MacDonald v MacDonald
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE DANCKWERTS |
| Judgment Date | 16 May 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0516-1 |
| Docket Number | 1961 D. No. 124 |
| Court | Court of Appeal |
| Date | 16 May 1963 |
[1963] EWCA Civ J0516-1
Lord Justice Willmer,
Lord Justice Danckwerts
and
Lord Justice Diplock
In The Supreme Court of Judicature
Court of Appeal
On Appeal From the Probate, Divorce and
Admiralty Division (Divorce)
(Mr. Justice Cairns)
MR. S. SEUFFERT (instructed by Messrs. Baldwin & Co., Agents for Messrs. Willey, Hargrave &, Co., Leeds) appeared on behalf of the Appellant.
MR. R. GRAY (instructed by Messrs. Kimber & Co., Agents for Messrs. W.E. Clayton-Smith & Son, Pontefract) appeared on behalf of the Respondent.
( As revised)
This is a wife's appeal from an order made in chambers by Mr. Justice Cairns on the 7th March, 1963, whereby he dismissed her appeal from an order of Mr. Registrar Lawton of Leeds, relating to a matter of maintenance. The Registrar's Order appealed from was an order for a nominal rate of Is. Per annum. At the date when it was made the husband, against whom it was made, was in arrears to a considerable extent under a previous maintenance order. The Order made by the Registrar, although made on the 1st February, 1963i was backdated to the 16th August, 1962. The practical effect of the Order complained of was, therefore, to remit the arrears outstanding B under the previous Order. This appeal has been brought on the basis that, as a matter of law, the High Court has no jurisdiction to remit arrears of maintenance already outstanding. There is no other ground of appeal put forward; that is to say, it has not been argued that, if power exists in law, the power has been wrongly exercised in this case as a matter of discretion.
The relevant facts can, I think, be shortly stated. The parties were divorced, the decree nisi having been made on the 25th October, 1961, and the decree absolute on the 31st January, 1962. In anticipation of the decree absolute, there had been proceedings for maintenance, as a result of which the wife obtained an Order for maintenance at the rate of pound 8 per week from she date of the decree absolute, the order being made on the 4th January,1962. On the 16th August, 1962, the wife remarried. It appears from an affidavit sworn by the husband that the wife married a medical practitioner who was believed to be well able to maintain the petitioner. That has not been contradicted on the part of the wife. The husband had not, as I understand it, made any payments under the Order up to then, and he has not made any payments since. There were, therefore, arrears outstanding at the date of the wife's remarriage, anduntil the further Order was made the arrears went on accumulating. We are told that, in fact, the arrears from the 16th August, 1962, up to the date of the hearing, amounted to £ 191.
There were proceedings before local Justices in Yorkshire, with whom the original Order had been registered, for enforcement of the Order. Those took place at some time in September, 1962, and were adjourned by the Justices to enable the husband to take legal advice. The reason for that, I understand, was that it then came to light that the wife had remarried and that her new husband was in a perfectly good position to maintain her. In the result, these proceedings were brought by the husband asking for discharge of the Maintenance Order. The learned Registrar, however, as I have said, made a...
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