Lusternik v Lusternik
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE CAIRNS,LORD JUSTICE KARMINSKI |
| Judgment Date | 11 November 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J1111-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 November 1971 |
[1971] EWCA Civ J1111-2
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: Mr. Justice Hollings - London)
Lord Justice Davies
Lord Justice Karminski and
Lord Justice Cairns
Mr. DEREK WHEATLEY (instructed by Messrs. How, Davey & Lewis) appeared on behalf of the Appellant (Applicant).
Miss S. M. C. CAMERON (instructed by Messrs. Cox & Cardale) appeared on behalf of the Respondent (Respondent).
I have asked Lord Justice Cairns to deliver the first judgment.
This is an appeal from a judgment of Mr. Justice Hollings given on the 28th May, 1971, in proceedings under section 26 of the Matrimonial Causes Act, 1965. The appeal is brought by leave of the learned judge. Section 26 is the section which enables a woman whose marriage has been dissolved and whose husband has died to apply for financial provision from his estate. Here the applicant succeeded in getting an order for such provision but she is not satisfied with the amount or the terms and appeals for a more favourable order.
The history of the matter, quite briefly, is as follows. On the 26th April, 1947, the applicant was married to a man who had been previously married and had one daughter. The marriage between the applicant and that man was dissolved on the applicant's petition on the ground of cruelty, the decree being made absolute on the 9th August, 1951. There were no children of that marriage. In November, 1951, an order was made in favour of the applicant for maintenance at the rate of £6 a week less tax. Such maintenance was paid up to the death of the former husband, which took place on the 19th December, 1964, when he was 81 and the applicant was 59 years of age. By his will he left her a legacy of £500, which has been paid. The executrix, who proved the will, was the daughter of the deceased husband, and she is also the residuary legatee under the will and the respondent in these proceedings. The applicant was out of time in making her application but the time was extended, without opposition from the respondent, by Lord Simon, President.
The application first came before Mr. Registrar Tickle, who made a report on the 17th December, 1970, recommending that periodical payments should be made by the respondent to the applicant at therate of £7. 10s. 0d. a week, the order to he back-dated for a year. After that the respondent produced some fresh documents and the matter came before the President, who remitted it to the Registrar with directions for the applicant to answer a questionnaire and to attend for cross-examination. There was a further hearing before the Registrar when the applicant was cross-examined at considerable length. In a second report made on the 11th May, 1971, the Registrar adhered to his previous recommendations except that he recommended that the order should be back-dated to a year before the President was first seised of the matter: that would mean that it would be back-dated to the 22nd February, 1970.
After that the matter was restored before Mr. Justice Hollings at the direction of the President. He considered the two reports of the Registrar; he heard arguments of counsel; on the 28th May, 1971, he made the order which is now appealed from and which followed the recommendations of the Registrar except that the learned judge substituted £6 a week for the recommended £7. 10s. 0d.; and he directed that the accrued arrears should not be enforced for six months from the date of his order. Now, by a Notice of Appeal, the applicant contends that the award should be at the rate of not less than £12 a week and should be back-dated to the death of the former husband (to whom I will refer hereafter as "the deceased").
The provisions of section 26 of the Act of 1965 are as follows. Sub-section 1 provides: "Where after 31st December, 1958, a person dies domiciled in England and is survived by a former spouse of his or here (hereafter in this section referred to as 'the survivor') who has not re-married, the survivor may" (and then I read the section as subsequently amended) "apply to the court for an order under this section on the ground that the deceased has not made reasonable provision for the survivor's maintenance after the deceased's death. An application under this section shall not,"except with the permission or the court, be made after the end of the period of six months from the date on which representation in regard to the estate of the deceased is first taken out".
Sub-section 2: "If on an application under this section the court is satisfied - (a) that it would have been reasonable for the deceased to make provision for the survivor's maintenance; and (b) that the deceased has made no provision, or has not made reasonable provision, for the survivor's maintenance, the court may order that auch reasonable provision for the survivor's maintenance as the court thinks fit shall be made out of the net estate of the deceased, subject to auch conditions or restrictions (if any) as the court may impose".
Sub-section 3: "Where the court makes an order under this section requiring provision to be made for the maintenance of the survivor, the order shall require that provision to be made by way of periodical payments terminating not later than the survivor's death and, If the survivor re-marries, not latter than the re-marriage…." Then there is a provision for making in certain circumstances a lump sum payment, which admittedly is not applicable in this case.
Sub-section 4: "On an application under this section the court shall have regard - (a) to the past, present or future capital of the survivor and to any income of the survivor from any source; (b) to the survivor's conduct in relation to the deceased and otherwise; (c) to any application made or deemed to be made by the survivor during the lifetime of the deceased - (i) where the survivor is a former wife of the deceased, of auch an order an is mentioned in section 16 (1) of this Act…." That is the relevant section, and is the section providing for maintenance to be paid by a husband to a wife after a divorce decree has been made absolute. Then, leaving cut two paragraphs which are irrelevant, the sub-section goes on: "….and to the order (if any) made on any suchApplication…." That in this case is, of course, an order for maintenance at the rata of £6 a week; and the rest of that paragraph is not relevant, "(d) to any matter or thing which, in the circumstanced of the case, the court may consider relevant or material in relation to the survivor, to persons interested in the estate of the deceased, or otherwise".
Sub-section 5: "In determining whether, and in what way, and as from what date, provision for maintenance ought to be made by an order under this section, the court shall have regard to the nature of the property representing the net estate of the deceased and shall net order any such prevision to be made as would necessitate a realisation that would be imprudent having regard to the interests of the dependants...
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Ye Hong Ying v Chan Lup Ying
...of the Ordinances and a number of authorities in support of his submission : R. v. Shanahan [1971] 3 All ER 873; Lusternik v. Lusternik [1972] 2 WLR 203 at Re. Borthwick [1948] 1 Ch.645 at 651; Re. Coventry [1960] 1 Ch.461 at 465C; White v. Barron [1980] 144 CLR 431; Anthony Dickey's Family......