Chaterjee v Chaterjee
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAMP,LORD JUSTICE ORMROD,SIR JOHN PENNYCUICK |
| Judgment Date | 02 December 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J1202-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No. 7236 of 1954 |
| Date | 02 December 1975 |
[1975] EWCA Civ J1202-2
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(On appeal from Mr. Justice Arnold)
Lord Justice Stamp
Lord Justice Ormrod
and
Sir John Pennycuick
Mr. J. SAMUELS (instructed by Messrs. Percy Walker & Co., Hastings) appeared on behalf of the Appellant Husband.
Mr. A. RUSSELL VICK (instructed by Messrs. Perring & Co., Hastings) appeared on behalf of the Respondent Wife.
I will ask Lord Justice Ormrod to give the first judgment.
This is an appeal from an Order made by Mr. Justice Arnold on 22 July, 1975, dismissing an appeal from an order of Mrs. Registrar Butler-Sloas dated 24 June, 1974, by which she gave leave to Mrs. Heidy Chaterjee, under Rule 68(2) of the Matrimonial Causes Rules 1973 to apply inter alia for a lump sum order and/or a transfer of property order in respect of a property known as 24 Baldslow Read, Hastings, Sussex, owned by the Appellant, Dr. Marcel Chaterjee.
The grounds of appeal as set out in the Notice of Appeal in substance are that in dismissing the appeal from the Registrar the learned Judge had misdirected himself in various respects in holding that the Registrar had properly exercised her discretion under Rule 68(2). At an early stage in Mr. Samuel's argument for the Appellant it appeared to this Court that, in the existing state of the authorities, it was necessary before considering whether or not the discretion had been properly exercised in the Courts below to determine whether or not, on the facts of this case, there was jurisdiction to entertain the application for leave at all. The facts, which are wholly exceptional, will be referred to later in this judgment. At this stage it is only necessary to say that the parties were married on 20 March, 1952, divorced in December, 1955, but lived together again from 1961 to 1974, for 5 years as husband and wife, and, from 1966, separately but under the same roof. Therefore, to succeed upon the application, the applicant has to show that the relevant sections of the Matrimonial Proceedings and Property Act 1970 are retroactive.
Mr. Samuel gallantly shouldered the burden of arguing a point which he had not intended to argue and, as he later explained, he personally did not think a good one. This Court is extremely grateful to him for his able and lucid guidance through the undergrowth which surrounds this question. It might have been resolved vary simply by including in the statute on express provision whether or to what extent each of its previsions was intended to have retroactive effect. In the result, the question can only be answered by detailed examinationof the statute and some of its predecessors. The power of the Court to award a lump sum after a decree of divorce was first introduced by the Matrimonial Causes Act, 1963, section 5, and there are conflicting decisions at first instance as to whether this section had retroactive effect. In H. v. H. ((1966) All E. R.560) The President, Sir Jocelyn Simon, held that it was not retroactive: in Powys v. Powys ((1971) Probate 340), on the other hand, Mr. Justice Brandon found himself unable to agree with the President and came to the conclusion that this section was retroactive for reasons which he gave in come detail (at p. 350 at seq). I agree with the reasoning of Mr. Justice Brandon on this point which depends primarily on the opening words of section 5(1) which read! "In any case in which the Court has power to make an order (other than an interim order) under section 19 or section 20 of the Matrimonial Causes Act, 1950 the Court may…. make an order for payment of a lump sum".
Sections 19 and 20 of the 1950 Act were the sections which at that time contained the power to grant ancillary relief in the forms then available. The relevant sub-sections all begin with the words "on any decree…". This phrase was first used in this connection in the 1857 Act and has been reproduced in each successive Act, up to and including the Matrimonial Causes Act, 1950. It has been the source of a considerable body of case law. It could not be construed in its narrow sense of "at the time of making the decree", for the practical reason that such ancillary matters were, as a matter of practice, dealt with in separate proceedings after those in which the decree was pronounad. So it had to be construed as meaning "within a reasonable time after the decree": Scott v. Scott, ( 1921 Probate 107). What is a reasonable time in all the circumstances of the case gave rise to a considerable number of reported cases in which the period underwent a progressive extension from a year in the view of Sir George Jessel, Master of the Rolls, in Robertson v. Robertson (8 Probate 96), to periods of the order of ton years or mope in later cases. Parliament ultimately intervened and by the Matrimonial Causes Act 1958, section 1 provided that "Any power of the Court under (sections 19 and 30 of the 1950 Actand other sections) shall… be exercisable either on pronouncing such a decree or at any time thereafter".
By 1963, therefore, the Court could exercise its powers 3d order ancillary relief on pronouncing a decree or at any time thereafter. The class of case referred to in section 55 of the 1963 Act was therefore any case in which a decree of divorce or nullity or judicial separation had been pronounced. Consequently an application for a lump sum could be made in any such case, subject only to the provisions of the following sub-section under which leave of the Court was required if a prayer for ancillary relief had not been included in the petition or answer.
Like Mr. Justice Brandon I find it impossible to construe section 5(1) as limited to decrees pronounced after the coming into force of the 1963 Act, and so conclude that this section was retroactive in its effect.
The question whether the relevant sections of the 1970 Act were intended to have retroactive effect is more difficult. This Act was an integral part of the fundamental revision of our Divorce law which was begun by the Divorce Law Reform Act 1969, and completed by the 1970 Act. New and far-reaching powers were given to the Court to make property adjustment orders of a kind which had not previously been contemplated. Moreover the Courts were instructed to approach the exercise of these and the older powers to award ancillary relief along markedly different lines, some of which were described in detail in section 5, (now section 25 of the 1973 Act); others flow from the change in the basis of divorce front the matrimonial offence to irretrievable breakdown. It would not have boon surprising if Parliament had restricted the exercise of these new pavers, in the new ways, to spouses whose marriages were dissolved on the new basis of breakdown, leaving the financial affairs of those who had been divorced under the old law to be governed by it. But there is no such provision in the 1970 Act. Moreover, the 1970 Act repealed the relevant provisions of the 1965 Act altogether except in so far as the transitional provisions preserved them for certain limited purposes. In Williams v. Williams( 1971 Probate 271) the president, Lord Simon in a careful analysis of these transitional provisions, demonstrated that if the 1970 legislation was not retroactive in its effect the Court would be unable to deal with many cases arising under the old law because it as powers under the old law had gone with the repeal of the 1965 Act. I agree also with Mr. Justice Brandon's observations in Powys v. Powys (supra). In enacting the new provisions relating to ancillary relief (sections 2 and 4) Parliament chose to use the same words "on granting a decree. or at any time thereafter" without any qualification or restriction (except the reference in section 24 to the necessity to obtain the leave of the Court in certain circumstances). It is difficult to think of wider language, or of a...
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