Tattersall v Tattersall

In ancillary relief on divorce, equality of capital is not automatic where resources are tight and the case is driven by needs. The court may allocate more than half to the primary carer where housing and child-related needs require it, provided the other spouse’s needs are also met and child welfare receives first consideration. A judge may assess earning capacity by reference to prior working patterns and realistic future prospects, rather than current reduced income alone. Periodical payments may continue while childcare materially limits earning capacity and reduce when that burden is expected to lessen. A Mesher order is discretionary, and may properly be refused where needs can be met without deferred sale and future conflict or practical difficulty would be avoided.

This was the husband’s appeal against an ancillary relief order made by Her Honour Judge Wright in December 2012 following a judgment dated 28 September 2012. The parties had one young child and several properties, but limited resources and substantial liabilities. The judge awarded the wife approximately 70 per cent of the capital, ordered periodical payments, and refused a Mesher order.

The husband challenged the assessment of the wife’s housing, childcare and earning needs, the assessment of his earning capacity, the combined capital and income order, the treatment of the London property, and the refusal of a Mesher order. The central issue was whether the judge’s approach was outside the proper exercise of her discretion.

Disposition. Lady Justice Black delivered the judgment, with which Lady Justice Hallett and Sir Stephen Sedley agreed. The appeal was dismissed.

1. The appellate court upheld the judge’s findings about the wife’s housing, income and childcare needs. Matters raised for the first time on appeal, without a proper foundation or reliable evidence, could not provide a basis for overturning the order. The same applied to the husband’s newly advanced case about restrictions on his working hours.
2. The judge was entitled to assess the husband’s earning capacity by reference to his previous working pattern and higher income, together with the evidence heard at first instance. The husband’s reduced current hours did not prevent the judge from finding that he could return to his former income, while still having contact with the child.
3. This was essentially a needs case rather than a case turning on an equal division of assets. Under section 25(1) of the Matrimonial Causes Act 1973, first consideration had to be given to the welfare of the minor child. The judge was entitled to give the wife more than half the capital to meet her and the child’s housing needs, while ensuring that the husband’s accommodation, mortgage and other needs could also be met.
4. The periodical payments order was within the judge’s discretion. The date for reducing payments corresponded with the child’s expected move to secondary school, when childcare burdens were likely to lessen and the wife’s career prospects to improve.
5. A Mesher order was discretionary. The judge was not plainly wrong to refuse one where the parties’ needs could be met without deferred sale, and where future conflict, litigation and practical difficulties could thereby be avoided. The considerations recognised in S v B [2005] 1 FLR 474, with reference to B v B (Mesher Order) [2002] EWHC 3106, were relevant but not decisive.

The court also declined to take account of a further communication about the Cambridge property received after the draft judgment.

1. Court of Appeal (Civil Division) In [2013] EWCA Civ 774, the court dismissed the husband’s appeal and upheld the ancillary relief order.
2. Principal Registry of the Family Division Her Honour Judge Wright made the ancillary relief order in December 2012 following a judgment dated 28 September 2012 after a three-day hearing.