LAW REPORT: Family 'encouraged' to help divorced husband

LAW REPORT: 4 May 1995

Thomas v Thomas.

Court of Appeal (Lord Justice Glidewell and Lord Justice Waite) 2 May 1995.

The court, when redistributing the assets of divorced spouses, can have regard to the potential availability of wealth from sources administered by others and may frame financial provision orders in a form which encourages third parties to enhance the means of the maintaining party without putting improper pressure on the third party.

The Court of Appeal dismissed the husband's appeal against a lump sum and periodical payments order made by Judge Heald sitting in the Nottingham County Court.

The husband and wife, aged 43 and 34, were married in 1980. Their two sons, aged 12 and 9, receive private education. The husband is joint managing director of a successful family business. In 1985 the husband became a name at Lloyd's. The spouses separated in 1992. The wife has no capital. The husband's resources include the family home, valued at £250,000 on which a £78,000 mortgage, a bank guarantee covering contingent liabilities to Lloyd's of up to £100,000 and a Lloyd's losses loan of £43,000 are secured. The husband's pension fund has a current value of £394,000 and his shareholding in the company is worth £600,000. The company's policy is to pay relatively modest salaries and to plough back profits. The husband is paid £2,791 net per month.

Judge Heald decided that the husband could provide an alternative security for the Lloyd's liabilities and his income could be increased at minimal cost to the company. He ordered the sale of the family home and payment by the husband to the wife of a lump sum of £158,000 which was to extinguish all capital claims, periodic payments to the wife for the children's maintenance of £1,500 per month, payment of the boys' school fees and payment of the wife's costs.

The husband appealed on the grounds that (1) without evidence of alternative security, the proper lump sum order would have been for the husband to provide £90,000 from the proceeds of sale of the home for the purchase of the wife's new home, on terms that the husband could mortgage the new property up to £80,000 and pay the mortgage instalments, and that (2) the income award was a breach of the principle of self-imposed constraint on which the court normally acted where the interests of third parties were involved.

Peter Duckworth (Bramleys, Nottingham) for the husband; Christopher Wood (Rupert Bear & Co, Nottingham) for the wife.

LORD JUSTICE WAITE said that the discretionary powers conferred on the court by the Matrimonial Causes Act 1973 to redistribute the assets of spouses were almost limitless.

Certain principles emerged. The court was not obliged to limit its orders exclusively to resources of capital or income which were shown actually to exist. Where a spouse enjoyed access to wealth but no absolute entitlement to it, the court would not act in direct invasion of the rights of or usurp the discretion of a third party. The court would not put upon a third party undue pressure to act in a way which would enhance the means of the maintaining spouse.

That did not mean that the court acted in total disregard of the potential availability of wealth from sources owned or administered by others. There would be occasion when it became permissible for a judge deliberately to frame his orders in a form which afforded judicious encouragement to third parties to provide the maintaining spouse with the means to comply with the court's view of the justice of the case.

In the present case, the court was confronted by a husband with immediate liquidity problems but possessing substantial means. With due regard to the demands of finality in a case where the costs had already reached an alarming figure of £80,000, the judge could not be faulted for making the order in respect of both capital and income.

The order involved a powerful inducement to the extended family to come to the husband's help, but that fell within the bounds of judicious encouragement and well short of placing improper pressure on third parties.


Ying Hui Tan, Barrister

Have you tried new the Independent Digital Edition apps?
ebookA unique anthology of reporting and analysis of a crucial period of history
Arts and Entertainment
Christian Grey cradles Ana in the Fifty Shades of Grey film
filmFifty Shades of Grey trailer provokes moral outrage in US
Life and Style
The veteran poverty campaigner Sir Bob Geldof issues a stark challenge to emerging economies at the Melbourne HIV/Aids conference
Arts and Entertainment
Benedict Cumberbatch and John Malkovich talk Penguins of Madagascar at Comic-Con
comic-con 2014Cumberbatch fans banned from asking about Sherlock at Comic-Con
Arts and Entertainment
Chris Pratt stars in Guardians of the Galaxy
filmGuardians Of The Galaxy should have taken itself a bit more seriously, writes Geoffrey Macnab
Sir Chris Hoy won six Olympic golds - in which four events?
Life and Style
People may feel that they're procrastinating by watching TV in the evening
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Trainee Recruitment Consultants - Banking & Finance

£20000 - £25000 per annum + OTE £40,000: SThree: SThree Group have been well e...

