Peterson v Peterson

• Jurisdiction: Trinidad & Tobago
• Judge: Persaud, J.
• Judgment Date: 21 March 1983
• Neutral Citation: TT 1983 HC 24
• Date: 21 March 1983
• Court: High Court (Trinidad and Tobago)
• Docket Number: No. M–679 of 1976

High Court

Persaud, J.

No. M–679 of 1976

Peterson

and

Peterson

Appearances:

Allan Alexander, S.C. for petitioner.

Respondent in person.

Family law - Husband and wife — Divorce — Maintenance — Respondent ex-husband ordered to provide applicant with a lump sum payment of $175,000.

Persaud, J.

1 Before me is an undated application filed on the 26th June, 1979 in which the applicant/wife seeks an order against the respondent/husband fort and I quote from the application:–

• “(a) Periodical payments by way of maintenance for herself (the applicant) and for the children of the family, namely Joanne and Curtis;

• (b) Lump sum;

• (c) Secured periodical payments;

• (d) Transfer of property”.

2 In view of the fact that the husband has since remarried, it would be more appropriate to refer to him as the respondent and the wife or rather the ex wife as the applicant hereinafter. It is a matter of regret that an action subsidiary to the main petition was allowed to languish for as long as it has. It is a matter for regret also that, as a result of the respondent being unable, for whatever reason, to make satisfactory arrangements for his legal representation, this court has been deprived of the benefit of proper cross-examination of the applicant, and of address by counsel. Mr. Alexander who appeared for the applicant, while cross-examining the respondent, and no doubt holding the view that he ought not to take undue advantage of the situation, declined to address the court. He however submitted the authorities upon which he relied, and I am grateful to him for so doing. Needless to says the respondent was unable to cross-examine the applicant with the dexterity of counsel, nor could he formulate an address of any sort to the court. Learned counsel's lofty ideals have succeeded in depriving me of the assistance to which I believe I am entitled. As a result, the preparation of this decision has been made infinitely more arduous and time consuming than it ought to have been.

3 It has not been so stated on the face of the notice which now engages my attention, nor was it possible for me to be informed in the addresses, as there was none as I have already explained, but it would appear that this application is brought under what are now sections 24 and 25 of the Matrimonial Proceedings and Property Act (Chap. 45ò51) and rule 52 of the Matrimonial Causes Rules. Section 27 of the Act, which is similar in terms to section 25 of the Matrimonial Causes Act 1973 (U.K) prescribes the matters which the court must take into account in making an order under section 24 (which includes a lump sum order) and concludes in the following words –

“and so to exercise those powers as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other”.

4 The matters which the court is enjoined to take into account relevant to these proceedings are –

• “(a) the income, earning capacity property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

• (b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

• (c) the standard of living enjoyed by the family before the breakdown of the marriage;

• (d) the age of each party to the marriage and the duration of the marriage;

• (e) x x x x x x

• (f) contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family”.

5 When this matter was first called before me on the 12th July, Mrs. Roberts, who then appeared for the applicant, informed the court that the applicant was seeking maintenance for the two children Joanne and Curtis and a lump sum payment, and so I propose to deal with this matter under those two heads only. But before examining the evidence, such as it is, perhaps it will be more convenient to examine the cases in an endeavour to extract the principles which govern these matters. I have already indicated that our Act (Chap.45:51) is substantially in the same terms as the English Act, so that a consideration of the English cases would of course be of great assistance.

6 Lump sum payment

7 I start by referring to the admonition of Denning, Mr. in Trippas v. Trippas ([1973] 2 All E.R.1) to the effect that the United Kingdom Acts of 1969 and 1970 have revolutionised the law in regard to applications of this nature; that there is no point going back to the earlier cases baled on the earlier Acts but that the proper approach was to take the new Acts and the guideline stated in Wachtel v. Wachtel ([1973] 1 All E.R. 1007) and build on those. Lord Denning was then dealing with counsel's proposition that a lump sum was only to be used as substitute for periodical payments, the support for which proposition was being sought from the dictum of Wilmer, L.J. in ( Brett v. Brett [1969] 1 All E.R. 1007 at 1012). But with the greatest of respect, I do not understand Lord Denning to have been rejecting all the principles which were settled in the earlier cases. To give one example. In Davis v. Davis ([1967] 1 All E.R. 123), Wilmer, L.J. is recorded as saying step. 126 –

“As a practical matter, it is clear that an order for a lump sum payment can only properly be made against a husband possessed of sufficient capital as, to justify it”.

