Bosworthick v Bosworthick

JurisdictionEngland & Wales
CourtCourt of Appeal

Divorce - Variation of post-nuptial Settlement - Guilty Husband - Bond by Wife to secure present Payment of Annuity to Husband - Bond discharged - Matrimonial Causes Act, 1859 (22 & 23 Vict. c. 61), s. 5 - Supreme Court of Judicature (Consolidation) Act, 1925 (15 & 16 Geo. 5, c. 49), s. 192.

By a bond executed by her in 1902, a wife, married in 1897, secured to her husband an immediate annuity of 300l. for his life. The marriage was dissolved in 1925, on the petition of the wife, who then applied for an order extinguishing her liability under the bond:—

Held, that a liberal interpretation according to their obvious purpose must be given to s. 5 of the Matrimonial Causes Act, 1859, and s. 192 of the Supreme Court of Judicature (Consolidation) Act, 1925, and that although the bond did not involve the settlement of property, or a charge on property, for successive interests, it nevertheless amounted to a post-nuptial settlement within the meaning of those sections, and that the Court had power, consequent upon the dissolution of the marriage, to deal with the bond and discharge it.

Dormer v. Ward [1901] P. 20 applied.

Decision of Lord Merrivale P. [1926] P. 159 affirmed.

APPEAL from Lord Merrivale P.F1

A wife married in 1897, and possessing a life interest in considerable property under a settlement made by her uncle and his will, by a bond, dated December 23, 1902, secured to her husband an immediate annuity of 300l. for life, and by a deed poll dated January 30, 1903, appointed to him a reversionary annuity, expectant on her death, of 600l.

On January 12, 1925, the marriage was dissolved on the wife's petition on the ground of her husband's adultery. The wife then petitioned for an order extinguishing her liability under the bond and her husband's interest under the appointment. There were some arrears due to the husband under the bond.

The registrar had reported that the appointments by the wife were not post-nuptial settlements within the meaning of the Acts.

On a motion to confirm the report Lord Merrivale P. held that the bond and the deed of appointment were settlements within the meaning of the Matrimonial Causes Act, 1859, s. 5, and the Supreme Court of Judicature (Consolidation) Act, 1925, s. 192, and made an order that upon satisfaction of the arrears, the obligation of the wife under the bond must be held to be discharged, and that she should be at liberty in the event of her remarriage to appoint to the intended husband an interest to take effect in priority to the interest appointed to the respondent.

The husband appealed against the discharge of the bond.

The appeal was heard on July 13 and 14, 1926.

Hewitt K.C. and F. L. C. Hodson for the appellant. Two requisites must be fulfilled in order that the power given by the Matrimonial Causes Act, 1859 (22 & 23 Vict. c. 61), s. 5, and re-enacted by the Judicature (Consolidation) Act, 1925 (15 & 16 Geo. 5, c. 49), s. 192, may come into operation: (1.) there must be a settlement and (2.) there must be property settled. Here it is submitted the respondent does not show the existence of any settlement. What is suggested to be a settlement does not come within any of the recognized definitions of a settlement: see Halsbury's Laws of England, vol. 25, p. 526. There is no definition of settlement in the Act of 1859, but the definitions in the Settled Land Acts and the Bankruptcy Act, 1914, are of assistance. In this case there are no trusts, no successive interests, and no settled property or charge upon property. There is nothing limited to persons by way of succession. In Loraine v. Loraine and MurphyF2 Cozens-Hardy M.R. said: “This power conferred by s. 5 of the Act of 1859 is a power enabling the Court in terms to vary and alter settlements, and settlements only, made either before or after the marriage of the husband and wife whose marriage is in question.” Here there is only a bond for payment of an annuity which is not a settlement.

The precise point in this case has not arisen before. The nearest approach to it has been in cases under separation deeds; but there is a wide distinction between them and the present case.

In Callwell v. CallwellF3, where a covenant for an annuity made in contemplation of marriage was held to be an ante-nuptial settlement, there was a marriage settlement as well from which the covenant could not be dissociated. In Gill v. GillF4 the only question was who was to bear the costs of varying the settlement.

In Worsley v. WorsleyF5 it was held that all deeds, whereby property was settled upon a woman in her character as wife, and to be paid to her whilst she continued a wife, came within the scope of s. 5 of the Act of 1859, and that the Court had power to deal with them.

Sykes v. SykesF6 was a case where there was a marriage settlement, and is only reported on the point whether it was possible to vary one of the terms in a particular manner. The case did not come before the Court on the question whether or not there was a settlement. It has therefore no bearing on the present case.

In Kane v. KaneF7 there was a covenant in a marriage settlement to settle after-acquired property, and Hall V.-C. said: “I...

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20 cases
  • Prescott (formerly Fellowes) v Fellowes
    • United Kingdom
    • Court of Appeal
    • 14 July 1958
    ...made him a present of an annuity that would not he a settlement". 12 This question fell for decision in ( Bosworthick v. Bosworthik 1927 Probate, page 64). There a bond had been executed by a wife securing to her husband an immediate annuity of £300 for his life. Upon the dissolution of the......
  • F.J.W.T.-M. v C.N.R.T.-M.
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    • 22 June 2004
    ...and C.N.R.T.-M., Respondent and Trustcorp Services Limited, Notice Party Cases mentioned in this report:- Bosworthick v. Bosworthick [1927] P. 64; [1926] All E.R. 198. Brooks v. Brooks [1993] Fam. 322; [1993] 3 W.L.R. 548; [1993] 4 All E.R. 917 (H.C); [1994] 3 W.L.R. 1292; [1994] 4 All E.R.......
  • Li Quan (Petitioner) v William Stuart Bray and Others
    • United Kingdom
    • Family Division
    • 27 October 2014
    ...extending far beyond what a Chancery lawyer would understand in a conveyancing context: see, for example, Bosworthick v Bosworthick [1927] P 64 at 71 (Scrutton LJ) and at 72 (Romer J), Lort-Williams v Lort-Williams [1951] P 395, [1951] 2 All ER 241 at 403 and 245 respectively (Denning LJ) a......
  • Wright v Wright
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    • Court of Appeal
    • 22 February 1960
    ...(1901) 17 Times Law Reports, page 572, where the husband debauched the servants in the matrimonial home. He then referred to Bosworthick v. Bosworthick (1901) 18 Times Law Reports, page 104 (a case of indecent assault on little girls), and ( Boyd v. Boyd 1938 4 All England Reports, page 181......
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