Graduate Recruitment Resourcers - Banking Technologies

£18000 - £25000 per annum + OTE £40,000: SThree: Huxley Associates are looking...

Implementation Engineer

£150 - £200 per day: Orgtel: Implementation Engineer Hampshire / London (Gre...

Trainee Recruitment Consultant - Pharmacuetical

£20000 - £25000 per annum + OTE £40,000: SThree: Real Staffing, one of the UK'...

Day In a Page

Backhanders, bribery and abuses of power have soared in China as economy surges

Bribery and abuses of power soar in China

The bribery is fuelled by the surge in China's economy but the rules of corruption are subtle and unspoken, finds Evan Osnos, as he learns the dark arts from a master
Commonwealth Games 2014: Highland terriers stole the show at the opening ceremony

Highland terriers steal the show at opening ceremony

Gillian Orr explores why a dog loved by film stars and presidents is finally having its day
German art world rocked as artists use renowned fat sculpture to distil schnapps

Brewing the fat from artwork angers widow of sculptor

Part of Joseph Beuys' 1982 sculpture 'Fettecke' used to distil schnapps
BBC's The Secret History of Our Streets reveals a fascinating window into Britain's past

BBC takes viewers back down memory lane

The Secret History of Our Streets, which returns with three films looking at Scottish streets, is the inverse of Benefits Street - delivering warmth instead of cynicism
Joe, film review: Nicolas Cage delivers an astonishing performance in low budget drama

Nicolas Cage shines in low-budget drama Joe

Cage plays an ex-con in David Gordon Green's independent drama, which has been adapted from a novel by Larry Brown
How to make your own gourmet ice lollies, granitas, slushy cocktails and frozen yoghurt

Make your own ice lollies and frozen yoghurt

Think outside the cool box for this summer's tempting frozen treats
Ford Fiesta is UK's most popular car of all-time, with sales topping 4.1 million since 1976

Fiesta is UK's most popular car of all-time

Sales have topped 4.1 million since 1976. To celebrate this milestone, four Independent writers recall their Fiestas with pride
10 best reed diffusers

Heaven scent: 10 best reed diffusers

Keep your rooms smelling summery and fresh with one of these subtle but distinctive home fragrances that’ll last you months
Commonwealth Games 2014: Female boxers set to compete for first time

Female boxers set to compete at Commonwealth Games for first time

There’s no favourites and with no headguards anything could happen
Five things we’ve learned so far about Manchester United under Louis van Gaal

Five things we’ve learned so far about United under Van Gaal

It’s impossible to avoid the impression that the Dutch manager is playing to the gallery a little
Screwing your way to the top? Good for Lana Del Rey for helping kill that myth

Screwing your way to the top?

Good for Lana Del Rey for helping kill that myth, says Grace Dent
Will the young Britons fighting in Syria be allowed to return home and resume their lives?

Will Britons fighting in Syria be able to resume their lives?

Tony Blair's Terrorism Act 2006 has made it an offence to take part in military action abroad with a "political, ideological, religious or racial motive"
Beyoncé poses as Rosie the Riveter, the wartime poster girl who became a feminist pin-up

Beyoncé poses as Rosie the Riveter

The wartime poster girl became the ultimate American symbol of female empowerment
The quest to find the perfect pair of earphones: Are custom, 3D printed earbuds the solution?

The quest to find the perfect pair of earphones

Earphones don't fit properly, offer mediocre audio quality and can even be painful. So the quest to design the perfect pair is music to Seth Stevenson's ears
US Army's shooting star: Lt-Col Steven Cole is the man Hollywood calls when it wants to borrow a tank or check a military uniform

Meet the US Army's shooting star

Lt-Col Steven Cole is the man Hollywood calls when it wants to borrow a tank or check a military uniform