Melvill v Melvill and Woodward
| Jurisdiction | England & Wales |
| Date | 1930 |
| Year | 1930 |
| Court | Probate, Divorce and Admiralty Division |
Divorce - Marriage Settlement - Jurisdiction to apply Property settled - Definition of Settlement - “Post-nuptial” - “Parties whose marriage is the subject of the decree” -
A respondent wife after her husband had filed a petition seeking dissolution of his marriage with her on the ground of her adultery, executed a settlement of interests to which she was entitled under a will and under the marriage settlement of her parents, and settled them on herself for life with remainder to any of her children, of whom she had two by her then husband, reserving a general power of appointment by will in default of any surviving children and further reserving a power of appointment both of capital and income in favour of any surviving husband. After decree absolute she executed a deed poll, declaring that her income under the settlement should be for her separate use without power of anticipation. Shortly after the execution of the deed poll she intermarried with the co-respondent in the suit:—
Held, that the settlement was not a “post-nuptial settlement” made on the parties whose marriage was “the subject of the decree,” and that on these grounds the settlement was not within the definition in the
PETITION under the
The parties were married on July 30, 1921, and there were two children, a boy born in 1922 and a girl born in 1924.
On October 22, 1928, James Lister Melvill the husband obtained a decree dissolving his marriage with Irene Melvill the wife, on the ground of her adultery with the co-respondent Hugh Woodward. The custody of the children was given to the petitioner.
The divorce petition was filed on May 26, 1927, and after it had been set down for trial as an undefended case on November 16, 1927, the respondent wife on December 30, 1927, executed a settlement of which the co-respondent was one of the trustees by which she settled interests to which she was absolutely entitled on her mother's death, under her grandfather's will and her parents' marriage settlement on herself for life with remainder to any children of the settlor, who being male should attain the age of twenty-one years or being females should attain that age or marry. The settlor was described as the wife of the petitioner in the suit, as, in fact, she still was. The consideration was expressed to be “the natural love and affection of the settlor” for the two children of her marriage, though the settlement was in fact upon any children of the settlor. In default of surviving children power was reserved to the settlor to appoint by will. The settlor also had a power to appoint the income and not exceeding a moiety of the capital of the trust fund to any surviving husband.
The Court was satisfied that the object of this settlement was to prevent property of the wife from coming within the reach of any application that the husband might make under ss. 191 or 192 of the
The interest of the respondent under her grandfather's will was of the value of about 13,755 l. or thereabouts, producing an income of nearly 470 l. net. Her interest under the marriage settlement of her parents, the survivor of whom died in 1928, was of the value of 6235 l. or thereabouts, producing an income of nearly 325 l. net.
In addition to her interests involved in the settlement the respondent was entitled on her mother's death under a voluntary settlement made by her parents dated May 22, 1923, to a life interest without power of anticipation in a moiety of the value of 2450 l., producing a net annual income of 120 l., of the trust funds of the latter settlement. Under the will of her father the respondent took a life interest, also without power of anticipation, in a share of the residue producing about 1013 l. and a further amount of income derived from shares in a company variously estimated according to contingencies at 3834 l., 940 l. or 1697 l. On November 29, 1928, the respondent assigned her interests under her father's will and the settlement of December, 1927, to Barclays Bank as security for advances. On December 4, 1929, the amount of these latter outstanding was 1743 l. By a deed poll dated December 7, 1928, the respondent declared that her income under the settlement of December 30, 1927, should be for her separate use without power of anticipation.
The total available income of the petitioner was reported to be 1728 l. till 1938, when it would fall to 1330 l. per annum.
A decree nisi was pronounced in the suit on March 26, 1928, and made absolute on October 22, 1928, and on December 12, 1928, the respondent married Hugh Woodward, the co-respondent in the suit.
On November 6, 1928, the petitioner filed a petition for the settlement of the respondent's property under s. 191, sub-s. 1, of the
On June 27, 1929, the petitioner by leave filed a petition for the maintenance of the children of the marriage. The registrar, to whom the petitions were referred, reported on December 24, 1929...
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