part-time from June 1993 and full-time from June 1994. Their child was born on 30th June 1996 and the wife returned to work full-time in Easter 1997. The former matrimonial home was bought in joint names in August 1996 for £52,000. The husband contributed £10,000 and the wife contributed £2,000 to the £12,000 deposit. The rest was raised by a repayment mortgage from the TSB. The husband paid the mortgage and the other outgoings, and the wife paid for the food.
5. The wife left with the child to live with her parents, and the husband stayed in the former matrimonial home. Divorce proceedings began in 1998, with a decree nisi in January 1999 and a decree absolute in November 1999 after the first ancillary relief hearing. The wife was not asking for periodical payments -- she was still in employment -- but she wanted some of the equity from the house. The case put before the Deputy District Judge was that she could get a house for £50,000. She had a mortgage capacity of £35,000. The husband, on the other hand, wanted to stay in the former matrimonial home. His case was that he had made the larger contribution towards it and the wife should simply be repaid the limited contribution she had made towards the house.
6. The Deputy District Judge went through the full list of factors which are set out in section 25 of the Matrimonial Causes Act 1973. She recognised that this was a fairly short marriage between young people, but there was a young child for whom the wife was responsible. They clearly had a need for a home. The wife was not seeking periodical payments or 100% of the equity, which is not infrequently the outcome in situations of this nature where there is a child for whom both parties ought to be bearing responsibility throughout that child's childhood. The Deputy District Judge took the view that the husband's case was not justified. They had both saved. The wife had maintained the child and the husband had paid the household bills. The wife had looked after the home and family as well as working full-time. the Deputy District Judge found that the equity was £24,000. The cost of a home for the wife was £45,000. Taking into account her mortgage capacity of £35,000, that would, of course, leave £10,000, but she also needed costs and furniture. Thus the Deputy District Judge assessed her financial needs at £16,250. She directed a sale of the house and a division of the proceeds accordingly. She found that the jewellery which the husband wished to recover had been a gift to the wife, and she also found that the wife should have five items of equipment from the former matrimonial home. She made no order for costs.
7. The husband was represented by counsel before the Deputy District Judge, but he dispensed with the services of his lawyers thereafter and he appealed in person to the Circuit Judge. The Circuit Judge conducted a rehearing in accordance with the principles in the case of Marsh v Marsh. That allowed a greater leeway to the Circuit Judge than is now the case, so the Circuit Judge did hear and receive some fresh evidence and exercised his discretion afresh. That would no longer be possible under CPR 52 and the case of Cordle v Cordle.
8. By the time of the hearing before the Circuit Judge the house had been sold and the proceeds had in fact been £24,800. The husband's case was that the wife should have no more than £2,500. This was her £2,000 contribution and £500, representing a generous level of interest. The husband's case was that the wife would not buy a house for herself but would spend the money on high living.
9. The judge found that the husband had displayed no insight into the need for the child to be housed and the requirement in section 25(1) that first consideration be given to the welfare while a minor of any child of the family who has not attained the age of 18. He received fresh evidence, produced by the husband, as to property prices in West Bromwich, where the wife lived. There was also a bank account in which the child benefit, totalling £2,600, had been accumulated by the husband. He concluded that the housing need of each party was £42,000. This was because he considered that, although the husband was living on his own, it was a reasonable aspiration for him to have his child to stay with him. The mother could acquire perfectly adequate accommodation where she wanted for that: so he put the husband's needs at £13,000 and the wife's needs at £12,000. Leaving it at £12,000 would ignore her continuing responsibility for the child. However, he varied the order so as to give the husband £12,000 from the net proceeds of sale and the wife the balance of £12,800 plus the child benefit account. In other words, to some extent the husband succeeded in his appeal. The sums were expressed as shares of the proceeds in percentage terms in case there might be some interest on the money in the intervening few months.
10. Despite having succeeded to some extent, the husband still believes that he has been the victim of rough justice; in his words "ripped off" and conned. He brought £8,000 into the marriage, the wife made no contribution toward her board and lodging while they were living with his parents and it cost them £6,000 to have her living there. The wife's £2,000 towards the house was a repayment for the cost of the holidays that they had had. The house was not really a matrimonial home because they were already on bad terms when they moved there. He was therefore the rightful owner and landlord, and the wife's contribution towards the family's food was to be regarded as rent. It was for those reasons that he offered the £2,500 to repay the £2,000 with interest. He was also most concerned that the wife had accumulated savings during the marriage and had transferred those, as the marriage started to get into difficulties, to her parents. Before the Deputy District Judge she said that some at least of that was to repay the costs of with the wedding. But after the order had been made some of that money had been released so that she could buy a car. Both judges ignored those savings in their calculation. He still regards his initial proposal as a fair recompense for such a short and unsatisfactory marriage. He places a great deal of weight on the fact that he wrote to the Prime Minister after the first hearing and received a reply from an official, which I have not seen but which told him that the factors taken into account were the length of the marriage, the contributions made by the parties and the need for accommodation. He also tells me that he has since procured a copy of section 25 of the Matrimonial Causes Act 1973. He should understand that the courts of this country apply the law as laid down by Parliament. They do not apply the law as stated in letters from officials, whether from the Prime Minister's Office or anywhere else.
11. The law as laid down by Parliament is in section 25 of the Matrimonial Causes Act. This does include the contributions which the parties have made to the welfare of the family, but it should be noted that those contributions include not only the ones that they have already made but the ones that they are likely to make in the foreseeable future; and they include any contribution made by looking after the home or caring for the family. So future non-financial contributions are an important part of the calculation. Furthermore, the court has to look at the financial needs, obligations and responsibilities which each of the parties to the marriage has, or is likely to have, in the foreseeable future. That is why the purely mathematical approach contended for by the husband in this case was never going to work.
12. The fact is that this short marriage, however unsatisfactory it was for both parties, produced a child; and the court's first concern in these cases, as a result of section 25(1) (which I have already cited), is the welfare of that child. It is not at all uncommon, in those circumstances, for the courts to do more than happened in this case. The courts start from an assumption of equal sharing of the accumulated matrimonial assets, and, where there is a child to be looked after, that assumption may be displaced towards giving a greater share to the person responsible for bringing up the child. So the order made by the Deputy District Judge, who clearly had in mind the wife's savings, clearly encompassed the jewellery in her order, was not in fact a surprising order to make, and these days it is unlikely that the Circuit Judge would have interfered.
13. The husband, in my judgment, did well to succeed to the extent that he did before the Circuit Judge. He would stand no chance whatsoever of doing any better before this court. For these reasons this application must be dismissed, but I will make an order that he gets a copy of this judgment.

Order: Application dismissed. Copy of the judgment to be provided to the Applicant at public expense.

(Order does not form part of approved judgment)