Brisset v Brisset

Judgment

Lord Justice Wilson:

A husband (as I will call him notwithstanding the pronouncement of a decree absolute of divorce) appeals against an order made in proceedings for ancillary relief by His Honour Judge Sleeman sitting as if in the Reigate County Court on 21 May 2008. The judge’s order was to dismiss the husband’s appeal against an order for ancillary relief made by District Judge Beck dated 10 January 2008. In both courts the husband and the wife (as I will call her) appeared in person. In our court they were represented by Miss Rachel Spicer and Miss Maria Scotland respectively, both of whom appeared pro bono .

We heard the appeal on 30 June 2009. Short though the hearing before us was, the performance of both counsel was outstanding. Indeed the hearing was short because counsel’s submissions, written and oral, were so clear, so succinct and so realistic. At the end we announced our decision, namely to allow the husband’s appeal; and we indicated that we would give our reasons in written judgments, of which Sedley LJ has invited me to deliver the first.

The husband is now aged 69 and the wife is now aged 72. Both are retired. The marriage was celebrated in 1964 and broke down in 2004.

“The parties’ own agreed approach to this case”, said the district judge accurately, “is that their respective capital and income should be divided, as far as possible, in equal shares, so as to ensure that they are, as near as may be, in the same position in retirement”. But they could not entirely agree upon the translation into figures of their agreement in principle that, of course on a clean break basis, the division between them should be equal. They agreed that the matrimonial home, of which the wife remained and still remains in occupation, should be sold and that the net proceeds of sale should be divided equally; and they agreed upon the proportions of a substantial pension sharing order in favour of the wife. They even agreed that equality demanded the payment by the husband to the wife of a balancing lump sum. The disagreement before the district judge was as to its size. In the event the district judge decided that the amount of the lump sum thus payable should be £35,356.

The basis of the husband’s unsuccessful appeal to the circuit judge was to the effect that the lump sum of £35,356 was too high. He made various complaints about the course which the hearing before the district judge had taken but in particular he complained that there had bee