Deacock v Deacock
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE MORRIS |
| Judgment Date | 18 June 1958 |
| Judgment citation (vLex) | [1958] EWCA Civ J0618-2 |
| Court | Court of Appeal |
| Date | 18 June 1958 |
[1958] EWCA Civ J0618-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson,
Lord Justice Morris and
Mr. Justice Vaisey.
Mr. J.B. LATEY. Q.C., Mr. E.R. MOULTON BARRETT and Mr. J.B. GARDNER (instructed by Mr. J.A.H. Powell) appeared on behalf of the Appellant (Wife, Respondent).
Mr. S.K. DE FERRARS and Mr. J.M. RANKIN (instructed by Messrs. Stoneham & Sons) appeared on behalf of the Respondent (Husband, Petitioner).
This Is an appeal from an Order of Mr. Justice Barnard dated 9th May, 1957, pursuant to leave given by this Court on 16th December, 1957. The actual Order of the learned Judge was an Order on an appeal from Mr. Registrar Townley Miller dated 2nd April, 1957, the Registrar having refused leave to a wife to file a notice of what is called "ancillary relief" — in plain English, maintenance — out of time. Leave to appeal having been refused, this Court gave leave.
The reason why an application had to be made to the Court to file a notice requiring the husband to pay maintenance appears from the rule. Rule 44 of the Matrimonial Causes Rules, as they now stand, provldee that "… no such application shall be made later than two months after final decree except by leave". The earlier rules I think provided for one month, within which no leave was required.
The provisions with regard to maintenance are statutory, and the relevant Act at the present time is the Act of 1950. Section 19 provides, by sub-section 3, "On any decree for divorce or nullity of marriage, the court may, if it thinks fit, by order direct the husband to pay to the wife, during their joint lives, such monthly or weekly sum for the maintenance and support of the wife as the court may think reasonable". The previous sub-section (also beginning with the words "On any decree for divorce or nullity of marriage") makes provision for orders for security.
This is a very unusual case, because what happened here was that on the 5th November, 1941, the husband presented a petition for divorce under the provisions of the Act then in force (being the Act of 1937). section 8 of which provides that "(1) Any married person who alleges that reasonable grounds exist for supposing that the other party to the marriage is dead may present a petition to the court to have it presumed that the other party Is dead and to have the marriage dissolved, and the court, if satisfied that such reasonable grounds exist, may make a decree of presumption of death and of dissolution of the marriage".
The parties were married in 1918. The wife was a Greek. The husband was In the Consular Service; and they lived together in Greece and lastly In Athena. In 1930, according to the husband's case which he put before the Court, his wife disappeared. He made certain accusations against his wife in his petition and in his affidavit in support of the petition (which affidavit was used as his evidence at the trial) which now appear, from the evidence which the wife has produced, to be entirely unfounded, because the wife has shown that in June, 1930, the position was that the Greek court at any rate, after hearing both parties, had made an order in her favour for maintenance for a provisional period, on the footing that she was indigent and that the husband was in all respects responsible for her maintenance.
The facts which have now emerged are that the husband had at that time made the acquaintance of another woman in Athens, with whom he subsequently departed in the later months of 1930; he left his wife, never went back to her, and disappeared from the scene altogether so far as the wife was concerned. But the petition which the husband presented for presumption of death and for dissolution of the marriage was successful on the evidence that he produced, although, for some obscure reason which I cannot fathom, the only service which was directed upon this Greek lady, who lived in Greece and never lived anywhere else, was by advertisement in the "News Chronicle" in this country. She heard nothing of the divorce until the year 1950; and she made no application to this Court for maintenance until the year 1956.
