Aggett v Aggett
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOLROYD PEARCE,LORD JUSTICE DAVIES |
| Judgment Date | 06 December 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J1206-6 |
| Court | Court of Appeal |
| Date | 06 December 1961 |
[1961] EWCA Civ J1206-6
In The Supreme Court of Judicature
Court of Appeal
Revised
Lord Justice Holroyd Pearce
Lord Justice Davies
MR. J.A.S. HALL (instructed by Messrs Stafford Clark & Co., Agents for Messrs. Gill, Akaster, Leest & Russell (Devonport, Plymouth)) appeared on behalf of the Appellant (Petitioner).
MR. J.S. EDWARDS (instructed by Messrs Waterhouse & Co., Agents for Messrs. Foot & Bowden (Plymouth)) appeared on behalf of the Respondent (Respondent).
: The wife Petitioner appeals from an Order of Mr. Justice Marshall upholding the Order of the Deputy Registrar who dismissed her application for secured maintenance.
The parties were married in 1942. The husband is a so-called boat builder at Sercombe, although his earnings from that are very small. There is one child, a girl born in 1943. She is now a student aged 18, living with the wife. The husband has eked out his trivial earnings as a boat builder by taking trippers in his motorboat and taking other small jobs out of season. In all he earns about £500 to £600 per annum.
In 1957 he bought a house, "Tideways", as the matrimonial home. He paid £1,500 for it; pound 500 in cash, £500 he borrowed on a. Building Society mortgage, and £500 he borrowed from his father. Since then the wife has carried on a guest house there. This venture was so successful that the Building Society mortgage has been paid off. Therefore there is now owed in respect of the house only the £500 borrowed from the husband's father.
In 1959 the husband left the home. The marriage had been unhappy since 1947 owing tab the husband's open association with other women and various acts of cruelty in the home.
In 1960 the wife filed a Petition for divorce on the grounds of cruelty. It sets out the details of the husband's conduct with five named women. Before the Petition, the husband had threatened to turn his wife and child out of the matrimonial home; so at the same time as she filed her Petition the wife made an application under Section 17 of the Married Women's Property Act for a declaration that the was joint owner with the husband of the house and furniture. She also asked for an interlocutory injunction to atop him turning her out pending the application. There were further proceedings about that before Mr. Justice Marshall, and the husband then gave an undertaking pending the hearing of the summons under Section 17 not to turn the wife out of the house. In May 1960 that summons was heard by the Deputy Registrar. He found that the husband was the sole owner of the house and that the wife and husband jointly owned the furniture. In July, 1960, the divorce case was heard undefended and a decree nisi was pronounced with an order for costs. None of those costs have been paid.
On the 11th October, 1960, the wife took out a summons for permanent maintenance. That summons also claimed that there should be secured provision in favour of the wife. On the 20th December, 1960, Mr. Registrar Hubbard heard the summons and ordered that maintenance at the rate of £104 per annum should be paid monthly, on the basis that the wife lived rent and rates free, making her living from paying guests. Nothing was said in that Order about secured provision. Counsel, whose recollections naturally I entirely accept, are not agreed on what transpired before the Registrar. On the husband's behalf it is said that secured maintenance was sought and that the Registrar held against it. On the other side it is thought that the claim for secured maintenance was not really pursued. Be that as it may, the Order is silent on the subject of secured maintenance and does not dismiss the claim for it.
About a month after that decision, namely on the 28th January, 1961, the wife was given notice to quit by the husband's Solicitors. On the 24th February, 1961, she issued afresh summons asking for secured maintenance, secured on the house, in order to protect her position. On the 17th March, 1961, Mr. Registrar Dobell dismissed that summons, holding that the matter was res judicata.
On the 18th April this dismissal was upheld by the learned Judge who expressed the view that this was not a case where secured maintenance should be given. He dealt with two other objections to the wife's claim which have been raised before us on this appeal also, but in substance his dismissal of the case was founded on his view that in the circumstance it was not a case for ordering secured maintenance. He took the view that there had been no change of circumstances since the Registrar made the Order of the 20th December, 1960, because by the date of that hearing the wife had had full notice that the husband was intending to turn her out of the house.
On the 17th September, 1961, the husband obtained in the County Court a possession order in respect of the house whereby the wife had to leave in two months. That period expired on November 17th. The husband is intending to issue a warrant to enforce his right to possession, but his Solicitors have very properly persuaded him to hold his hand until the hearing of this appeal.
The general ground on which the wife claims that she should be given secured maintenance is that she is a woman of middle age who has had no training for any occupation from which she can earn her living; she is solely dependent on the earnings from her guest house and the goodwill that she has been starting to build up; the husband has no assets save the guest house; and he has shown himself regardless of his wife's wellbeing and determined to oust her from her means of living. It is also said that he is feckless and irresponsible and hostile to the wife and child, and that she reasonably fears that once he gets possession of the house he will sell it and go to the United He States, where/has been twice before, leaving her with no means of support whatever. As against that, it is argued on behalf of the husband that he has paid his alimony regularly, and that there is no reason why one should not believe his assertions that he has no intention of going permanently to the United States, although he may well do so temporarily. It is contended that there is reason to suppose that he will honor his maintenance obligations.
There are three points to be decided. The first is the question whether technically the wife is prevented from...
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