Hyman v Hyman

JurisdictionUK Non-devolved
JudgeThe Lord Chancellor,Viscount Dunedin,Lord Shaw,Lord Buckmaster,Lord Atkin
Judgment Date30 April 1929
Judgment citation (vLex)[1929] UKHL J0430-1
Date30 April 1929
CourtHouse of Lords

[1929] UKHL J0430-1

Lord Chancellor.

Viscount Dunedin.

Lord Shaw.

Lord Buckmaster.

Lord Atkin.

House of Lords

After hearing Counsel for the Appellant as well on Tuesday the 12th, as on Thursday the 14th, days of March last, upon the Petition and Appeal of Maurice Percy Hyman, of 25, Jermyn Street, Piccadilly, in the City of Westminster, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 18th of June 1928, so far as therein stated to be appealed against, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King in His Court of Parliament, might seem meet; as also upon the printed case of May Ward Hyman lodged in answer to the said Appeal; and Counsel appearing for the Respondent, but not being called upon; and due consideration being had this day of what was offered for the said Appellant:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 18th day of June 1928, in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondent the Costs incurred by her in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

The Lord Chancellor .

My Lords,


This is an appeal from an order of the full Court of Appeal in England dismissing an appeal from an order of Mr. Justice Hill made in a divorce suit brought by the Respondent against the Appellant whereby the learned Judge decided that the Respondent was not precluded from prosecuting her claim for maintenance by reason of the terms of a Deed of Separation entered into between the parties in the year 1919. The facts are not in dispute and may be shortly stated.


The parties were married on the 14th September, 1912, and co-habited for some years; there is no issue of the marriage. On the 20th September, 1919, a Deed of Separation was executed between the Appellant of the first part, the Respondent of the second part, Walter Hyman who is the Appellant's brother of the third part, and two trustees of the fourth part. By the said Deed, the Appellant covenanted for himself, his executors and administrators that he would pay two sums of £200 and £2,000 respectively to the Respondent, and that in addition he would pay to the Respondent a weekly sum of £20 free of income tax for her separate use and benefit and for her maintenance during her life. The payment of the £2,000 and of the clear weekly sum of £20 was guaranteed by Walter Hyman by Clause 2 of the Deed. By Clause 3 of the Deed, the Respondent and the trustees covenanted that neither the Respondent nor any person on her behalf should at any time thereafter molest or disturb the Appellant or by any means either by taking out citation or process or by instituting any action in England or elsewhere or in any other manner compel the Appellant to co-habit with the Respondent, or endeavour to enforce any restitution of conjugal rights or to compel the Appellant to allow the Respondent any alimony or maintenance further than the said weekly sum of £20 and the aforesaid sums of £200 and £2,000. The two sums of £200 and £2,000 were duly paid and the Appellant has regularly made the payment of the weekly sum of £20.


At the time of the Deed of Separation the Appellant was living in adultery with another woman and he continued to live in adultery after the date of the Deed. On the 18th July, 1923, the Matrimonial Causes Act of that year became law whereby for the first time a wife was given the right to obtain a divorce solely on the ground of adultery by her husband. On the 11th January, 1926, the Respondent filed her petition for divorce on the ground of the Appellant's adultery during the two preceding years.


On the 25th January, 1927, a decree nisi was pronounced and on the 7th February, 1927, the Respondent filed a petition for permanent maintenance. On the 28th April, 1927, the Appellant swore his answer to the petition and relied on the provisions of the Deed of Separation. On the 31st October, 1927, an Order was made that the questions arising on the Deed of Separation be set down for hearing as a preliminary issue, and on the 10th February, 1928, the issue came on for hearing before Mr. Justice Hill who adjourned the hearing in order that the Respondent might apply to make the decree nisi absolute. On the 27th February, 1928, the decree was made absolute, and on the 27th March, 1928, Mr. Justice Hill delivered judgment in the issue and ordered that the Respondent was not precluded from prosecuting her claim for maintenance by reason of the Deed of Separation.


In giving this decision, the learned Judge followed the decision of the President of the Probate, Divorce and Admiralty Division in a case of Hughes v. Hughes which had been given on the previous day. The appeals in the case of Hughes v. Hughes and in this case were argued before the full Court of Appeal, and on the 18th June, 1928, that Court ordered that both appeals should be dismissed and gave leave to appeal to your Lordships' House. Lord Justice Lawrence and Lord Justice Russell dissented from the view of the majority of the Court.


The decision of the Court of Appeal was based partly on the ground that the Deed of Separation on its true construction ceased to operate when the relation of husband and wife ceased to exist, and, therefore, that there was no agreement by the Respondent not to bring her petition for maintenance before the Court. If this contention be well founded, the obvious result is that the appeal must fail.


