Jessel v Jessel
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BROWNE |
| Judgment Date | 06 June 1979 |
| Neutral Citation | [1979] EWCA Civ J0606-5 |
| Docket Number | No. 15336 of 1973 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 June 1979 |
[1979] EWCA Civ J0606-5
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Family Division
(Mr. Justice Bush)
The Master of the Rolls (Lord Denning)
Lord Justice Browne and
Lord Justice Geoffrey Lane
MR. A. TEMPLE (instructed by Messrs. Edwin Coe & Calder Woods) appeared on behalf of the Petitioner (Appellant).
MR. M. THORPE (instructed by Messrs. Bischoff & Co.) appeared on behalf of the Respondent.
Mr. and Mrs. Jessel married on the 29th July, 1967. They had a daughter Sarah who was horn on the 6th November, 197C. Unfortunately there were unhappy differences between the husband and wife. They separated in October 1971, There followed unsuccessful discussions between their respective solicitors regarding a possible reconciliation. Eventually the parties were divorced in December 1973. Very sadly, the little girl was killed in an accident about a year later.
The action before us today concerns the provision of periodical payments for the wife Mrs. Jessel. Soon after the parties separated, their respective solicitors negotiated as to the financial arrangements to be made. On the 24th February, 1972 the husband's solicitors wrote a letter to the wife's solicitors setting out the various terms of the financial arrangements. The matrimonial home, which had been in joint names, was to be vested in the husband only, but he was to make a financial provision by way of a lump sum. It was to enable the wife to be provided with a flat, which she has occupied ever since. Furthermore -and I need not pause upon them now - there were provisions for maintenance in regard to the child of the marriage. But so far as the wife was concerned, there was an unusual provision as to her periodical payments: and that is what comes into question here. It was agreed that, so long as Mr. Jessel was a Member of Parliament, there should be periodical payments amounting to £2, 400 a year. But if he ceased to be a Member of Parliament, it should be half that sum, £1, 200 a year. But I ought to say that in that letter there was a clause which said that Mrs. Jessel (the wife) would not make any further claims against her husband or apply for any further periodical payments or anything of that kind. In other words, she was to have no claim against him otherthan the provisions which I have recited.
I pause at once to say that that clause was void under the statutes on that behalf. The statute in its present state is the Matrimonial Causes Act 1973, section 54(1) of which provides: "If a maintenance agreement includes a provision purporting to restrict any right to apply to a court for an order containing financial arrangements, then (a) that provision shall be void". Therefore, so far as that clause in the agreement restricted the right of Mrs. Jessel to come to the court, it was void.
I will say no more about that agreement. It has ceased to exist. It was subject to the approval of the court: and it has been replaced by documents which were approved by the court.
In July 1972 a deputy judge expressed an opinion that the agreement was reasonable and fair. Thereafter minutes of order were drawn up by the solicitors on each side, and approved. They were embodied in an order. Paragraph 2 of the Minutes- says: "The Petitioner" - that is, the wife - "shall accept the settlement of all her claims to periodical payments and hereby undertakes not to apply to increase the Respondent's – that is, the husband's - "liability".
Then followed this provision in the Minutes of order: "And it is further ordered that the Respondent" – that is, the husband - "do pay or cause to be paid to the Petitioner for herself by way of periodical payments during joint lives or until the Petitioner's remarriage or until further Order the sum of £2,400 per annum less tax such sum to be reduced to £1,200 per annum less tax should the Respondent cease to be a Member of Parliament and whilst he should cease to be a Member of Parliament the above sum to be payable monthly as from the date on which this decree nisi shall be made absolute".
Those are the important terms of the Minutes. They were initialled and consented to by the solicitors for the parties. Then on the formal order of the 12th December, 1973 it was ordered that those Minutes of Order should be made a rule of court. This was the formal order which was drawn up on the 12th December, 1973: "And it is further ordered that the Respondent" - that is, the husband - "do pay or cause to be paid to the Petitioner" - that is, the wife - "for herself periodical payments during their joint lives or until the Petitioner shall remarry or until further-order at the rate of £2, 400 per annum less tax to be reduced to £1, 200 per annum less tax should the Respondent cease to be a Member of Parliament … And it is further ordered that the Minutes of Order be made a Rule of Court".
In 1978 Mrs. Jessel applied for a variation of the terms of that order with regard to the periodical payments She said that the situation had changed much in the intervening five or six years. The husband by his lawyers applied to dismiss her application on the ground that the court had no jurisdiction to alter it The matter came before the registrar. He refused to dismiss; her application. He held that the court had jurisdiction to entertain the wife's application and go into the case.
There was an appeal to a judge of the High Court, The case was held over pending a decision of the House of lords. It is now reported: see Minton v. Minton (1979) 2 Weekly Law Reports 31. The judge was so influenced by the decision of the House of lords that he felt that the court had no jurisdiction to give Mrs Jessel any further sum for periodical payments. So he struck out the wife's application. She appeals to this court.
To my mind Minton v. Minton has no application to the present case. It does not apply to an order for periodical payments.
Minton v. Minton only applies when there is a genuine final order which contains no continuing order for periodical payments, as for instance when the wife has applied for periodical payments and her application has been dismissed: or, as in Minton v. Minton, a nominal order for periodical payments came to an end. The case of Minton v. Minton must be confined to such a situation. It has no application whatsoever to the present case.
In this case, on the very face of the order there is a continuing provision for periodical payments to go on indefinitely "until further order", either in the sum of £2, 400 a year as long as he is a Member of Parliament or £1, 200 a year if he should no longer be a Member of Parliament. It comes within the qualificatioi which Lord Scarman mentioned at page 41:
"Once an application has been dealt with upon its merits, the court has no future jurisdiction" - now this is the important qualification - "save where there is a continuing order capable of variation or discharge under section 32 of the Act". Now section 31(1) provides: "Where the court has made an order to which this section applies, then subject to the provisions of this section, the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended". Subsection (2) provides: "This section applies to the following orders, that is to say … (b) any periodical payments order". So to my mind it is as plain as can be that Minton v. Minton does not apply. Section 31 does apply. The court has power to vary or discharge this order which has been made.
To this I would add the words of the second paragraph of the order that periodical payments were to be paid during the joint lives of the husband and wife or until the wife remarried "or untilfurther order". Those words "or until further order" are...
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