L v L
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVI |
| Judgment Date | 23 October 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J1023-2 |
| Date | 23 October 1961 |
| Court | Court of Appeal |
[1961] EWCA Civ J1023-2
In The Supreme Court of Judicature
Court of Appeal
Revised
Lord Justice Willmer and
Lord Justice Davies.
the first year, and thereafter monthly sums of £20. On the 4th March 1955 the wife filed a petition for divorce on the ground of her husband's desertion, and included a prayer for maintenance end a secured provision. The husband did not defend, and a decree nisi was pronounced on the 13th Ray 1955, which was made absolute on the 27th June 1955. As the husband was at that time paying the monthly sums due under the deed of covenant, the prayer for maintenance was not then proceeded with.
At the end of 1957 the wife was in financial difficulties, in addition to which she desired to leave England for good. She accordingly opened negotiations with a view to obtaining a lump sum payment in substitution for the monthly payments still remaining to be paid under the deed of covenant. The husband agreed to make a lump sum payment of £660, subject to four conditions set out in a letter from his solicitors of the 3rd February 1958. Those conditions were as follows: "(1) That the existing deed of covenant is cancelled by mutual agreement. (2) That Mrs Lermitte's application for maintenance which was contained in her petition dated 4th March 1955 should be dismissed on receiving payment of the sum of £660.(3) That Mrs Lermitte should make no further attempt to get in touch with our client after the transaction has teen completed. (4) That she should make no attempt to find out her former husband's whereabouts through us". Those conditions were accepted by the wife as appears from the letter of the 7th February 1958 from her solicitors.
In pursuance of the agreement between the parties a consent summons was issued by the husband's solicitors, and on the 13th February 1956 an order was made by Registrar Kinsley in the following terms: "Upon hearing the solicitor for the respondent, the respondent having paid to the petitioner the sum of £660 and the petitioner having accepted the said sum in full satisfaction of all present and future rights to maintenance for herself and by consent it is ordered that the petitioner's application for Maintenance and secured provision as contained in the prayer of the Petition herein be and the same is hereby dismissed. Petitioner's costs". Two days later the wife executed a deed of revocation of the previous deed of covenant, and also signed a written undertaking to abide by conditions 3 and 4 of the agreed conditions. The agreed sum of £660 was duly paid by the husband to the wife.
The learned Judge was satisfied that the wife was independently advised, and that through her solicitor she must be taken to have consented to the order. He pointed out, however, that the consent summons did not set out ail the terms of the agreement, end he expressed some misgivings as to whether the learned Registrar was fully informed with regard to the agreement. For myself, I see no ground for suspecting that the learned Registrar did not know everything that ha was required to know. Moreover, there is no reason to suppose that the wife did not fully understand the effect of the order that was being made. It gave her precisely whet she appears to have wanted, and in material respects it put her in a better position than that in which she would have been under the original deed of covenant. For (a) she obtained a substantial acceleration of payment of what would have been due to her; (b) she avoided the risk of the death of the husband before the expiration of the seven years; and (c) she obtained by way of a capital sum, free of tax, an amount equal to the sum total of the regaining monthly payments instead of receiving the monthly payments as income subject to tax.
The order made by the learned Registrar was in the form approved in this court in Mills v. Mills (1940 Probate Division, page 124) - a form which, we were informed, has been repeatedly followed in a number of cases during the years that have elapsed 'lace then. Pursuant to that decision there can, in my judgment, be no room for doubt that, as the law then stood, the making of the order, coupled with the payment of the agreed capital sum, put an cad once and for all to any further right the part of the wife to obtain maintenance from the husband.
