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Family Law

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27 APR 2015

Bromfield v Bromfield [2015] UKPC 19

Bromfield v Bromfield [2015] UKPC 19
(Privy Council, Lords Wilson, Hodge, Lady Hale, 27 April 2015)

The judgment and accompanying headnote has now published in Family Law Reports [2016] 1 FLR 482]

Financial remedies – Married Women’s Property Act 1882 – Matrimonial Causes Act 1973 – Capitalisation of increased periodical payments – Whether the court had jurisdiction to do so – Whether the judge had sufficiently reasoned his decision

The Privy Council dismissed the wife’s appeal under the Married Women’s Property Act 1882 but allowed the appeal under the Matrimonial Causes Act 1973.

The husband and wife lived in Jamaica where they were married and had three children together. Prior to their divorce after a 15-year marriage the husband gifted part of his legal interest in the matrimonial home to the wife and children but it still remained unclear what the purpose and effect of the gift was. The wife applied firstly, under the Married Women’s Property Act 1882 for a significant equitable interest in several properties which the husband had an interest in and subsequently under the Matrimonial Causes Act 1973 for the variation of a previous order requiring the husband to make periodical payments to her of $50,000 pm to be substituted for an order for periodical payments of $235,000pm.

The husband’s interest in the matrimonial home was transferred to the wife but otherwise her first application was dismissed. The husband was ordered to pay the wife $3m in full and final settlement of her financial claims and the periodical payments order was terminated. The Court of Appeal dismissed the wife’s appeal from the Supreme Court judgment and she now appealed to the Privy Council.

The Privy Council found that too much emphasis had been placed on the Married Women’s Property Act 1882 given that the Matrimonial Causes Act 1973 gave such wide redistributive powers and would call for an investigation into all of the financial circumstances of the parties. The appeal under the Married Women’s Property Act 1882 was dismissed. There could be no justification for interfering with that decision both in relation to the findings of fact and the application of the equitable principles.

The appeal under the Matrimonial Causes Act 1973 was allowed and the orders were set aside. In reaching his conclusion the judge had failed to investigate the husband’s failure to disclose information regarding his income and expenditure. He also failed to reason why he rejected the wife’s inflated budget and instead adopted one of $100,000pm. Furthermore, he failed to take into account the children’s interest in the matrimonial home.

The case would be reheard by another judge of the Supreme Court. The original order would be reinstated in the interim ordering the husband to pay the wife $50,000pm.
Easter Term
[2015] UKPC 19

Privy Council Appeal No 0109 of 2013

Eutetra Bromfield
(Appellant)

v

Vincent Bromfield
(Respondent)

(Jamaica)

From the Court of Appeal of Jamaicabefore

Lady Hale
Lord Wilson
Lord Hodge

JUDGMENT GIVEN ON27 April 2015
Heard on 13 January 2015

Tim Amos QC and Saima Younis (Instructed by Simons Muirhead & Burton Solicitors) for the Appellant
Michael Hylton QC, Marlene Malahoo Forte and Melissa McLeod (Instructed by Sheridans) for the Respondent  


Judgment

Lord Wilson
:

Introduction

[1] It will be convenient to describe the appellant as the wife and the respondent asthe husband even though they were divorced in 1998.

[2] The wife appeals against the order of the Court of Appeal (Panton P, MorrisonJA and Hibbert JA (Ag)) dated 20 December 2012, by which, subject to a minorproposed variation to which the Board will refer at para 9 below, it dismissed her appealfrom the order of Brooks J, sitting in the Supreme Court, dated 6 January 2009.

[3] Before Brooks J were two applications by the wife. The first was an applicationissued on 3 April 1998 under the Married Women’s Property Act. The second was anapplication issued on 30 August 2006 under the Matrimonial Causes Act formodification (by way of increase) of an order made by Harris J dated 20 October 2000that the husband should make periodical payments to the wife in the sum of $50k permonth during their joint lives or until further order. There had been a third applicationbefore Brooks J, namely by the husband for discharge of the order dated 20 October2000, but the husband withdrew it in the course of the hearing.

