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February 24, 2009
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
Judgment
Lord Justice Wilson:
A husband, as it will be convenient to call him notwithstanding the pronouncement of a decree absolute of divorce, applies for permission to appeal to this court and an extension of time in which to do so. In addition to those two hurdles, the husband faces a third: for his proposed appeal to this court would be a second appeal, to which the stiffer criteria for permission, set by CPR 52.13(2), apply. The criteria are either that the appeal would raise an important point of principle or practice or that there is some other compelling reason for this court to hear it.
The husband’s appeal would be against the order of His Honour Judge Sleeman sitting as if in the Reigate County Court on 21 May 2008. On that date the circuit judge dismissed the husband’s appeal against an order for ancillary relief which had been made in that court by District Judge Beck on 19 January 2008. Before both the district judge and the circuit judge the husband and wife each appeared in person. In this proposed appeal the husband has the advantage of representation pro bono both by Miss Spicer of counsel and by Andrew Jackson, Solicitors, Hull.
It was in 1964 that the wife, who is now aged 71, married the husband, who is now aged 68. Their separation occurred on 6 April 2004, when the husband left the matrimonial home. At the time of the hearing before the district judge and perhaps even still today the wife has remained resident there; but it was agreed between the parties that an order should be made that the home be placed on the market for sale and that the net proceeds be divided equally between them. Indeed that agreement was part of a wider agreement which they presented to the district judge, and which in principle he approved, namely that, in that both of them had retired and would be reliant upon pensions for their income, all their capital and all their pensions should be divided equally on a clean break basis in an attempt to achieve total equality not only of capital but also of future income. Although on any appeal each party would of course be entirely at liberty to quarrel with the figures which I have provisionally chosen for the purposes of this judgment, I consider prima facie that the district judge was right to conclude that such total equality required not only his order for the sale of the home and the equal division of its proceeds and not only his pension sharing order but also an order for a small balancing lump sum to be
AI Generated Summary
Wilson LJ of the Court of Appeal considered an application by a divorced husband for permission to bring a second appeal and for an extension of time. The ancillary relief background was unusual for its clarity: before District Judge Beck at the Reigate County Court, the parties agreed to sell their mortgage-free home, split net proceeds equally, and share all capital and pensions equally on a clean-break basis to aim for equal capital and income. Yet the district judge added a £35,356 balancing lump sum, including a £25,000 ‘compensatory’ element for the husband’s higher income since separation and a £10,000 credit to the husband due to the wife’s higher expenditure. The husband’s appeal to HHJ Sleeman was dismissed; notably, the circuit judge obtained and relied on comments from the district judge about the merits. Wilson LJ held that the case raises important principles—potential double-counting, treatment of past expenditure absent dissipation, treatment of spent capital as income, and improper judicial communications—and, despite delay and a trivial sum, granted permission and extended time.