Minton v Minton

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Wilberforce,Viscount Dilhorne,Lord Fraser of Tullybelton,Lord Russell of Killowen,Lord Scarman
Judgment Date23 Nov 1978
Judgment citation (vLex)[1978] UKHL J1123-3

[1978] UKHL J1123-3

House of Lords

Lord Wilberforce

Viscount Dilhorne

Lord Fraser of Tullybelton

Lord Russell of Killowen

Lord Scarman

Minton (A.P.)
Minton (A.P.)

After hearing Counsel as well on Monday the 16th as on Tuesday the 17th days of October last upon the Petition and Appeal of Margaret Jean Minton (Assisted Person) of 14 St. Winifred's Road, Bournemouth, Dorset praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 23rd day of November 1977 so far as therein stated to be appealed against might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order so far as aforesaid might be reversed, varied or altered and that the Petitioner might have the relief prayed for in the Appeal or such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Raymond Claude Minton (Assisted Person) lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 23rd day of November 1977 in part complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That there be no Order as to Costs in this House save that the Costs of the Appellant and of the Respondent be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974.

Lord Wilberforce

My Lords,


I have had the benefit of reading in advance a print of the speech to be delivered by my noble and learned friend Lord Scarman. I agree with it and would dismiss the appeal.

Viscount Dilhorne

My Lords,


I have had the advantage of reading in draft the speech of my noble and learned friend Lord Scarman.


I agree with it and only desire to stress the desirability of the court being able to achieve finality as to the financial provisions made for a spouse after the breakdown of a marriage. A man may be prepared to consent to an order being made in favour of his former wife which made more provision for her than that to which he would be prepared to agree if faced with the possibility of later being required to pay more and to consent on the basis of finality to provide more than the court might have ordered but for his consent. The principle of "the clean break" to which my noble and learned friend refers, I regard as of great importance, and I would deprecate a practice developing where in a case in which the court is satisfied that adequate or generous provision has been consented to, the court nevertheless in case something happened in the future, made an order for payment of a nominal amount so as to retain jurisdiction to increase the provision made. A court should have power to make a final order for provision for a spouse. It has in my opinion that power and in a proper case it should be exercised.

Lord Fraser of Tullybelton

My Lords,


I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Scarman and I agree with it.


I only wish to add a comment on the question of public policy mentioned by my noble and learned friend in the last paragraph of his speech. I respectfully agree that there are great advantages in the finality of a "clean break". But it is easy to envisage an exceptional case in which a totally unforeseeable change in the circumstances of one of the former spouses occurs soon after a final court order has been made disposing of the financial issues between them. Such a change might render the order so inappropriate as to appear harsh and unjust. The change might be for better, as by unexpected inheritance of property, or for worse, as by a sudden serious illness. To cover such exceptional cases it would, in my view, be desirable that the jurisdiction of the court to vary any order should invariably be preserved as a matter of general law. It seems unsatisfactory that this jurisdiction should only be preserved in cases when the court anticipates the possible need for subsequent variation of its order, and provides for it by the device of making a nominal order. But I do not think that the legislation as it stands is capable of being construed so as to lead to the result that I regard as preferable.


I would dismiss the appeal.

Lord Russell of Killowen

My Lords,


I have had the advantage of reading in draft the speech of my noble and learned friend Lord Scarman. I agree with it, and with the proposal that this appeal be dismissed.

Lord Scarman

My Lords,


This is an appeal from an order of the Court of Appeal dismissing an appeal from an order made by His Honour Judge George Macdonald sitting in the Bournemouth County Court whereby he dismissed for want of jurisdiction the application by the appellant for an order that the respondent, her ex-husband, should provide her with reasonable maintenance by way of periodical payments. The question for your Lordships' House is whether the wife, as I shall call the appellant, is precluded by an earlier consent order of the court from invoking the jurisdiction of the court. The answer depends upon the view taken by your Lordships as to the extent of the jurisdiction conferred upon the court by section 23(1) of the Matrimonial Causes Act 1973 ("the 1973 Act").


The parties were married in 1952. They had five children, four of whom survive. In November 1971 the wife obtained (upon a supplemental petition dated 27 th October 1971) a decree nisi of divorce upon the ground that her marriage had broken down irretrievably by reason of her husband's adultery. She was granted the custody of the children. She had included in her petition a prayer for financial provision for herself and the children by way of periodical payments, secured provision, lump sum or sums, as might be just. After decree nisi she made further claims, so that the application, which ultimately fell to be considered by the court, was one dated the 22nd December 1971.


In this application she sought specifically:—

  • (1) periodical payments for herself during joint lives,

  • (2) a lump sum, for herself,

  • (3) that the matrimonial home be transferred to her,

  • (4) periodical payments in respect of the children,

  • (5) continuation after the decree absolute of a land change registered under the Matrimonial Homes Act 1967.


Interim orders pending suit, with which your Lordships are not concerned, were made.


The decree was not made absolute until December 1972. No doubt it was delayed because the wife was anxious to get her, and the children's, maintenance settled before the final act of dissolution of marriage. By December 1972 the parties were very near to, if they had not already agreed upon, a final settlement of financial and property questions as between themselves. On the 16th January 1973 the husband signed three documents, which contained the terms agreed between them, and covered maintenance for the children as well as the wife. No question arises in this appeal as to the provision for the children, for whom it is recognised that the husband has a continuing responsibility,— and the court a continuing jurisdiction (until they reach the age of 18) to make such orders as it thinks appropriate.


Two of the documents were drafted in the form of consent orders. The third was expressed to be an agreement "collateral to and conditional upon the necessary court orders being made as per draft 'consent orders'".


Your Lordships are concerned with only one of the two documents drafted as consent orders. This document, omitting immaterial matter, is in the following terms:—

"By consent it is ordered that:—

"(1) The matrimonial home … in which both the Petitioner and the Respondent have beneficial interests, be conveyed by the Respondent to the Petitioner within 28 days of this order.

(2) The Petitioner do pay to the Respondent, on completion of the Conveyance, the sum of £10,000·00 in full and final settlement of, and to extinguish the Respondent's said beneficial interest in the said matrimonial home.

(3) The Respondent do transfer to the Petitioner all such furniture furnishings, fixtures and fittings in the said matrimonial home as may belong to him on the date of completion.

(5) The Petitioner shall have no claims to any interest beneficial or otherwise in respect of any properties, other than the said matrimonial home as are or may have been owned by the Respondent.

(6) The Respondent do pay to the Petitioner maintenance at the rate of 5p per year until the matrimonial home is conveyed to her such payments to cease on completion of the Conveyance.

(7) No order for any lump sum payments to be made in respect of the Petitioner."


The collateral agreement included the following clause:—

"(3) The Petitioner to hand to the Respondent on completion a document duly signed in the following form:—

I Margaret Joan 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 His Honour Judge King, sitting in the Bournemouth County Court, made, upon the wife's application, a consent order in the terms of the two drafts agreed by the parties. The order thus incorporated the provisions set out above. It did not, however, include clause 3 of the collateral agreement or make any reference to it.


The husband complied with the order, and upon conveyance of the matrimonial home the nominal order for periodical payments to the wife came to an end. The wife, however, became dissatisfied and ultimately applied to the...

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