[4] Apart from ordering that, in accordance with the husband’s own proposal, heshould transfer to the wife his interest in the matrimonial home, in which she remainedliving, Brooks J dismissed her application under the Married Women’s Property Act.On her application under the Matrimonial Causes Act he ordered that, also inaccordance with the husband’s own proposal, he should make to her a lump sumpayment of $3m in full and final settlement of all her financial claims against him andthat therefore the order for periodical payments dated 20 October 2000 should besuperseded.

[5] Before both Brooks J and the Court of Appeal, and in the written argument onthis further appeal, there was, in the opinion of the Board, too much concentration onthe issues raised under the Married Women’s Property Act and too little concentrationon those raised under the Matrimonial Causes Act. Both local courts were invited, oninadequate documentary material, to investigate the source of the purchase price ofvarious properties bought more than 20 years previously and to rule on rival versionsof what the husband had at that time said to the wife. The effect of English authoritieson the constituents of a constructive trust was explored at length. But any success onthe part of the wife in establishing a beneficial interest to property would have reduced her entitlement, whether to continued periodical payments or to a lump sum, under theMatrimonial Causes Act. After 1971, when statute first conferred wide powers on thecourts of England and Wales to redistribute the property of the spouses followingdivorce, issues between them about beneficial interests in property under section 17 ofthe Married Women’s Property Act 1882 were generally understood to have becomeredundant and they were discouraged and fell into desuetude: see Fielding v Fielding,(Note) [1977] 1 WLR 1146. Following the coming into force on 7 December 2005 ofthe Maintenance Act and of amendments to the Matrimonial Causes Act, in particularto section 23, courts in Jamaica now also have wide powers to redistribute propertyfollowing divorce. But they also have the powers conferred by the Property (Rights ofSpouses) Act. This Act came into force on 1 April 2006 and unfortunately its provisionsdid not apply to the wife’s application under the Married Women’s Property Actbecause it was issued prior to that date: section 24. The Property (Rights of Spouses)Act (which also, and enviably, confers rights on certain non-marital cohabitants)confers on the court following divorce limited redistributive powers in relation to thefamily home and wider such powers in relation to other property: sections 13-15. Itrequires the court, in any redistribution of other property, to take into account not onlythe financial contributions, direct or indirect, which would have been relevant to thecreation of an equitable interest in property but other contributions and indeed all othercircumstances which the justice of the case requires to be taken into account: section14(2) and (3). The Board hopes that the limited, difficult and ultimately arid inquiry ofthe type which has been required of both courts by the wife’s application under theMarried Women’s Property Act will not be required of them in the future.

The facts

[6] It appears that the husband is now aged 79 and that the wife became 72 yesterday.They were married in 1977. They had three children, all girls, namely twins born justprior to the marriage and the third born in 1980. In 1978 the matrimonial home at 3Pinkneys Green, Kingston 6, was bought in the husband’s sole name. Prior to themarriage the wife, who had graduate and postgraduate degrees, had been employed invarious managerial positions, including latterly in the Jamaican government; but,following the birth of their third child, she gave it up. Thereafter she worked, at least tosome extent, in the husband’s two businesses. He had a bus business and a hotelbusiness. The former was conducted through a company which became known asBloomfield Jamaica Ltd and, upon its incorporation in 1980 and the issue of 1555shares, there was an allocation to the wife of 100 shares, which she still holds. The latterwas conducted through a company named Medallion Hall Ltd, which was incorporatedin 1984. It seems that at some stage it was intended that the wife should have 2 sharesout of 299 issued shares in that company but in the event no shares were issued to her.The company opened the hotel, known as the Medallion Hall Hotel, in 1989 and it wassituated on properties at 53 and 55 Hope Road and at 86 Lady Musgrave Road, in noneof which did the wife have a legal interest.

[7] In 1992 the husband left the home at 3 Pinkneys Green and the marriage cameeffectively to an end. In 1995, thus prior to the divorce in 1998, the husband, by way ofgift, made a disposition of part of his legal interest in the home to the wife and the threedaughters. The Board is surprised that, even after 20 years, the effect of the dispositionshould not be entirely clear. At the hearing before the Board the wife submitted that itseffect was to give an undivided 20% share of the legal interest to each of the wife andof the three daughters and thus to leave the husband with only 20%. The alternativeconstruction is that its effect related only to 20% of the legal interest in all and was suchas to divide that 20% interest in five ways, namely 4% to the wife, 4% to each of thedaughters and 4% back to the husband himself. Were that to be a correct analysis of thedisposition, and without regard to the order of Brooks J for transfer (which has not beenimplemented), the husband would have an 84% interest in the home; the three daughterstogether would have 12%; and the wife would have 4%. The important point is,however, that on any view the daughters have some legal interest in it. The evidencedoes not explain the purpose of the husband’s gift.

