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Home > Judgments > 2006 archive

Klamer v Klamer [2006] EWCA Civ 690

This is an application by the wife for a second appeal concerning the division of assets in favour of the husband after a short marriage. The application was refused.

The assets were divided in such a way as to leave the husband with infinitely greater financial security after a marriage lasting less then 5 years. Counsel for the wife contended that there was a disparity of outcome between husband and wife and that there were important points of principle, drawing attention to the cases of Parra v Parra and Miller v Miller. It was held that a diversity of income could be fair or not unfair given the circumstances of the case. Therefore, it could not be an issue of principle or practice or a compelling reason for the grant of permission following s55 of the Access to Justice Act 1999. Also, it was held that the case was easily distinguishable from Parra, and, apart from the marriage being short, distinguishable from Miller.

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B4/2006/0334 & B4/2006/0335

Neutral Citation Number: [2006] EWCA Civ 690

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION

(MR JUSTICE BENNETT)

Royal Courts of Justice

Strand

London, WC2

Tuesday, 2nd May 2006

B E F O R E:

LORD JUSTICE THORPE

-------------------------------

YVETTE KLAMER CLAIMANT/APPLICANT

- v -

JOHN MICHAEL KLAMER DEFENDANT/RESPONDENT

--------------------------------

(DAR Transcript of

Smith Bernal Wordwave Limited

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THE APPLICANT APPEARED IN PERSON.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

J U D G M E N T

(As Approved by the Court)

Crown copyright©

1. LORD JUSTICE THORPE: This application reveals a particularly sad story. The applicant, Mrs Klamer, is approximately 57 years of age. The respondent's husband, as I will call him, is some two years younger. They married on 18 August 1999 and Mrs Klamer at that stage had behind her two unsuccessful, and probably unhappy, marriages. This was her third attempt. She had no children, nor did her chosen third husband. So for each of them it was a marriage comparatively late in life which held the prospect of loving companionship over the years ahead, years of retirement, years of old age, possibly years of illness. But it was not to be.

2. The commitment that success demanded seemed not to have been there on either side. The marriage was not consummated and there were difficulties about establishing a shared home. The parties are comparatively well off. A property at 149 Hampstead Way NW11 was bought purposefully as a home and it cost some £342,000. It is now apparently worth some £650,000. There is a flat in Bournemouth, which is worth approximately £260,000, subject to a commercial mortgage in the sum of £25,000.

3. The husband has inherited on his side and there is a question as to whether the wife has inherited or will inherit something as a result of the death of her mother. The husband had retired from service in the Royal Mail and had an income by way of pension in the comfortable sum of £7,284 a year. The wife had negligible pension benefits, possibly about £1,200 a year net from her former work life.

4. The case was, sadly, very hotly contested. First there were contested divorce proceedings, which were ultimately compromised, and a decree nisi resulted on 1 April 2004, but sadly there were hotly contested ancillary relief proceedings. The heat of the contest resulted from cross-allegations of conduct, each seeking to persuade the court that the other had been guilty of misconduct of a proportion that it would be inequitable to disregard.

5. The case was tried by an experienced district judge, District Judge Redgrave, and she gave her judgment on 21 December 2004. She, although critical of both parties, was more critical of the wife than the husband. She made clear findings as to their respective personalities and characteristics. She made clear findings as to the reliability of their oral evidence. Neither escaped criticism but the criticisms of the wife were more substantial than those of the husband.

6. The district judge divided the assets in such a way as to leave the husband with infinitely greater financial security, but then the husband had been the greater financial contributor to the shared economy. She also condemned the wife in a proportion of the husband's costs.

7. The wife had a right of appeal. Since the case had been heard in the principal registry, the appeal lay to a judge of the Family division and it was listed before a judge of great experience, Bennett J, who gave a judgment dismissing the appeal on 26 May 2005. The notice to this court for permission to appeal his order was, I think, not filed until 21 February 2006, and that notice has subsequently been amended with the leave of the deputy master.

8. Now basic principles must be applied to the application. The trial was before the district judge; the district judge is the only judge who has seen and heard the parties testify and she has given clear conclusion as a consequence of her impressions. There has been an appeal and that appeal has been fully considered by Bennett J.

9. The possibility of a second appeal to this court is a very restricted possibility, following the enactment of section 55 of the Access to Justice Act 1999. That section prohibits this court from granting permission for a further appeal, unless there is some important point of law or practice or some other compelling reason to grant permission; that is a formidable hurdle which Mr Harris, who has argued Mrs Klamer's application this morning, has fully recognised.

10. Mr Harris appears to assist Mrs Klamer, as he did before Bennett J, and the judgment below records the full and careful submissions which he made almost a year ago. I also record the clear, lucid and attractive presentation which Mr Harris has advanced this morning. He has emphasised the disparity of outcome between husband and wife at the end of the proceedings. That in itself cannot be an issue of principle or practice, nor can it in itself be a compelling reason for the grant of permission. There are many cases in which a remarkable diversity of outcome is still fair, or not unfair, given the overall circumstances of the case.

11. So Mr Harris has sought to suggest that there are important points of principle, as he identifies them in paragraphs 30 to 35 of the Amended Grounds of Appeal. Mr Harris draws attention in this court, as he did below, to the decision in Parra. However, as Bennett J rightly held, that case is easily distinguishable upon its facts. The essential characteristic of Parra v Parra was that the parties had effectively initiated a community of property regime as the basis for their union.

12. Mr Harris then draws considerable attention to the decision of this court in Miller v Miller. Now, the only thing that this case shares with Miller v Miller is the duration of the marriage; all other aspects of the case are readily distinguishable. What this court decided in Miller was to uphold a discretionary decision of the judge below, which was unsatisfactorily explained; that rescue of the result in the Family Division has obviously been stringently criticised by counsel for the appellant in the House of Lords, and the decision of their Lordships is still unannounced, but I cannot see anything within the territory of existing decisions on short marriage cases that can be elevated to justify this court admitting to full argument the present case.

13. There has to be proportionality in any decision, even a decision that is taken under section 55. The sadness of this case would only be perpetuated were I today to sanction yet another elaborate and expensive run of litigation between this couple now approaching retirement age and each the victim of a very unhappy marital experience.

14. So I am in no doubt at all that the application fails. I refuse it and I thank Mr Harris for his presentation. Nobody could have said more that he said and nobody could have said it more attractively in support of a difficult application.

Order: Application refused.