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.

LORD JUSTICE GLIDEWELL concurred.

Ying Hui Tan, Barrister

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksAn introduction to the ground rules of British democracy
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
SPONSORED FEATURES
Independent Dating
and  

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

iJobs Job Widget
iJobs General

Recruitment Genius: Technical Author / Multimedia Writer

Negotiable: Recruitment Genius: This recognized leader in providing software s...

Recruitment Genius: Clinical Lead / RGN

£40000 - £42000 per annum: Recruitment Genius: This is an exciting opportunity...

Recruitment Genius: IT Sales Consultant

£35000 - £40000 per annum: Recruitment Genius: This IT support company has a n...

Recruitment Genius: Works Engineer

Negotiable: Recruitment Genius: A works engineer is required in a progressive ...

Day In a Page

Isis profits from destruction of antiquities by selling relics to dealers - and then blowing up the buildings they come from to conceal the evidence of looting

How Isis profits from destruction of antiquities

Robert Fisk on the terrorist group's manipulation of the market to increase the price of artefacts
Labour leadership: Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea

'If we lose touch we’ll end up with two decades of the Tories'

In an exclusive interview, Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea
Tunisia fears its Arab Spring could be reversed as the new regime becomes as intolerant of dissent as its predecessor

The Arab Spring reversed

Tunisian protesters fear that a new law will whitewash corrupt businessmen and officials, but they are finding that the new regime is becoming as intolerant of dissent as its predecessor
King Arthur: Legendary figure was real and lived most of his life in Strathclyde, academic claims

Academic claims King Arthur was real - and reveals where he lived

Dr Andrew Breeze says the legendary figure did exist – but was a general, not a king
Who is Oliver Bonas and how has he captured middle-class hearts?

Who is Oliver Bonas?

It's the first high-street store to pay its staff the living wage, and it saw out the recession in style
Earth has 'lost more than half its trees' since humans first started cutting them down

Axe-wielding Man fells half the world’s trees – leaving us just 422 each

However, the number of trees may be eight times higher than previously thought
60 years of Scalextric: Model cars are now stuffed with as much tech as real ones

60 years of Scalextric

Model cars are now stuffed with as much tech as real ones
Theme parks continue to draw in thrill-seekers despite the risks - so why are we so addicted?

Why are we addicted to theme parks?

Now that Banksy has unveiled his own dystopian version, Christopher Beanland considers the ups and downs of our endless quest for amusement
Tourism in Iran: The country will soon be opening up again after years of isolation

Iran is opening up again to tourists

After years of isolation, Iran is reopening its embassies abroad. Soon, there'll be the chance for the adventurous to holiday there
10 best PS4 games

10 best PS4 games

Can’t wait for the new round of blockbusters due out this autumn? We played through last year’s offering
Transfer window: Ten things we learnt

Ten things we learnt from the transfer window

Record-breaking spending shows FFP restraint no longer applies
Migrant crisis: UN official Philippe Douste-Blazy reveals the harrowing sights he encountered among refugees arriving on Lampedusa

‘Can we really just turn away?’

Dead bodies, men drowning, women miscarrying – a senior UN figure on the horrors he has witnessed among migrants arriving on Lampedusa, and urges politicians not to underestimate our caring nature
Nine of Syria and Iraq's 10 world heritage sites are in danger as Isis ravages centuries of history

Nine of Syria and Iraq's 10 world heritage sites are in danger...

... and not just because of Isis vandalism
Girl on a Plane: An exclusive extract of the novelisation inspired by the 1970 Palestinian fighters hijack

Girl on a Plane

An exclusive extract of the novelisation inspired by the 1970 Palestinian fighters hijack
Why Frederick Forsyth's spying days could spell disaster for today's journalists

Why Frederick Forsyth's spying days could spell disaster for today's journalists

The author of 'The Day of the Jackal' has revealed he spied for MI6 while a foreign correspondent