The Married Women's Property Act

[8] In her application under the Act the wife claimed a substantial equitable interest,in effect equal to that of the husband, not only in the home at 3 Pinkneys Green and inthe three properties on which the hotel was situated but also in three other properties inwhich the husband had an interest. She also contended that he held his shares in the twocompanies partly in trust for her. Brooks J reminded himself that the burden of prooflay on the wife. He received extensive evidence and argument, in particular about thesource of moneys used, directly or indirectly, in the purchase of all these assets, and hedeprecated the paucity of the documentary evidence in that regard. Although in twospecific respects he rejected the evidence of the husband, Brooks J found the wifegenerally to be less credible than him. For example he rejected her evidence that thepurchase of the home was funded partly out of her resources and he accepted thehusband’s evidence that instead it was funded by the proceeds of sale of his pre-maritalhome in Harbour View. Contrary in this respect to the evidence of the husband, BrooksJ found that the wife, who had been made a director of Medallion Hall Ltd, had workedin the hotel; but he held that neither her directorship nor her work gave her an interestin the husband’s shares in the company.

[9] In the course of surveying the wife’s complaints about the factual findings andthe resulting legal conclusions of Brooks J, the Court of Appeal, by a judgmentdelivered by Panton P with which the two other members of the court agreed, consideredin even greater detail the rival evidence about the source, direct or indirect, of theancient acquisitions. Subject to one point, the court rejected all the wife’s grounds ofappeal. The one point related to the property at 55 Hope Road which, although beingthe site of part of the hotel, was owned by Bloomfield Jamaica Ltd. The court held that,inasmuch as the wife held 100 shares (or 15.55%) of the issued share capital in thatcompany, she had a corresponding 15.55% interest in 55 Hope Road and it proposed that the court should so declare. Oddly, when coming a few weeks later to sign theCertificate of Result of Appeal, the Deputy Registrar omitted to include the declarationproposed by the court. As it happens, however, the omission was fortuitous. For, as bothparties now agree, the Court of Appeal was, with respect, wrong to conclude that 55Hope Road, being company property, was owned by its shareholders. As LordSumption said in Prest v Petrodel Resources Ltd [2013] UKSC 34, [2013] 2 AC 415,476:

“8. Subject to very limited exceptions, most of which are statutory,a company is a legal entity distinct from its shareholders. … Itsproperty is its own, and not that of its shareholders.”

[10] Even when, as in the present case, their clients have a right of appeal to the Boardunder the Constitution, practitioners should have regard to the extreme difficulty ofbringing a successful appeal against findings of fact which have been indorsed by thelocal appellate court. In Devi v Roy [1946] AC 508 the Board traced back to 1849 itspractice of declining to conduct a third review of the evidence save in exceptionalcircumstances, which it identified as a miscarriage of justice or a violation of someprinciple of law or procedure; and the Board has all too frequently been required torestate its practice during the last 70 years, for example in the appeal from Jamaica inChin v Chin (No 2) [2007] UKPC 57 at para 8. In the present case the wife has faced ahopeless task in arguing, at length in her written Case but more economically at thehearing, that the Board should set aside the dismissal of her application and shouldeither declare her to be entitled to a 50% equitable interest in the assets vested in thehusband’s name or direct that her application be reheard. In summary the wife makesthe following seven points:

(a) she was a director of both companies;

(b) she was a shareholder in Bloomfield Jamaica Ltd, albeit only as to15.5% and it was at one stage intended that she should have shares, albeitonly two, in Medallion Hall Ltd;

(c) the judge found that she worked in the hotel business and in otherof the husband’s enterprises;

(d) in that respect, as well as in one other, the judge disbelieved thehusband;

(e) the wife also worked in the home and thereby saved the husbandfrom paying for a greater amount of household help;

(f) as the Court of Appeal accepted, it was unfortunate that Brooks Jhad failed expressly to find that the parties had no common intention thatthey should own the properties and the companies equally, although, inthe Court of Appeal’s view, such a finding was to be inferred; and

(g) it was inherently improbable that the wife would have acted as shedid unless it had been agreed that she should have an interest in theproperties and the companies.

