Packer v Packer

JurisdictionEngland & Wales
JudgeLORD JUSTICE MORRIS,LORD JUSTICE DENNING
Judgment Date11 May 1953
Judgment citation (vLex)[1953] EWCA Civ J0511-3
CourtCourt of Appeal
Date11 May 1953
Packer
and
Packer

[1953] EWCA Civ J0511-3

Before:

Lord Justice Denning

and

Lord Justice Morris

In The Supreme Court of Judicature

Court of Appeal

MR W. LATEY, Q.C. and MR J.B.GARDNER (instructed 'by Mr J.A.H. Powell Divorce Department, agent for Mr J. M. Gregory-Jones, Newcastle-upon-Tyne) appeared on behalf of the Appellant (Wife).

MR N.R.BLAKER (instructed by Messrs Gibson, Pyous & Pybus, Newcastle-upon-Tyne) appeared on behalf of the Respondent (Husband).

LORD JUSTICE DENNING
1

In 1943 Mr Packer, a married man, had sexual intercourse with a woman who was not his wife, as a result of which a child was born to her on the 9th. February, 1944. In July, 1945, a degree absolute was made dissolving his marriage to his first wife, and on the 28th July, 19457 he married the woman who had born his child. In October, 1947, he deserted his second wife, and on the 7th. August, 1951, she brought divorceProceedings against him on the ground of his desertion. On the 9th. January, 1952, a decree absolute was made dissolving that marriage. On the 29th. March, 1952, he married his third wife. In December, 1952, the second, wife applied in her divorce proceedings for custody and maintenance of the child, but the Commissioner on the authority of ( Harrison v. Harrison 1951 Probate, page 476) held that the Court had no jurisdiction to entertain the application. The second wife now appeals to this Court with the avowed intention of challenging the authority of Harrison v. Harrison. Both parties have been granted legal aid so as to enable an authoritative ruling to be obtained. "On this account I Will refrain from going further into the details of the case but will consider simply the point of jurisdiction.

2

The matter depends on section 26(1) of the Matrimonial Causes Act, 1950, which repeats a series of sections in substantially the same form ever since section 35 of the Matrimonial Causes Act, 1857: "In any proceedings for divorce or nullity of marriage or judicial separation, the Court may from time to time, either before or by or after the final decree, make such provision as appears just with respect to the custody, maintenance and education of the children, the marriage of whose parents is the subject of the proceedings". According to Harrison v. Harrison the word "children" in that section does not apply to legitimate children. It applies only to legitimate children, that is, to children of the petitioner and respondent born in lawful wedlock or legitimated by subsequent marriage. The child in the present case was born illegitimate, and it was not legitimised by the subsequent marriage of its parents because the father was married to a third person when it was born (see section 1 (2) of the Legitimacy Act, 1926.

3

I see no reason for confining the section to legitimate children. On the contrary there are strong reasons why it must extend to illegitimate children as well as legitimate children. That is shown by the fact that the section applies not only to proceedings for divorce but also to proceedings for nullity. It applies, for instance, to nullity on the ground of affinity, bigamy or want of form; and the Court can make provision for the children of incestuous or bigamous or invalid marriages, although those children are clearly illegitimate. (See ( Langworthy v. Langworthy 1866) 11 Probate Division, page 85.

4

Once the word "children" in the section is interpreted so as to include illegitimate children (as it must be), then the jurisdiction of the Divorce Court to make provision under section 26(1) depends on three requisites being fulfilled: (i) The application must be made in "proceedings for divorce or nullity of marriage or judicial separation"; and (ii) The application must relate to "children", legitimate or illegitimate, and (iii) "the marriage of the parents" of those children must be "the subject of the proceedings". When the section is analysed in that way it is clear that the test of jurisdiction is parenthood, not legitimacy. Mr Blaker conceded that in proceedings for nullity the test was parenthood, but he argued that in proceedings for divorce or judicial separation the test was legitimacy. I cannot see the slightest justification for that dichotomy. There is nothing in the wording of the section to support it. If the matter is tested by trying to write out the section in full with that dichotomy inserted into it, you would soon give up the attempt and insist on dividing the section itself into distinct parts, one part dealing with proceedings for divorce or judicial separation, the other part dealing with proceedings for nullity.

5

It is, moreover, worth noticing that in subsection (2),which deals with restitution of conjugal rights, the words used are not "children of the marriage" which is the accepted way of denoting legitimate children, but "children of the petitioner and respondent" which are apt to make parenthood the test in that case also. On the strict construction of the section, therefore, I am of opinion that the Divorce Court has jurisdiction to make provision for an illegitimate child of the parties, provided that they are its parents. am not inclined, however, to stand out for a strict construction of an Act of Parliament if reason and good sense point to a different construction. But in this case reason and good sense go hand in hand with the strict construction. Mr Blaker concedes that the Chancery Division (or the County Court or the magistrates) can make provision under the Guardianship of Infants Acts, 1886 and 1925, with regard to illegitimate children. All he says is that the Divorce Court cannot do it. Just see what this means. Take the familiar case where a single woman lives with a married man and has a child by him. He afterwards gets a divorce from his previous wife and marries the single woman and they have three more children. The Divorce Court has full jurisdiction in respect of the three children born after marriage, but none, it is said, over the child which was born to them before marriage. The parties have to go to the Chancery Division to deal with that one. What a waste of money this is. That one child could well have been provided for by the Divorce Court at the same time as the other three; and, indeed, better provided for, because the Divorce Judge will have seen the parties and will know all about them. Yet it is said that the parties must go to the expense of separate Chancery proceedings, and instruct a Chancery Judge by fresh affidavits, and get his order about this one child whilst the Divorce Judge is dealing with the other three. Surely thesensible thing, and the practical thing, is for the Judge who tries the divorce case to make provision at one and the same time for all the four children of the parties, as well for the illegitimate one as for the three legitimate ones. The wording of the Act of Parliament permits the Divorce Judge to do this, and I do not think that we should stand in the way of it.

6

What is the argument on the other side? Only this, that no case has been found in which it. has been done before. That argument does not appeal to me in the least, If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both. There is no decision of this Court that an order cannot be made for custody of an illegitimate child; and in the absence of direct decision preventing us, I think we should follow the course which is permitted by statute and prescribed by good sense. I realise that there is a dictum of the Divisional Court in 1948 in ( Colcuitt v. Colcuitt 1948 Probate, pages 19 and 24) and a Rule of Court first made in 1950 (Rule 54(1) of the matrimonial Causes Rules 1950) which assume that section 26 is confined to legitimate children; but the present case is brought to test the validity of this assumption. If it is shown to be wrong, we should not hesitate to say so.

7

There was one point made by Air Blaker, however, which deserves to be mentioned. It is best shown by an illustration: Suppose that a married woman gave birth to a child and afterwards admitted that it was not the child of her husband but of. the co-respondent: then suppose that she was divorced and married the co-respondent...

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