Morton v Morton (No. 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JENKINS |
| Judgment Date | 01 April 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0401-1 |
| Date | 01 April 1954 |
| Court | Court of Appeal |
[1954] EWCA Civ J0401-1
In the Supreme Court of Judicature
Court of Appeal
Lord Justice Singleton,
Lord Justice Jenkins, and
Lord Justice Hodson.
Counsel for the Appellant: MR E.P. WALLIS-JONES, instructed by Messrs Rhys, Roberts & Co., Agents for Messrs C. James Hardwioke & Co., Cardiff.
Counsel for the Respondent: MR D. ROWLAND, instructed by Messrs Cunliffe & Airy, Agents for Messrs Teliesin Griffiths & Son, Merthyr Tydfil.
LORD JUSTICE SINGLETON; This Is an appeal from an order of His Honour judge Gerwyn Thomas, sitting as Special Commissioner in divorce on the 25th November, 1953. He had before him an application under section 23 of the Matrimonial Causes Act, 1950. That section, which replaces Section 5 of the Law Reform ( Miscellaneous provisions) Act of 1949, provides, by sub-section (1): "Where a husband has been guilty of wilful neglect to provide reasonable maintenance for his wife or the infant children of the marriage, the court, if It would have jurisdiction to entertain proceedings by the wife for judicial separation, may, on the application of the wife, order the husband to make her such periodical payments as may be just; and the order may be enforced in the same manner as an order for alimony in proceedings for judicial separation."
The power given by that sub-section is in addition to any rights which the wife may have to apply to the Magistrates for an order.
The facts of this case are, I hope, unusual. The history, as given to us by Mr Wallis- Jones, is as follows: The wife is now 60 years of age; the husband is 62. He was, until comparatively recently, a collier earning considerable wages, and wages which were higher in the year 1953 than they had been before. The parties were married in the year 1913. There were two children, a girl born in the year 1914, and a son who was born in the year 1919. Both of those children are still alive; both are married, and the wife, who is the Appellant In this Court, lives with her married daughter.
In the year 1930 there were matrimonial differences between husband and wife, and the wife took proceedings, as the result of which an arrangement was arrived at, and it was reduced to writing; there is a sixpenny stamp upon it. It is in these terms; "Morton against Morton. Heads of Agreement. In consideration of Maria Alice Morton …withdrawing summons for maintenance against Willie Colston morton … the said Maria Alice Morton and Willie Colston Morton hereby mutually agree to enter into Separation deed containing the following Clauses: 1. Husband to pay wife one pound a week and boy ten shillings a week the first payment to be made on Saturday next. 2. While unemployed husband to pay wife for herself and boy amount of dependants benefit only. 3. Husband to deliver to wife her goods and furniture. 4. Wife to have custody of boy with right of access by husband, 5. Usual clause that no proceedings be taken while terms of agreement kept. 6. Mutual dum casta clause." - perhaps a little unusual - "7. Husband to contribute £3. 3. 0. to wife's costs." That document is dated the 19th August, 1930.
No further agreement followed, but under the terms of that document the husband paid £1 a week to his wife regularly, and it is not said that he ever fell into arrears.
In the year 1933 the son of the marriage started working, and the father ceased paying the 10s. od. a week to, or in respect of, the boy. The wife took proceedings against the husband in the Magistrates' Court, and an order was made by the Stipendiary Magistrate that the husband should contribute, or should pay, the sum of 30s. 0d. a week to the wife.
The husband appealed to the Divisional Court, and his appeal was heard by the President and Mr Justice Hodson on the 14th January of 1942 (reported in 1942 1 All England Reports at page 273. It was held that the heads of agreement were a binding contract, and not a contract to make a contract. It was further held that the existence of the contract was not necessarily a bar to the making of a subsequent order, and, according to the head note, it was further held that as its terms had been faithfully carried out, the husband could not be said to be guilty of an offence of wilfully neglecting to maintain, and there were no grounds on which the Magistrate could make an order. It may be thatthe latter pert of that which I have read goes a little too far in view of the decision of this Court in Tulip v. Tulipto which I shell refer.
The result was that the Divisional Court discharged the order made by the learned stipendiary Magistrate.