[11] None of the seven points, even if taken cumulatively, begins to justify the Boardin reversing the conclusion of the Court of Appeal that, on the evidence before him,Brooks J had been entitled both to make his findings of fact and, by the application tothem of equitable principles not in dispute, to conclude that, otherwise than in relationto the matrimonial home, the wife’s application under the Married Women’s PropertyAct should be dismissed.

The Matrimonial Causes Act

[12] In his judgment Brooks J noted that the wife was applying under section 20(3)of the Matrimonial Causes Act for a modification of the order dated 20 October 2000.Section 20(3) provides:

“If, after any [order for periodical payments, secured or unsecured]has been made, the Court is satisfied that the means of either orboth of the parties have changed, the Court may, if it thinks fit,discharge or modify the order , or temporarily suspend the order… and subsequently revive it …”

[13] The analysis of Brooks J proceeded as follows:

(a) The wife was then aged 64 (although in fact she was 65).

(b) She was seeking an increase of periodical payments from $50k permonth under the order dated 20 October 2000 to $235k per month.

(c) She had produced a detailed budget totalling $235k per month butsome elements of it were inflated or unrealistic.

(d) Although at least one of the daughters was living with her, shemust be taken to be living alone.

(e) “A sum of $100k per month would not be considered penury”.

(f) Since the making of the order dated 20 October 2000, namely in2006, the husband had remarried.

(g) He also had a teenage son whose education he proposed to financeto the tertiary level.

(h) The husband contended that he could no longer afford to pay $50kper month to the wife.

(i) But the husband had “not given any indication of his income andexpenses in order to assist the court in identifying an appropriate figure”apart from stating in cross-examination that he earned a salary of $2m to$2.5m per year.

(j) In the light of the time which had elapsed since the divorce and thesubsequent changes in the husband’s life, the time had come for periodicalpayments to cease.

(k) The husband’s “failure to provide any credible informationconcerning his income and expenditure” encouraged the move to an orderfor a lump sum payment.

(l) The husband was offering to transfer his interest in the home to thewife and to pay a lump sum to her of $3m.

(m) The figure of $100k per month, or $1.2m per year, needed to becapitalised.

(n) In the light of multipliers used in the calculation of damagespayable to men aged 63 and 66 in two reported cases, and applying a slightincrease because most women lived longer than most men, it wasappropriate to adopt a multiplier of five and thus to arrive at a capital sumof $6m.

(o) The husband was offering to pay to the wife a lump sum of only$3m but he was also offering to transfer to her his interest in the homeand, “assuming that [she] were able to secure a further lump sum byrelocating to a less expensive property”, the offer of $3m assumedcredibility.

(p) Two years previously the husband had obtained a valuation of thehome in the sum of $43m.

(q) He (Brooks J) was satisfied that the lump sum of $3m and the cashsum which the wife could release from sale of the home would, together,be sufficient to enable her to generate, whether by investment in abusiness or otherwise, income of a fair standard for the rest of her life.

[14] Brooks J proceeded to order that the lump sum of $3m be paid in three equalmonthly instalments. The Board is informed that the instalments were duly paid. Butthey were paid to her attorney on her behalf and, no doubt legitimately, he reimbursedhimself out of them in respect of her costs.

[15] In embarking on an explanation for the Court of Appeal’s dismissal of the wife’sappeal against the order of Brooks J for payment of a lump sum, Panton P recorded thesubmission of the husband’s attorney, with which the court clearly agreed, that “section23 of the Matrimonial Causes Act gave the court an opportunity to do what it did”. Asthe Board will explain, the reference to section 23 may have been entirely appropriate.Nevertheless there seems to have been no reference to section 23 in the proceedings upto that point and the parties appear to agree that the President was more probablyreferring, as had Brooks J, to section 20(3) and that his reference was mistyped.