The question raised by this appeal is whether the position in this respect has been altered by the Matrimonial Causes (Property and Maintenance) Act 1958, which came into force on the let January 1959. The material provisions of that Act are as follows: "1. (1) Any power of the court, under the enactments mentioned in the next following subsection, to make an order on a decree for divorce, nullity of marriage or judicial separation shall (subject as mentioned in subsection (3) of this section) be exercisable either on pronouncing a decree or at any time thereafter. (2) The said enactments are the following provisions of the Matrimonial Causes Act 1950". There are then set out a number of provisions of the Act of 1950, of which the only ones relevant to this case are subsections (2) and (3) of section 19, whereby the court may order a husband to make a secured provision for his wife or to pay her a monthly or weekly sum. Subsection (3) provides in paragraph (a): "Any reference in subsection (1) of this section to a decree shall be construed as a reference to a decree nisi, and the reference to anytime after a decree shall be construed as a reference to any such time whether before or after the decree has been made absolute." Subsection (4) provides that certain provisions of the Act of 1950, including section 19 (2) and (3), shall have effect subject to the amendments specified in the Schedule. Subsection (5) provides: "Nothing in this section, or in any amendment made by this section to any of the enactments referred to therein, shall be construed as requiring the court, in determining any application for an order under any of those enactments, to disregard any delay in making or proceeding with the application".
The effect of the amendments to section 19 (2) and (3) specified in the Schedule is shown in Rayden at page 1186, where the subsections ere conveniently set out both in their original and to their amended form. In its original form subsection (2) read: "On any decree for divorce or nullity of marriage the court may, if It thinks fit, order that the husband shall, to the satisfaction of the court, secure to the wife", and so on; I need not read any further. As amended, the subsection reads: "Subject to the provisions of section 29 of this Act, on pronouncing a decree nisi for divorce or nullity of marriage or at any time thereafter, whether before or After the decree has been made absolute, the court may, if it thinks fit, order", and so on. The amendment to subsection (3) is precisely the same.
Relying upon the new Act, the wife, towards the end of 1960, instructed her present solicitors, who intimated on her behalf a fresh claim for maintenance. Eventually, after some correspondence between the solicitors, the present summons was issued on the 8th March 1961. The material part of it asks that: "Having regard to the provisions of section 1 of the Matrimonial Causes (Property end Maintenance) Act 1966 and the Maintenance Agreements Act 1957 me respondent should, to the satisfaction of the court, secure to the petitioner such gross or annual sum of money for her by way of maintenance as may be just, and that he should pay to the petitioner during their joint lives such monthly or weekly sums of money for her maintenance as may be reasonable". It should be said at once that, as is now conceded, nothing terms on the maintenance Agreements Act 1957.
The matter was referred by the Registrar to the learned Judge, who, on the 27th June 1961, grunted the petitioner wife leave to file a notice of application for an order, and referred the application to the Registrar for consideration as to what order (if any) should be mode in all the circumstances. The learned Judge held that, in consequence of the passing of the Act of 1958. "the law upon which the decision in Mills v. Mills was based no longer stands", and that the petitioner wife "is no longer precluded by that decision from bringing a claim for maintenance". He further held that since there is now no application for maintenance in the Petition - this having been dismissed by the order of the 13th February 1958 - the leaves of a Judge was required, pursuant to proviso (11) to Rule 3 (3) of the Matrimonial Causes Rules, 1957, before a new claim for maintenance could be filed. Such leave, however, he was in his discretion prepared to grant.
Mr Latey has argued that the learned Judge fell into error in granting leave for a fresh application for Maintenance to be flied. He presented his in the form of three propositions, and contended that if he succeeded on any one of them he was entitled to succeed on the appeal.
First, he contended that on its true construction the Act of 1958 does not confer any new jurisdiction which did not exist before; It merely extends the time during which an existing jurisdiction cart be exercised. Under the law as it stood before, there was no jurisdiction to entertain a plurality of applications for maintenance, and no such jurisdiction is conferred by the Act of 1958.
Secondly, Mr Latey contended that, assuming these is jurisdiction to entertain a second application by a wife after her first has teen dismissed, the fact that the previous application was dismissed in pursuance of an agreement, sanctioned by the court, to compromise her claim by the payment of a lump sum, would in any case be conclusive to prevent her from reopening the matter now by presenting a fresh claim.
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