On the 13th November, 1951, the wife again applied to the Stipendiary Magistrate on the ground of wilful neglect to maintain her, and on the ground of desertion. How there could be desertion, in view of the terms of that agreement, I fail to see. The Stipendiary Magistrate dismissed the Summons; there was no appeal from that decision.
On the 19th April, 1952, the wife's solicitors wrote to the husband: "We have been instructed by your wife to write to you regarding the amount of £1 a week which she receives from you under the terms of an Agreement entered into as long ago as the 19th August 1930, when proceedings under the summary jurisdiction Acts, instigated by her, were compromised and as a result she then withdrew the summons for Maintenance. In view of present day conditions you will surely appreciate that this sum is quite Inadequate to maintain your wife and we hope to learn from you that you are prepared to increase the weekly sum by a substantial amount. Please let us hear from you at an early date. "To which the husband's solicitors replied on the 26th April, 1952: "Mr W.C. Morton of Tonypandy has called to see us today upon your letter addressed to him on the 19th Instant. We would refer you to our letter of the 29th November, last. Before the fresh proceedings between the parties came to a hearing in the Merthyr Magistrates' Court in November last negotiations were conducted between your Client's then Solicitor and ourselves with a view to a new Agreement being entered into out of Court. Those negotiations were carried on strictly without prejudice to our Client's position under the existing agreement and although, it was stated on hisBehalf that he was prepared to consider making an increase in the weekly maintenance provided by the existing Agreement your Client's terms were so unreasonable having regard to her husband's circumstances that he had no alternative than to allow the case to come on for hearing with the result mentioned in our letter to you of the 29th November, last," That was a reference to the dismissal of the wife's complaint.
The letter continues: "Since he failed to reach an Agreement with his wife then he feels that it is useless making another attempt to reach a reasonable agreement with her and he has therefore instructed us to say that he will defend any proceedings which she may be advised to take against him in the matter."
The next step was the issue of the Application under section 23 of the Matrimonial Causes Act, 1950, and the Applicant, Mrs Morton, claimed that her husband (and I take the words from the Application)" has willfully neglected to provide reasonable maintenance for her and prays that h be ordered to make to her such payments for her maintenance as may be just." That is dated the 9th May, 1952.
The Application was referred to the Registrar so that he could ascertain the facts on means and the like, and the registrar reported in due course. Counsel appeared before him on both sides, and the Report of the Registrar begins in this way: 'Counsel requested reports of means on various dates as follows" as to the Applicant, and as to the Respondent, so that at the request of Counsel the financial position of the Applicant and of the Respondent was ascertained at each time for which counsel had asked.
"As to Applicant. On 26th April, 1952, she had no income but was in receipt of 20/- per week from the Respondent and national Assistance at 22/- per week up to Behalf that he was prepared to consider making an increase in the weekly maintenance provided by the existing Agreement you client's terms were so unreasonable having regard to her husband's circumstances that he had no alternative than to allow the case to come on for hearing with the result mentioned in our letter to you of the 29th November, last. "That was a reference to the dismissal of the wife's complaint.
The letter continues : "Since he failed to reach an Agreement with his wife then he feels that it is useless making another attempt to reach a reasonable agreement with her and he has therefore instructed us to say that he will defend any proceedings which she may be advised to take against him in the matter."
The next step was the issue of the Application under Section 23 of the Matrimonial Causes Act, 1950, and the Applicant, Mrs Morton, claimed that her husband (and I take the works from the Application) " has willfully neglected to provide reasonable maintenance for her and maintenance as may be just." That is dated the 9th may, 1952.
The Application was referred to the Registrar so that he could ascertain the facts on means and the like, and the Registrar reported in due course. Counsel appeared before him on both sides, and the Report of the Registrar begins in this way: "Counsel requested reports of means on various dates as follows" as to the Applicant, and as to the Respondent, so that at the request of Counsel the financial position of the Applicant and of the Respondent was ascertained at each time for which Counsel had asked.
"As to Applicant. On 26th April, 1952, she had no income but was in receipt of 20/- per week from the respondent and National Assistance at 22/- per week up to16th June 1952 when it was...
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