Piglowska v. Piglowski, (1999)
HOUSE OF LORDS
Lord Hobhouse of Wood-borough
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
ON 24 JUNE 1999
I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Hoffmann. For the reasons which he gives I too would allow the appeal and restore the order of the judge.
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hoffmann. For the reasons which he gives I would make the same order as he proposes.
In 1992 Mr. and Mrs. Piglowski were divorced. She applied for an order dividing up the matrimonial assets. There was not a great deal to divide. The former matrimonial home in Ladywell, south-east London, worth about £100,000, where Mrs. Piglowska lives with two student sons. A flat in Spain worth £14,000. Some small insurance policies. Their total value was estimated to be £127,400. But the legal costs which have been expended in deciding how they should be divided are estimated to exceed £128,000. Both sides have been funded by the Legal Aid Board but the Board has a charge on the assets to recover its expenditure and sooner or later will be entitled to enforce it. Something has obviously gone badly wrong. Their Lordships gave leave to bring an appeal not merely because it appeared likely that the Court of Appeal had erred in law but also in the hope that they might be able to reduce the chances of such disasters happening to other people in the future.
My Lords, I can state quite briefly the relevant facts as they were found by the District Judge before whom the application first came and as they are now agreed between the parties. Mr. and Mrs. Piglowski (whom I shall call the husband and the wife) come from Poland. The husband was one year old when the country was invaded in 1939. His family fled and he eventually came to England in 1948 at the age of 10. The wife came shortly before their marriage in 1974. He was then 36 and she was 29.
The husband worked as an architect's draughtsman. The wife, who then spoke no English, worked as a cleaner. They bought the house in Ladywell at the time of the marriage for £16,000. The husband provided £2,000, the wife provided the same amount (which she borrowed from her employers and afterwards repaid) and the rest was borrowed on mortgage. The two sons were born early in the marriage. In those years, the husband paid the mortgage instalments and regular household bills while the wife paid for the food and other housekeeping expenses out of her earnings as a cleaner. In 1984 they bought the flat in Spain for £8,000. It was funded entirely by the wife from savings and borrowings which she repaid with money from her family in Poland. The wife took up sewing and dressmaking to supplement her income. From 1985 she paid half the household bills in addition to the food and housekeeping expenses. From 1986 she also paid half the mortgage instalments. The sons obtained assisted places in private schools and the wife paid the additional fees. The husband was able to save part of his earnings and by April 1990 had £8,500.
In that month, the husband was made redundant. He stopped paying his share of the household bills and in October 1990 he stopped contributing to the mortgage instalments and went off alone to Poland, taking with him the balance of his savings. Since then, he has made no contribution to the household.
In February 1991 the husband returned home but the marriage was damaged beyond repair. In September 1991 the wife petitioned for divorce. The husband took up residence in Poland in the summer of 1992 and obtained a job as an English teacher. A decree absolute was granted on 23 September 1992. In July 1994 he married a divorced Polish lady who lived with her three children in a three-roomed flat in Bialystock. It was crowded but he moved in with them. His new wife had, by Polish standards, a well paid job earning £5,000 a year as deputy Director of a manufacturing enterprise where she had been employed for 17 years. There was evidence that they could obtain more comfortable accommodation in Poland for the expenditure of another £10,000.
The wife' application for ancillary relief came before District Judge Kenworthy-Browne in the Principal Registry of the Family Division on the 10th and 11th July 1996. The evidence and cross-examination of the wife occupied the whole of the first day. The husband and the new Mrs. Piglowska gave evidence on the second day. They had come over from Poland for the hearing. It was the husband's first visit to England for four years but he said in evidence that their intention was to move to England. The wife's counsel invited the District Judge to treat this claim with scepticism because husband had not been able to find any work when had last lived here and his new wife, who spoke no English, would be leaving a good job in Poland with the prospect of only menial employment in England. But the husband said that he had been offered employment by a Polish architect friend who had won a large commission and he was confident that he could make a living.
The District Judge gave a reserved judgment on 7 October 1996. He examined the evidence carefully and said that where it conflicted he preferred that of the wife. But he said:
"I accept the husband's evidence that it is his intention to return here and to try to pick up the threads. This may be unrealistic and unsuccessful. His present wife will lose her employment (though she says its security is in doubt in any event). It may end in disaster. They may be embarking on a wild enterprise. They could obtain more comfortable accommodation in Poland. This is borne out by the evidence of values of flats. The present accommodation is appallingly cramped. But if they want to try their luck here it is a matter for them."
The husband and wife were each asking for an order for the transfer of property under section 24(1)(a) of the Matrimonial Causes Act 1973. The wife wanted to stay in the matrimonial home. She had lived there for over 20 years and although rather run down, it was suitable for her needs and those of her sons. In particular, it had a room for her dressmaking business and was conveniently situated to enable her to call on her customers. The husband wanted it sold so that he could receive half the matrimonial assets to buy a property in England. He suggested that the wife could move into a cheaper property. He produced particulars of houses in south-east London which he had obtained from an estate agent and which were advertised for sale. They were put to the wife in cross-examination. She rejected them all, saying that they were too small or in squalid or distant neighbourhoods. The husband did not put forward any particular property as suitable for his own needs because he said that where he would live would depend upon where he could get a job. The District Judge agreed with the wife that all the properties produced by the husband were "quite unsuitable and not worth considering."
Having found the facts, it was the duty of the District Judge to decide the applications in accordance with section 25(1) and (2) of the Act of 1973:
"(1) It shall be the duty of the court in deciding whether to exercise its powers under section. . . 24. . . above and, if so, in what manner, to have regard to all the circumstances of the case. . . .
(2) As regards the exercise of the powers of the court under section . . . 24 . . . above in relation to a party to a marriage, the court shall in particular have regard to the following matters:
(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, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
(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) any physical or mental disability of either of the parties to the marriage;
(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
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