Nokes v Nokes
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE PARKER |
| Judgment Date | 03 June 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0603-2 |
| Court | Court of Appeal |
| Date | 03 June 1957 |
[1957] EWCA Civ J0603-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson,
Lord Justice Parker And
Lord Justice Ohmerod.
Mr B.J.M. MacKENNA, Q.C. and Mr. F.K. DRAKE (instructed by Messrs, Ashley, Tee & Sons) appeared on behalf of the Appellant husband.
Mr. J.B. ELTON (instructed by Messrs. Drysdale, Lamb & Jackson) appeared on behalf of the Respondent wife.
: This is an appeal from an Order of Mr. Justice Barnard dated the 24th January, 1957, which arose in this way Mr. Justice Davies had before him an appeal from a learned registrar on which the question arose as to whether a child of the wife was in fact a child of the marriage, and he directed an issue to be tried. That was the issue that came before Mr. Justice Barnard, which he determined. The original issue which was settled rocited that the husband did not admit the paternity of the child born of the mother on the 15th October, 1950; recited an Order for maintenance of the child at the rate of £l. 7s.6d. a week, payable by virtue of the Order of the 13th May, 1955; the dismissal of the husband's summons to vary the Order and his appeal against that dismissal. The issue was directed to be tried; the husband by his Statement of Claim pleaded his marriage on the 5th August, 1950, and a decree nisi C dissolving that marriage on the 29th October, 1954, made absolute on the 13th December, 1954. He went on to plead that he knew at the time of his marriage that his wife was pregnant; that she gave birth to this child shortly after the marriage, on the 15th October, 1950; that the birth was registered in a manner so as to show him as the father of the child. His case was that the wife was quite frank with him on the matter, and the marriage, according to him, was entered into on the footing that he would treat the child as his own. It was also part of his case that he had a letter which he was able to produce in which the wife freely admitted that the child was not a child of whom he was the father.
In defence to the plea, the wife relied - and in the end relied solely - upon a plea of estoppel because she said that the Appellant ought not to be allowed to say that he was not the father of the child, in view of the fact that on the 13th May, 1955, the learned Registrar had ordered the husband to pay maintenance, and that Order could only have been made upon the footing that that child was a child of the marriage. Moreover, she pleaded that the Order was made after an affidavit sworn by the husband in which he offered to continue his payment of 20/- a week in respect of (to use his actual words) "my daughter Marion Violet". That Order was never appealed from.
The history of the matter is a fairly long one, because in 1952, on the 8th January, an Order was made by one of the London Stipendiary Magistrates under the Guardianship of Infants Act for main tenance of this child at the rate of £1 a week, and at that time the matter the paternity of the child was, as I understand, raised by the husband. But the Order was made. It did not last very long, because the parties came together again. However, on the 16th may, 1952, the Southend Justices made another Order as to the maintenance of the child at the same time as they made a separation Order in favour or the wife. That Order was finally revoked by the Justices upon the application of the wife in connection with divorce proceedings which she was bringing against her husband. The Petition for divorce was dated the 22nd May, 1954 and she desired no doubt to have her hands free to make an application for maintenance; and on the 13th May, 1955, the Order was made which is said Lo result in estoppel. That Order (on page 15 of the larger bundle) involves to my mind a declaration made by the Registrar that the child in question was a child of the marriage, and the first point taken by Mr. MacKenna on behalf of the husband is that the Begistrar had no jurisdiction to make such an Order, and accordingly there can be no estoppel.
That...
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