[16] The President then proceeded as follows:“The appellant has not stated the nature of the order that she wishesthis court to make. We do not think that she could possibly beasking for an increase of the sum ordered by Harris J and for thatorder to be in perpetuity.”With respect, it is clear to the Board that the wife was, as before, seeking an increase inthe order for periodical payments to $235k per month and was, as before, contendingthat it should continue during the joint lives or until further order.

[17] The President thereupon explained the kernel of the Court of Appeal’s decisionin the following terms:

“Where a marriage has been dissolved, and one of the parties hasremarried and thereby taken on further responsibilities includingchildren, it ought not to be expected that that party will ordinarilycontinue to maintain the other party of the dissolved marriageindefinitely. That is the principle that ought to be regarded asguiding the instant situation. We are of the view that Brooks J (ashe then was) approached the matter in the correct way. There couldnot be a lifetime award in a situation such as this … The appellanthas not … demonstrated that the lump sum awarded isunreasonable in the circumstances.”

[18] In his written submissions to the Court of Appeal, as in his written case beforethe Board, the wife’s attorney complained that neither party had issued an applicationbefore Brooks J for an order for the husband to pay a lump sum in full and finalsettlement of the wife’s financial claims. But he never asserted that, irrespective of theissue of an application, Brooks J had no jurisdiction to make such an order. Neverthelessit was far from obvious to the Board that the power under section 20(3) of theMatrimonial Causes Act to “modify” the order for periodical payments dated 20October 2000, being the power invoked by Brooks J and probably also by the Court ofAppeal, was apt to have invested him with jurisdiction to order the husband to make alump sum payment to the wife. At the hearing the Board therefore invited counsel toexplain the source of his jurisdiction to do so.

[19] Unfortunately the invitation to counsel caught them unawares. Doing their best,both counsel submitted that the judge’s jurisdiction lay in section 20(1) of theMatrimonial Causes Act, which provides:

“On any decree for dissolution of marriage, the court may, if itthinks fit –

(a) order a spouse … to secure to the [dependant]spouse …, to the satisfaction of the court –

(i) such gross sum of money; or

(ii) such annual sum of money for any termnot exceeding the life of the dependantspouse, as … the Court thinks reasonable;”

It is clear that section 20(1)(a) confers jurisdiction to order not a lump sum payment butsecured periodical payments, ie periodical payments secured on specified assets to beprovided by the paying spouse. It provides no answer to the Board’s inquiry. Inparenthesis, however, the Board expresses surprise that the words “for any term notexceeding the life of the dependant spouse” have been set within section 20(1)(a)(ii)and not underneath both (i) and (ii) so as to apply to both of them. The current versionof section 20(1) came into force on 7 December 2005 and replaced an earlier version ofthe subsection in which those words clearly applied to the gross sum as well as to theannual sum. The provision of secured periodical payments, whether in the form of agross or of an annual sum, cannot lawfully endure beyond the life of the dependantspouse. No doubt the problem is one of formatting.

[20] At the hearing the Board directed the parties to file written submissions as towhether the judge’s jurisdiction had instead been located in section 23 of theMatrimonial Causes Act, when read together with section 15 of the Maintenance Act.

[21] Section 23 of the Matrimonial Causes Act provides:

“(1) The court may make such order as it thinks just for thecustody, maintenance and education of any relevant child or forthe maintenance of a spouse –

(a) … in any proceedings for dissolution … of marriagebefore, by or after the final decree;…

(2) An order under subsection (1) for the maintenance andeducation of any relevant child or for the maintenance of a spouseshall be in accordance with the provisions of the MaintenanceAct.”

The inclusion in section 23 of the power in subsection (1) to make orders for themaintenance of a spouse and of the provision in subsection (2) took effect on 7December 2005, being the date on which the Maintenance Act came into force.

[22] Section 15 of the Maintenance Act, of which the side-note is “Powers of Courtregarding maintenance orders”, provides:

“(1) In relation to an application for a maintenance order, the Courtmay make an interim or final order requiring –

(a) that an amount be paid periodically whether foran indefinite or limited period, or until the happeningof a specified event;

(b) that a lump sum be paid or held in trust;

(c) that property be transferred to or held in trust foror vested in the dependant …”

[23] In her written submissions to the Board following the hearing the wife arguesthat those two sections conferred no power on Brooks J to order payment of a lump sumbecause, although her application for modification of the order for periodical paymentswas issued after 7 December 2005, the order of Harris J was made before that date. Butthe Board sees no reason to attach significance in this context to the date of the ordermade by Harris J. It accepts the written submissions of the husband that:

(a) section 23(1) of the Matrimonial Causes Act conferred on Brooks Jjurisdiction to make an order for the “maintenance” of the wife;

(b) section 23(2) requires the order to have been in accordance with theprovisions of the Maintenance Act; and

(c) section 15(1)(b) of the Maintenance Act makes clear that an order forpayment of a lump sum is a species of an order for “maintenance”.