In those circumstances, it is contended, and has so far been successfully contended, by the husband, that no application can be made now because it cannot be (within the language of the section to which I have referred) "On the decree". Those words have been the subject of judicial examination on a number of occasions, the first case being the case of ( Scott v. Scott 1931 Probate, page 107). Lord Sterndale, at page 120, dealing with the word "on", said: "The first question is, what is the meaning of 'on any decree for dissolution'? I was inclined at one time to think that it meant at the same time as the decree was made, or, as It could not precede it, at any rate immediately following upon it… it seems to me that… a more elastic meaning must be given to the word 'on' and that it does not mean 'on' in the very narrow sense that I first thought it ought to be taken to mean, but that it must at any rate be limited to this extent – namely, it must be at the same time as the decree or within a reasonable time afterwards, and that what constitutes a 'reasonable time' must no doubt depend on all the circumstances of the case". On page 121 he says, referring to a statement of the Master of the Rolls Lord Jessel In Robertson v. Robertson. "It" — that is, the word "on" — "does however point in the direction I have already indicated — namely, that the word 'on' does not mean an unlimited time within the judge's discretion, but it does mean within a reasonable time having regard to all the circumstances of the case".
Lord Justice Warrington, at page 124, said: "What is a 'reasonable time' must be decided not by any resort to a judicial discretion, but having regard to all the circumstances of the particular case, and it becomes a matter of law as to what circumstances would justify the judge In coming to the conclusion that the time is reasonable"; and Lord Justice Scrutton concurred in the judgments which had been delivered and said, I think, nothing inconsistent with what I have already read as to the meaning of the word "on" In the statute under consideration.
This matter has come up to this Court on a number of occasions since 1921. Fisher v. Fisher is the next case to which I need refer (reported in 1942 Probate at page 100). I think that the Court there quite clearly approached the matter in exactly the same way as it had approached it in the case of Scott v. Scott, Fisher v. Fisher being a case where, on the facts, there was a narrow distinction between the facts under consideration in Scott v. Scott and the facts under consideration in Fisher v. Fisher, and the Court came to a different conclusion, although Lord justice Goddard (as he then was) felt some hesitation in agreeing with the other members of the Court, the Master of the Rolls and Lord Justice Mackinnon. But although Scott v. Scott was expressly followed, with its reference to the meaning of the word "on", it is true that the Master of the Rolls does use this expression: "I should be very loth to interfere with the discretion of the learned judge on a matter of this kind if I had not before me material which was not before him" — which on the face of it is not wholly in line with the observations in Scott v. Scott to the effect that what one has to consider in this class of case is not the exercise of judicial discretion in the sense in which those words are usually used but the construction of the word "on" – although no doubt the mental approach to the problem does not differ very much. But the matter is, of course, of importance in considering, in particular, orders made by learned Judges under this particular section; and language has been used in later cases (and I have used it myself in a case of Shott v. Shott, to which we were referred) which has seemed to suggest that what the judge of first instance is dealing with and what this Court is dealing with in hearing appeals are pure matters of discretion, whereas it is more accurately stated, I am now satisfied, by the Judgment of this Court in Scott v. Scott (which is binding on us), as being a question in each cane of deciding whether the application in question is in truth made on the decree or within a reasonable time, having regard to all the circumstances of the case.
I think that that view was accepted in the most recent case, Simmonds v. Simmonds, which was a decision of the learned President's in 1956 Probate at page 47, where he referred to four decisions of the Court of Appeal — not only Scott v. Scott, Fisher v. Fisher and Shott v. Shott, to which I have referred, but also another case of Hasting v. Hasting. He clearly, I think, treated it as a matter of consideration of the wording of the statute. That does not, I think, involve that the rule which provides that leave must be obtained If application is not made within two months of the decree is ultra vires, because as a matter of procedure it is essential for the Court to have some machinery by which it can determine in a given case whether an application is truly made "on" the decree or not; and it is obviously convenient that an arbitrary limit (if you like) should be set by the rules fixing the time (now two months) which can be considered as being "on the decree" without the Court having to apply itself to the facts of the particular case in order to arrive at a conclusion.
I may say that, so far as the period of time is concerned, in many of these cases many years have elapsed from the...
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