JANET PATRICIA MOSS v. PATRICK RONALD MOSS AND ANOTHER

IN THE COURT OF APPEAL

1992, No 145
(Civil)

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J U D G M E N T

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Kempster, J.A.:

1. This is the judgment of the Court on an appeal, brought by a respondent husband in part by leave of the judge and in part by leave of this Court, from the judgment given on the 7th and order made on 12 August 1992 by HH Judge Surman in proceedings ancillary to a petition for the dissolution of a marriage. Judgment and order provided (inter alia) that the respondent should transfer to his petitioning wife, not later than the pronouncement of decree absolute, his interest and estate in a villa situated in the Algarve, Portugal, together with the contents and, as from such pronouncement, pay to her the monthly sum of ￡1,725 together with a lump sum of ￡40,000. In turn the judgment and order provided that the petitioner should transfer to the respondent her interest and estate in an apartment and in a caravan respectively situated in the Algarve and on the banks of the Thames at Bablockhythe together with the contents of each. The respondent was ordered to pay the costs and disbursements occasioned by the transfers of property.

2. A reduction in the provisions for periodic and lump-sum payments is sought and, by late amendment of the Notice of Appeal, the propriety of the order relating to the villa is put in question albeit no consequential order is proposed. It is accepted that since August the rate of exchange has moved to the respondent's advantage.

3. The parties were married on 11 September 1965 in Somerset; the respondent being some nine years younger than the petitioner. According to her affidavit sworn on 5 March 1992 the respondent's economic contribution to the household was, at that stage, a radio, a book-case which was a wedding present from his parents and an overdraft. Such a predicament is not unusual for a young man at the outset of his professional career. The respondent had just qualified as a solicitor. The petitioner, on the other hand, had been a secretary in the firm where the respondent served his articles and had a son and some money deriving from an earlier, recently dissolved, marriage.

4. The relative economic balance between the parties rapidly tilted in favour of the respondent who became a partner in a firm in Banbury. By 1971 they owned a bungalow in Adderbury and each possessed a motor-car. A daughter had been born to them in October 1966 and the petitioner's energies were directed to her and to her son's upbringing, to housekeeping and to the improvement and maintenance of the property. The daughter is now independent and does not feature in the calculations put before the Court. The son received fatal injuries in a motor-cycle accident during November 1977.

5. In 1976 the respondent was appointed a Legal Aid Officer in Hong Kong and in due course Director of Legal Aid. That appointment terminated during December 1992 and he is now employed by the Hong Kong Law Society. He expects to marry the second respondent, who is a member of the Bar. The petitioner, who has worked as a Court Reporter during her time in the Colony, plans to live in the villa in the Algarve and, having regard to her age and state of health, cannot reasonably be expected to find gainful employment there. Doing our best to appreciate the way the matter was argued before the judge it appears, despite a tentative suggestion that the petitioner should live in a smaller place, to have been accepted that she was to make her home in the villa rather than to use it as a source of income or of capital appreciation. Such possibilities were not explored and we cannot speculate on the factors involved. No more were the measures whereby the benefit of any order might strictly be limited to the petitioner's life-time canvassed. For example, no suggestion of a life interest in the villa was made. The parties separated in late-1988 and the decree-nisi of divorce was pronounced on 20 February 1992.

6. It has not been feasible to make such financial arrangements, the purchase of an annuity for example, as would allow of a "clean break" and the parties are unable to agree on the scale of provision to be made for the petitioner on any other basis. Thus, unhappily but not unusually, costs have been and are being incurred and the net assets available to the parties proportionately reduced. Accepting the normal vicissitudes of life and the political uncertainties of Hong Kong the respondent, in contrast to the petitioner, has a reasonable prospect of earning a good income for many years.

7. Judge Surman had the advantage of viva voce evidence from the parties as well as their affidavits in providing him with a detailed picture of their resources. He found that as from the beginning of 1993 the respondent would be earning $71,400 per month net of tax and, as already indicated, the petitioner nothing. She will be living in her own home in Portugal but the respondent will have to rent accommodation in Hong Kong although the apartment will be available for him in Portugal and the caravan in England. These he may use to produce income or for holidays or both.