[24] The Board therefore concludes that Brooks J had jurisdiction to make the orderfor a lump sum. Experience in England and Wales of the jurisdiction to make financialorders following divorce shows that it is indeed sometimes extremely valuable that, onan application to vary an order for periodical payments, the court should be able to orderpayment of a lump sum in full and final settlement of all the applicant’s financial claimsand on that basis to discharge the order for periodical payments. Section 31(7A) and(7B) of the English Matrimonial Causes Act 1973, which was inserted into it in 1998,expressly conferred power to make such orders upon an application to vary an order forperiodical payments but those subsections were necessary because section 31(5) hadexpressly prohibited the making of such orders. There is no parallel with section 31(5)in the Jamaican Matrimonial Causes Act. Nevertheless, had Harris J in 2000 made anorder for the husband to pay a lump sum to the wife as well as to make periodical payments to her, there would have been lively argument as to whether Brooks J hadjurisdiction to make a second order for payment of a lump sum; and Parliament mightwish to make express provision so as to override that potential difficulty.

[25] What were the considerations by reference to which Brooks J should havedetermined the wife’s application for modification of the order for periodical paymentsand have determined whether, instead, to order the husband to make a lump sumpayment to the wife in full and final settlement? In two separate places the MatrimonialCauses Act offered him the answer. For section 20(4) of that Act required him to haveregard to the matters specified in section 14(4) of the Maintenance Act in determiningthe wife’s application; and, as set out in para 21 above, section 23(2) required any orderfor a lump sum to be in accordance with the provisions of the Maintenance Act. He wastherefore required to turn to section 14(4), which, like section 15, is in Part VI of theMaintenance Act, entitled “Maintenance Orders”. Section 14(4) provides:

“In determining the amount and duration of support, the court shallconsider all the circumstances of the parties … and –

(a) the respondent’s and the dependant’s assets and means;

(b) the assets and means that the dependant and the respondentare likely to have in the future;

(c) the dependant’s capacity to contribute to the dependant’sown support;

(d) the capacity of the respondent to provide support;

(e) the mental and physical health and age of the dependant andthe respondent and the capacity of each of them for appropriategainful employment;

(f) the measures available for the dependant to become able toprovide for the dependant’s own support and the length of time andcost involved to enable the dependant to take those measures;

(g) any legal obligation of the respondent or the dependant toprovide support for another person;

(h) …

(i) any contribution made by the dependant to the realizationof the respondent’s career potential;

(j) …

(k) the extent to which the payment of maintenance to thedependant would increase the dependant’s earning capacity byenabling the dependant to undertake a course of education ortraining or to establish himself or herself in a business or otherwiseto obtain an adequate income;

(l) the quality of the relationship between the dependant andthe respondent;

(m) any fact or circumstance which, in the opinion of the court,the justice of the case requires to be taken into account."

[26] With regret, and conscious that neither Brooks J nor the Court of Appeal appearsto have received from the advocates the assistance that each deserved, the Board hasreached the clear conclusion that the orders for capital provision for the wife in full andfinal settlement of all her claims are flawed and should be set aside and that the issuesraised under the Matrimonial Causes Act should be re-heard, indeed, in the light of theelevation of Brooks J, by another judge of the Supreme Court. It may be that, on properexamination, the provision offered by the husband and accepted by Brooks J will befound to be appropriate. But its appropriateness is in no way evident to the Board which,respectfully, makes the following seven criticisms of the way in which the judgereached his conclusions:

