National Assistance Board v Parkes
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE BIRKETT,LORD JUSTICE ROMER |
| Judgment Date | 08 July 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J0708-3 |
| Date | 08 July 1955 |
| Court | Court of Appeal |
[1955] EWCA Civ J0708-3
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Denning,
Lord Justice Birkett and
Lord Justice Romer.
MR R.I.THRELFALL (instructed by Messrs Gibson & Weldon agents for Messrs Archer & Wilcock, Nairobi) appeared on behalf of the Respondent (Appellant).
MR C. RODGER WINN (instructed by the Solicitor, National Assistance Board) appeared on behalf of the Appellant (Respondent).
On the 21st March, 1950, Mr and Mrs Parkes were married. On the 9th August, 1952, whilst they were living in Kenya, they entered into a separation agreement in which they agreed to live separate and apart from one another. The wife covenanted that she would not claim any maintenance or any financial provision from her husband in respect of herself or her child and would not petition any Court at any time. She came back to England but later she fell on bad times. So much so that she had to ask for national assistance. The husband is paying£2 a week for the child's maintenance, but nothing for the wife. The National Assistance Board have paid 38s.6d. a week to the wife and now bring a summons against the husband asking that he should contribute towards the amount which they are paying to her. They point out that the husband is in receipt of a gross wage of £900 a year, £500 salary and £400 local allowance. The husband makes answer and says that by reason of the deed he is under no obligation to maintain his wife at all, and, therefore, he says, the National Assistance Board have no right against him either.
The claim of the Board depends on the National Assistance Act of 1948 which abolished the old Poor Law Act and put in its place provisions whereby people in need could receive national assistance. It is specifically enacted in section 42: "For the purposes of this Act (a) a man shall be liable to maintain his wife and his children, and (b) a woman shall be liable to maintain her husband and her children". Then by section 43, when assistance is given, the Board "may make a complaint to the court against any other person who for the purposes of this Act is liable to maintain the person assisted". Subsection (2) says: "On a complaint under this section the court shall have regard to all the circumstances and in particular to the resources of the defendant, and may order the defendant to pay such sum, weekly or otherwise, as the court may consider appropriate". By that section it is laid down that a man is liable to maintain his wife and his children for the purposes of the Act, and vice versa a woman is liable to maintain her husband and her children. That is a change in the law which must be given proper effect: but the important provision for present purposes is that the Court is to "have regard to all the circumstances". I think that under that provision the Court must have regard, amongst other things, to any circumstances recognised by the law as sufficient to relieve a husband of his obligation to maintain his wife. Fromthe very earliest times tooth in the Ecclesiastical Courts and in the Common Law Courts a husband baa been under no liability to maintain his wife if she has been guilty of adultery or deception: and when various statutes have been passed, the Courts have hold thathis statutory duty is subject to the same exception. In Gulley v. Charman,(1881) 7 Queen's Bench Division, page 89, it was so held on a statute which enabled the Court to consider all the circumstances of the case. Likewise it has been held by the Divisional Court in the case of The King v. Wilkinson, in 1952, 2 Queen's Bench, at page 648, that a husband has an answer in law to any summons by the National Assistance Board if his wife has been guilty of adultery or desertion. That decision, I think, was perfectly right on this ground, that her guilt is one of the circumstances of the case to which the Magistrates must have regard. It is so strong a circumstance that it affords an answer in law to the claim.
In this case Mr Threlfall says that there is an additional circumstance which gives the husband an answer to the wife's claim, and, therefore, should give an answer to the claim by the Board. That circumstance, he says, is the presence of a separation agreement by which the wife has said she will ask for no maintenance. In my judgment the presence of such a separation deed does not ipso facto destroy the husband's obligation to maintain his wife. It did not do so at common law and does not do it now. So the whole foundation of Mr Threlfall's argument, in my judgment, fails.