8 In Wachtel v. Wachtel (supra) Lord Denning said (at p.840 ibid) –

“One thing is however, obvious. No order should be made for a lump sum unless the husband has capital assets out of which to pay it — without crippling his earning power”.

9 This principle was echoed by Cairns, L.J. in Martin v. Martin ([1976] 3 All E.R. 625) when he said that it would be wrong to allow an order to stand which it does not appear the respondent has any prospect of paying.

10 Another example of some of the old principles not losing their force in the general pattern described in the various judgments is this, As long as 1928 in N. v. N. ([1928] All E.R. Rep.462), Lord Merrivale is recorded as saying (at p, 466 – 467 ibid) –

“I conceive that I must take into consideration the position in which she was entitled to expect herself to be and would have been, if her husband had properly discharged his marital obligation”.

11 This test was adopted in Brett v. Brett ([1969] 1 All E. R. 1007) by Wilmer, L.J. who explained that ‘his marital obligation must mean the husband's obligation to maintain his wife on the scale appropriate to his station in life.

12 In Preston v. Preston ([1982] 1 All E. R.41) Ormrod, L.J. referred to Lord Merrivale's dictum cited above not expressing any dissent therefrom. In the latter case Brandon, L.J. did not disagree with the statement of the law as described by the judge of first instance when he said

“If the marriage had not broken down the wife could have expected to share in the realisation of the husband's business. These are the important aspects of the case in my view and I have to exercise my powers to place the parties so far as is practicable in the financial position in which they would have been if the marriage had not broken down, and each party had properly discharged his or her financial obligations and responsibilities towards the other”.

13 More or less the same thought was expressed by Wilmer, L.J. in Davis v. Davis (Supra) when he stated at p.127 (ibid) as follows

“If the wife has been accustomed during the marriage to live in a luxuriously appointed house, I think that she is entitled to ask for a lump sum payment of such an amount as will provide her with a standard of living commensurate with that to which she has been accustomed. I use the word ‘commensurate’, for it must be obvious that she can hardly expect exactly equivalent accommodation; it would not be ‘reasonable’ to award enough for that”.

14 “Reasonable” was the term used in the 1965 United Kingdom Act. Now ‘just’ appears in the 1970 Act as it does in our Act (Chap. 45:51), In fact section 27 of our Act sets down the various matters to which the court must have regard when deciding whether to make a lump sum order and, as I have already noted, ends with the passage quoted at the commencement of this judgment.

15 Another matter which deserves mention is whether the conduct of the parties should be taken into account. It is apparent that before Wachtel v. Wachtel (supra) the conduct of the parties prior to the divorce proceedings was taken into account. For instance in Davis v. Davis (supra) Wilmer, L.J. was disposed to-award the wife more than that which was in fact awarded but for her misconduct in living with another man while still married to the husband. Out in Wachtel v. Wachtel Lord Denning, while conceding that there would be a residue of cases where to order one party to support another whose conduct was so obvious and wrong would be repugnant to one's sense of justice, a party's conduct leading up to the divorce should not be taken into account in awarding a lump sum payment. There should be no ‘discount’ or ‘reduction’ because of a party's supposed misconduct, guilt or blame. So that when in Trippas v. Trippas (supra) Scarman, L.J. expressed the view that not only must the court have regard to the past but it must also have regard to the present and the future when considering all the circumstances of the case, he was referring to the financial situation of the parties. And in Martin v. Martin (supra) Cairns, L.J. dealt with the same question in this manner (at p.629 ibid)

“Another question which arose was whether the husband's conduct in relation to the financial matters after the separation was...