8. Prior to making his orders for the transfer of property the judge also found the respondent's net assets to amount to $4.1 million, those of the petitioner to $687,000 and joint property to $3.1 million; making $7.9 million in all. Mr Ching QC, for the respondent, contended that the joint property was not beneficially so held. We were shown no evidence in support of this submission. The judge then directed himself that "the main emphasis must be upon needs and especially the need to provide homes for those concerned" and that he was required by s 7(1) of the Matrimonial Proceedings and Property Ordinance (Cap 192) "to have regard to all the circumstances of the case" including all the matters canvassed in (a) to (g) of the subsection. Having done so the judge concluded that, following over 20 years' cohabitation in which the petitioner had made a substantial contribution to the marriage by her earnings, by her care of the children and by running a home and being now in less than robust health and without earning capacity, she would need financial support from the respondent to maintain a standard of living reflecting, insofar as their joint resources would allow, that enjoyed by them in Hong Kong. Brett v Brett [1969] 1 WLR 487 at p 493. Guided then by the decision of the English Court of Appeal in Wachtel v Wachtel [1973] Fam 72 he approached his task by calculating the value of one-third of the combined resources of the parties as regards income and capital and, assessing their respective needs, in the exercise of his discretion made the orders which are presently challenged. On analysis he awarded the petitioner nearly half of the joint capital and one-third of the income of the parties; effectively that of the respondent.

9. As, after reference to English authority, it was pointed out by this Court as recently as 1 October last in Murphy v Murphy Civil Appeal No 56 of 1992 (Unreported) at pp 8 and 9 it will not intervene to quash or vary orders such as those with which we are presently concerned unless the judge demonstrably misapprehended the facts, exercised his discretion upon a wrong principle or must be deemed to have done so because his orders are so plainly wrong. These constraints have been expressed in a variety of ways. In our opinion no wrong principle or misapprehension as to facts vitiated the orders made in the instant case and their effect was not plainly wrong. In the circumstances there is no call for a more detailed examination of the figures revealed by the evidence.

10. The judge's awareness of the respondent's liabilities for tax and for transfer and legal costs is demonstrated by his references to gross and net figures for income and assets and by the terms of the relevant orders; which were not relied upon to reduce the quantum of periodical payments or of the lump-sum to be ordered. He saw bank accounts used by the respondent to make provision for his annual tax liability. As regards the provision of reasonable accommodation for the respondent in Hong Kong the judge said:

"... he too must be left with sufficient to provide himself with a roof over his head ... The main emphasis must be upon needs and especially the need to provide homes for those concerned ... Each must have a roof over their (sic) head ... I have to try and ensure when dividing the assets that the standard of living enjoyed in the past is kept in mind ... I take into account that the husband will at sometime have to buy a home of his own, the financing of which may become more difficult with age, the high expense of renting of property in Hong Kong and the other matters submitted by counsel."

Patently this was a factor which he took into account. There was no evidence that the respondent regarded the small flat in Jaffe Road which he occupied at a rental of $10.000 per month as "inferior".

11. The diminution of the respondent's income and the impairment of his consequent capacity to make periodical payments which would result from disbursement of the lump-sum were matters appreciated by Judge Surman as shown by a passage in his judgment which reads:

"The Respondent's net earnings, with effect from his new post, will be $83,668 providing his various assets on which he earns interest stay intact."

After tax the respondent will have $71,400 from his salary alone with which to pay the monthly allowance of $21,157; even assuming the present rate of $12.09 to the pound sterling is maintained.

12. Turning to the complaint that it was contrary to principle to take into account the fact that, were the respondent to remarry, his new wife would be no financial burden to him, authority points the other way. Macey v Macey (1982) 3 FLR 7 at p 13. We do not find that the judge went further than this. Further, the contention that the order for periodical payments was in excess of the petitioner's needs is not sustainable since the monthly figure of $1,725 awarded exactly matched the total which she reached in her unchallenged computation of expenses; quite apart from the 17 per cent purchase tax newly imposed in Portugal.

13. Finally, as the respondent conceded in the course of his oral testimony, the judge was entitled to take into account the value of the respondent's assets as at the date of his determination. Dennis v Dennis [1976] 6 FLR 55. This ground was not pursued before us.

14. We dismiss the appeal and make an order nisi that the petitioner should have the costs.