Separation by consent is not itself a bar to maintenance. The husband's duty to maintain his wife continues see Price v. Price, 1951 Probate, page 419, but the extent of the duty depends on the circumstances" Sometimes it happens that, when the parties separate, the husband agrees to pay the wife a fixed sum, which is sufficient for her maintenance in her then situation, having regard to her own earning capacity, In such a case the husband fulfils his duty by paying that sum so long as that situation continues. He is not under any obligationto pay more unless new circumstances arise in which ehe needs more, as, for instance? if she is stricken with illness, or if money changes in value, so that the named sum is inadequate. If she brings these new circumstances to his notice and he has the means to pay more then he is under a duty to increase the sum, notwithstanding the prior agreement. If he does not pay her more according to her needs in the new situation, he is guilty of wilful neglect to maintain hers see Tulip v. Tulip, 1951 Probate, page 378:Dowell v. Dowell, 1952, 2 All England Reports, page 141:National Assistance Board v. Prisk. 1954, 1 All England Reports, page 400.
Sometimes, however, it happens that when the parties separate they make no agreement for maintenance; for the simple reason that the wife does not ask for maintenance. She may have means of her own, or is able to earn, or can live with her parents. She may even agree, as here, that she will never claim maintenance from him. In such a case, so long as things remain the same, the husband is not under any obligation to pay any maintenance to her. But new circumstances may arise to alter the situation. The wife may fall on evil days when she is unable to earn. She may lose her parents and be unable to look to them for support. She may even, as here, have to fall back on public assistance. If these facts are brought to the husband's notice and he has the means to pay, then he is under a duty to maintain her, notwithstanding the prior agreement that he should pay nothing. The principle of Tulip v. Tulip applies, I think, just as much when there is an agreement to pay nothing as when a fixed sum is to be paid: and it overrides anything said previously in Baker v Baker (1949)66 Times Law Reports, page 81, and Chapman v. Chapman (unreported). But so long as the husband is ignorant of the new situation he is under no such duty, and is not guilty of wilful neglect to maintain her. That is, I think, the effect of the decision in Stringer v. Stringer, 1952 Probate, page 171.
There is one more remaining case to consider. It may sometimes happen that, when the parties separate, the husband refuses to pay enough to his wife, but only agreed to pay her a small sum, little or nothing, though he could well pay more, and she for the make of peace agrees to it. It may even be his intention that she should resort to public assistance so as to relieve his pocket. I do not think that he could thereby escape from his duty to maintain her. Even though there may be no new circumstances, nevertheless a husband cannot shift his responsibility on to the rest of the community in that way. His duty to maintain her remains, despito the agreement.
The truth is that, on a separation "by consent, the existence of an agreement for fixed maintenance, or for no maintenance, does not oust the duty of the husband to maintain his wife. As Lord Atkin said in Hyman v. Hyman, 1929 Appeal Cases, at page 629 In another connection, but I think his words are apposite here also; "The wife's right to future maintenance is a matter of public concern, which she cannot barter away' In the great majority of cases the husband, by fulfilling his agreement, fulfils his duty: but circumstances may arise when the wife is in need and the husband knows of it and can and ought to pay for her. The private agreement of the parties must then give place to the overriding duty of a man to maintain his wife. His duty only ceases when she has been guilty of a grave fault, such as adultery or desertion, by which she forfeits her right to maintenance.
I ought perhaps to say that, when a separation deed is overridden in this way, it does I suppose cease thenceforward to bind the parties to separate. The way is open to reconccliation. Either side can make a genuine offer to return and make a home again; and the one who refuses must take the consequences.
In the present case the wife became in such need that she had to resort to public assistance, When the husband knew of it, It became his duty to maintain her, despite the deed. She could, I think, have applied to the Court on the ground of hiswilful neglect to maintain her and have obtained an order against him. The National Assistance Board can in these circumstances claim a contribution from him towards the amount they have paid. It will, of course, be open to the Magistrates to consider all the circumstances before they decide what amount, if any, the husband should contribute. All that we decide today is that the deed of separation is not itself a bar to the claim.
I think that the decision of the Divisional Court was right and that the appeal should be dismissed.
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