But the majority of the Court of Appeal further reached their decision upon the ground that, even if the Respondent had covenanted in express terms not to bring the present petition, she could not be bound by such a covenant so as to preclude the exercise by the Court of its statutory power to award maintenance. This second ground of decision obviously raises a question of far-reaching importance, and if it be correct, it is sufficient to decide the appeal.


For the purposes of my judgment in the present case, I am prepared to assume that the Respondent's covenant in the Deed of Separation does bear the wide construction put upon it by the Appellant and does amount to a covenant not to bring the petition for maintenance, which is the subject matter of the present proceedings. The point to be determined upon this hypothesis is whether such a covenant is effective to preclude the Respondent from prosecuting her claim. It is convenient to turn first of all to the language of the Statute. By section 190 of the Supreme Court of Judicature (Consolidation) Act, 1925, it is provided:—

"(1) The Court may, if it thinks fit, on any decree for divorce or nullity of marriage, order that the husband shall, to the satisfaction of the court, secure to the wife such gross sum of money or annual sum of money for any term not exceeding her life as, having regard to her fortune (if any), to the ability of her husband and to the conduct of the parties, the court may deem to be reasonable …. and may, if it thinks fit, suspend the pronouncement of the decree until the deed or instrument has been duly executed.

(2) In any such case as aforesaid the court may, if it thinks fit, by Order, either in addition to or instead of an Order under subsection (1) of this section, direct the husband to pay to the wife during the joint lives of the husband and wife such monthly or weekly sum for her maintenance and support as the court may think reasonable."


There follow provisos for the variation or discharge of the Order. Subsection (4) is in the following terms:—

"Where any decree for restitution of conjugal rights or judicial separation is made on the application of the wife, the court may make such Order for alimony as the court thinks just."


These provisions are a re-enactment of provisions first appearing in the Matrimonial Causes Act, 1857, as modified by later Acts in 1866 and 1907; and the question which your Lordships have to determine must, in my opinion, depend upon the view taken by your Lordships as to the true meaning and effect of this section.


Before 1857 it was not competent for any Court to dissolve a marriage validly contracted; in order to effect such a dissolution it was necessary to have recourse to an Act of Parliament. In 1857 the legislature for the first time gave to the Courts the power to dissolve the marriage tie by a decree of divorce. Such a decree does not merely affect the relationship of the husband and the wife one to another, but it also changes the status of each of them. In my view, the effect of the section to which I have called attention is to give power to the Court, as incidental to the exercise of these powers and as a condition of their exercise to compel the husband to make adequate provision for the support of the wife. Such a provision is not made solely in the interests of the wife, but also in the interests of third parties who may deal with the wife or who may, as in the case of Poor Law Guardians, become responsible for her sustenance. If this be the proper inference from the language of the Statute, I am prepared to hold that the parties cannot validly make an agreement either (1) not to invoke the jurisdiction of the Court, or (2) to control the powers of the Court when its jurisdiction is invoked.


In the present case, the husband agreed to make a large money payment at...

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    • United Kingdom
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    ...jurisdiction 17 Once again the law is well established. An agreement to oust the jurisdiction of the court is void. This was settled by Hyman v Hyman [1929] A.C. 601, where the issue before the court was whether the wife was precluded from petitioning the court for permanent maintenance by ......
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5 books & journal articles
  • Contract Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2001, December 2001
    • 1 December 2001
    ...general proposition of law just enunciated, it nevertheless distinguished the (English) cases cited by the appellant (viz, Hyman v Hyman [1929] AC 601 and Kearley v Thomson(1890) 24 QBD 742) inasmuch as those cases involved private agreements whereas the present case involved an order of co......
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    • Singapore Academy of Law Journal No. 2012, December 2012
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    ...by an order of court under s 110 (currently s 116). That section merely confirms the position at common law as set out in Hyman v Hyman[1929] AC 601. It should be remembered, however, that the rationale for Hyman is based on public policy, namely, that there is a public interest in the adeq......
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    • McGill Law Journal Vol. 66 No. 2, December 2020
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    ...80:1/2 Can Bar Rev 149 at 160-63. (5) 2003 SCC 24 [Miglin]. (6) 2004 SCC 22 [Hartshorne]. (7) 2009 SCC 10 [Rick]. (8) See Hyman v Hyman, [1929] 1 AC 601 (HL (Eng)) [Hyman] which outlines the principle that such agreements cannot oust the jurisdiction of the (9) While I speak of Canadian com......
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