(1) Instead of accepting the husband’s “failure to provide any credibleinformation concerning his income and expenditure”, the judge should havedischarged his duty under section 14(4)(a) of the Maintenance Act by seeking toobtain the information in other ways. The Board’s own researches suggest that,as it would expect, there is power to order a party to disclose specified documents(rule 28.6 of the Civil Procedure Rules) and to answer questionnaires (rule 34.2)and also power to issue a witness summons to a third party to give oral evidenceand presumably also to produce documents (rule 11.12(1)). By virtue of Rule76.3(1), all these rules apply to matrimonial proceedings but there is no evidenceof the use of such powers in relation to the issues between these parties under theMatrimonial Causes Act. The Board would, for example, expect copies of the husband’s recent tax returns, bank statements, credit card statements, companyaccounts and passport to have shed light on his income and expenditure or, atleast, to have identified questions apt for a questionnaire.

(2) It was impossible for the judge to identify fair capital provision for thewife without any reference to the approximate size and nature of the existingassets of the husband and of herself.

(3) The judge investigated the wife’s itemised monthly budget and may havebeen entitled to conclude that it was exaggerated. But he failed to identify eventhe major items which he declined to accept; and in particular he gave noexplanation for having alighted on a figure of $100k per month as beingsufficient to meet her reasonable needs (other than to observe that the figure was“not…penury”).

(4) The Board recognises that it has not been considered necessary in Jamaicato formulate capitalisation tables analogous to the Duxbury tables used inEngland and Wales but no doubt the courts can at least receive evidence of thecommercial cost of annuities. At all events the Board considers that the judgmentinsufficiently explained why a multiplier of five was apt to identify the capitalsum which should enable a 65 year old woman to spend $1.2m per year,inflation-linked, for the rest of her statistical life; nor is it clear from the Notesof Proceedings that any opportunity was given to the wife’s attorney to commenton the multiplier before the judge adopted it.

(5) Although the valuation obtained by the husband in 2007, if accurate,demonstrated that the home was of high value, the judge concluded that it wouldbe reasonable for it to be sold without apparently affording to the wife theopportunity to comment on whether it would be reasonable for her to movehome.

(6) Nor did the judge have any evidence about the cost of reasonablealternative accommodation for the wife and for those persons (unidentified in thejudgment) who were living in the home with her and who might reasonablycontinue to make their home with her.

(7) Nor did the judge remind himself that on any view the three daughterswere legal joint owners of the home; nor proceed to address whether they wouldbe likely to consent to its sale or could be required by court order to join in itssale; nor estimate the extent to which, in the event of a sale, their interest woulddeplete the proceeds available to the wife.

[27] Such has been, at every stage, the emphasis on the wife’s application under theMarried Women’s Property Act that, although lacking the Notes of Proceedings beforethe Court of Appeal, the Board doubts whether many of these seven points were thereadvanced on the wife’s behalf. But, in dismissing the appeal against the orders underthe Matrimonial Causes Act, the Court of Appeal, as noted in para 17 above, stated theguiding principle to be that, where following divorce the husband had remarried andtaken on further responsibilities including children, he could not ordinarily be requiredto maintain his first wife indefinitely and that in such circumstances there could not bea lifetime award. In the view of the Board the Court of Appeal did not there accuratelystate the law. The accurate statement is set out in section 14(4)(g) of the MaintenanceAct set out in para 25 above, namely that any legal obligation of the husband to providesupport for another person is one of the matters, but no more than one of the matters,which the court is required to consider. Section 14(4)(g) reflects the principle in Englishlaw that “although it should not go so far as to give priority to the claims of the firstwife, it should certainly not give priority to the claims of the second wife” (Vaughan vVaughan [2010] EWCA Civ 349, [2011] Fam 46, para 38).

[28] The Board will humbly advise Her Majesty to dismiss the appeal under theMarried Women’s Property Act; but to allow the appeal under the Matrimonial CausesAct, to set aside the dismissal by the Court of Appeal of the wife’s appeal thereunderand, in lieu, to order that her application be reheard by a judge of the Supreme Court.The Board accedes to the wife’s application for an interim order for the reinstatement,with effect only from today, of the order dated 20 October 2000 for the husband to makeperiodical payments to her in the sum of $50,000 per month. In devising the order whichit ultimately makes against the husband for the wife’s further support, the SupremeCourt will no doubt make such allowance for these interim payments as it thinks fit.
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"A very good tool for the busy family lawyer" Solicitors Journal

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