Margarkt Jean Minton (Petitioner) v Raymond Claude Mintom (Renpondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAMP |
| Judgment Date | 23 November 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J1123-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 November 1977 |
[1977] EWCA Civ J1123-3
In The Supreme Court of Judicature
Court of Appeal
Family Division
(On Appeal from an order of His Honour Judge McDonald sitting at Bournemouth County Court)
Lord Justice Stamp
and
Lord Justice Orr
MISS M. BOOTH, Q.C. and MR. J. PAVRY (instructed by Messrs. G.A. Mooring, Aldridge & Brownlee, Lansdowne, Bournemouth, Dorset) appeared on behalf of the Appellant Petitioner.
MR. ANTHONY EWBANK, Q.C. and MR. MICHAEL NORMAN (instructed by Messrs. Williams Thompson & Co., Christchurch, Dorset) appeared on behalf of the Respondent.
(As revised)
LORD JUSTICE OHR: This is an appeal by a fermer wife - for convenience I shall refer to the parties as the husband and the wife - against an Order made by His Hon. Judge MacDonald in the Bournemouth County Court on the 19th August of this year, whereby he adjudged that he had no jurisdiction to entertain an application by the wife for periodical payments for herself.
The parties were married on the l2th January, 1952. There were five children of the marriage, daughters Diana and June aged 22 and 21 respectively, another daughter Barbara who died after the divorce proceedings, a boy, Roger, aged 16 and a daughter Marion aged 14. The matrimonial home was a house at 14 St. Winifred's Road, Bournemouth of which it is common ground that the husband was the legal owner but in which it is also common ground that both parties had a beneficial interest.
In May, 1971 the wife petitioned for divorce on the ground of unreasonable behaviour by the husband. She sought custody of the children, maintenance pending suit and periodical payments, secured provision and lump suras for herself and also payments for the children. In October, 1971 she presented a supplemental petition on the ground of the husband's adultery and on that petition she obtained a decree nisi on the 23rd November, 1971 which was made absolute in December, 1972. She was granted custody of the children, with whom she had remained living in the matrimonial home.
On the 21st July, 1971 a Registrar's Order was made that the husband should pay to the wife as from the 1st October of that year £100 a month after tax for her own maintenance pending suit and maintenance for the children. On the 25th August of that year that Order was varied to the effect that the husband was to pay from that date £15 a week after tax as maintenance pending suit for the wife and £2 a week after tax for each of the children and should also pay the rates, including arrears of rates, on the matrimonial home and the school fees of Roger. Thereafter the wife was given leave to apply for a transfer of property Order in respect of the matrimonial home.
The parties then reached an agreement contained in three documents dated the 16th January, 1973. The first two documents were in the form of consent orders which, it was agreed, the Court should be asked to make, and the third was an agreement expressed to be collateral to the first two agreements and conditional on the proposed consent orders being made.
The first agreement provided in paragraph (1) that the matrimonial home should be conveyed in 28 days from the proposed consent order by the husband to the wife. It provided in paragraph (2) that the wife should pay the husband on completion of the conveyance the sum of £10,000 in full and final settlement of his beneficial interest in the house. Paragraphs (3) and (4) dealt with rates, and paragraph (5) provided that the wife should have no claim to any interest in any other properties owned by the husband. Paragraph (6) provided that the husband should pay to the wife maintenance at the rate of 5p per year until conveyance to her of the matrimonial home, but that these payments should cease on that conveyance. Paragraph (7) provided that no order for any lump sum payments should be made in respect of the wife. Faragraphs (8) to (10) made provision for periodical payments in respect of the children.
The second agreement provided for a variation by consent until the 5th April, 1972, the date from which the agreements were to take effect, of maintenance pending suit to the wife in variation of the Order made on the 25th August, 1971, and also made provision for payments to the children. The third agreement, described as collateral to and conditional upon the consent orders being made, as set out in the first and second agreements, made provision for certain personal effects and for the execution of certain waivers, and also on the part of the wife of a document in the following terms, which document, she agreed, that she had, in fact, signed. The document reads:-
"I, Margaret Jean Minton hereby waive and relinquish any or all claims in respect of maintenance from my former husband, Raymond Claude Minton from the date hereof".
On the 22nd January, 1973 the matter came before His Honour Judge King and he made consent orders for payments of maintenance pending suit to the wife and periodical payments for each of the children up to the 5th April, 1972, and also for periodical payments after that date in the agreed sum of £5 for each child and further provided that the husband pay to the wife maintenance...
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