Pigott v Pigott
| Jurisdiction | England & Wales |
| Judgment Date | 17 October 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J1017-1 |
| Court | Court of Appeal |
| Date | 17 October 1957 |
[1957] EWCA Civ J1017-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson,
Lord Justice Morris And
Lord Justice Sellers.
Mr. Harold Brown Q.C. and Mr. Derek Hyamson (instructed by Messrs. J. H. H. Kidgell & Co.) appeared on behalf of the Appellant (Wife, Applicant).
Mr. K. Bruce Campeell (instructed by Messrs. Marey & Co.) appeared on behalf of the Respondent (Husband, Respondent).
LORD JUSTICE HODSON This is an appeal by a wife from en Order of Mr, Commissioner Grasehrook which was made on the 8th March, 1957 The application by the wife was made under section 23 of the Matrimonial Causes Act, 1950, which contains an additional power of the Court to sake Orders for maintenance – additional in this cenes that prior to 1949, the year before the data of the pouring of thie Act, a wife' right to obtais maintenance is respect of what is called wilful neglect to maintain was only to be had is the magistrates' courts. Those courts have a Halted Jurisdiction as to amount, whereas the High Court is not so limited, The same result could, is is true, be achieved in the High Court prior to 1950, because the wife who was not being maintained and whose husband had wilfully neglected to maintain her could seek restitution of conjugal rights, and, If she obtained an Order for restitution of conjugal rights which was not oomplled tilth, she could then get an Order for periodical pay- ments of an unlimited amount: moreover, she could get an Order that those periodical payments could be secured. That position still obtains, and is contained in section 22 of the present Act, the Matrimonial Causes Act, 1950. Section 23, the additional section, reads as follows: "(l) 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 to 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 (2) Where the court makes an order under this section for periodical payments it may, if it thinks fit, order that the husband shall, to the satisfaction of the court, secure to the wife the periodileal payments, and for that purpose may direct that a pager deed or instrument to be executed by all necessary parties shall be settled and approved by one of the conveyancing counsel of the court".
The wife in this case made application under both limbs of this section and asked for periodical payments, and for those periodical payments to be secured. In this Court (security having been refused below) Counsel on behalf of the wife has argued that security should be given as to part, at any rate, of the Periodical payments, sad that that security should be for the life of the wife The Coamtasiensr refused security, bat nada an Order for a year loss tax by way of periodical payments, to be paid during joint lives, under the first part of the saction.
The appeal has been directed against the amount - that was the first matter which was complained of secondly, security was refused, and there is an appeal against that; and thirdly, at the conclusion of the case, although the wife had proved wilful neglect to maintain and obtained an Order in her favour, the Commissioner did not award her ecets to be taxed in the ordinary way as between parties, but, there having been an Order for security for the wife's costs. In accordance with the practice of the Court (to protect the wife's solicitors in cases where a wife may not succeed in her application and may not get the costs froa bar husband beyond the security), the Commissioner here limited the amount which she could recover to the amount of tho security. That is said to be a wrongful exercise of discretion; and against that also there is an appeal.
Dealing first with the question of amount, the amount of maintenance is a matter in the discretion of the Judge who makes the Order. In this case it was in the exercise of his discretion that Mr. Commissioner Granebrook made the Order which he did. In order to attack that exercise, Counsel on behalf of the wife has said that the Commissioner allowed himself to be influenced in the exercise of his discretion by matters which ought not to have influenced his mind. Accordingly, he says, this Court should look again at the figures - that is to any, the figures of income of the husband and the wife respectively - and eufcte oireusstanees of the case as are relevant in assessing the just figure to be awarded, untrammelled by the purported exercise of discretion by the Commissioner.
In my judgment, the submission mads by Counsel is well-founded, because, regrettably, it is the fact that the Commissioner shows, on the face of his Judgment, that he did allow himself to be influenced in the exercise of his discretion by matters which ought not to have affected his Hind. I do not propose to say about the facts of this case more than is necessary. The parties ere Roman Catholic They were married in 1935, and they had two twin children, who were born in June, 1957 In 1940, when the var was on the two children were in Ireland with their Bother and their grandparents; so there cane about, owing to the was, a separation, and the married life was therefore In effect brought to an end The wife did not want to bring the children to England, because of the risK of danger to their lives, and the parties thereafter lived apart. At the end of the War, in 1945 the husband claimed that his wife had deserted him, and brought a Petition, seeking to establish that fact, which failed After the failure of his Petition, the wife wrote to her husband a letter referring to their religion and asking him to join her end the children and to Rake a name together agains There was no response to that letter The husband appealed to the Court of Appeal against the dismissal of his Petition, and his appeal was dismissed. He never sent his wife any money, and she, since she went to Ireland, with the exception of some very small payments received in the earlier years from her husband, has been dependant on this generosity of the other members of her family – who have undoubtedly been exceedingly good to her; according to her evidence they have fed her and clothed her. The husband's attitude throughout has been that, having regard to the circus stances in which his wife went to Ireland and stayed there, he is under no obligation to maintain her or the children.
In 1955 the husband (who has been in receipt of a not very large income) became entitled, upon the death of his father, to a share in his father's estate which was over 100,000. The husband's soars was 12,000 or more; and the publicity attached to this death brought it to the notice of the wife, who, although she had made efforts to find her husband in the past, had never until that time succeeded In finding him She brought proceedings against her husband alleging that he had been guilty of wilful neglect to maintain her and his infant children Those precedings were expected to come on on or about the 10th February, 1956; but by that time the husband had instituted further proceedings for divarts, on the ease ground, namely, desertion, against hie wife, seeking the exercise of the discretion of the Court is his favour In respect of his own adultery because apart from some earlier isolated nots of adultery he had since 1947 been living on a permaent basis with a mistress, by whom he had two children) one born in 1948 and another a little later.
On the 10th February the Summons for maintenance was adjourned pending the hearing of the divorce Petition, which did not come on until considerably later, when Mr. Justice Karmineki dismissed the Petition (which no described as a "hopeless" one) without calling upon the wife to answer the allegation of desertion asde against her. The Petition having been dismissed, the Summons was restored, and came before Mr. Commissioner Grasebrook on the date I first atsted. He found that the husband had wilfully neglected to maintain his wife; and indeed that finding was, I think, inevitable. The husband had maintained that this viait to Ireland, or at any rate the remaining in Ireland, In the circumstances of this case constituted desertion. That issue had been decided against the husband twice, on two separate occasions – though, of course, the facts were not quite the same and the wife had after the first case written a letter, to which the husband bad made no response, asking hia to make a hone with her and tne children again. so that, as between the parties, upon tae facts the conclusion (if it had been necessary to reach such a conclusion) would naturally be that, so far from the wife having deserted the husband. It was the husband who had deserted the wife, But the Commissioner, in dealing with the matter, expressed himself, notwithstanding what Mr. Justice Karainski had said in the recent proceedings, in somewhat contemptuous language about the letter cbleh the wife had written asking or a reson ciliction. It appears to me that that was one of the circum-stances which influenced him in allotting a smaller sun for maintenance for this applicant than ha would otherwise have dons.
But there is a more serious matter which has been mentioned already and appears fully stated In the Commissioner's Judgment - which I do not propose to read; it is sufficient, I think, for me to say that he regarded the religion of the Petitioner and the effect of that religion upon her conduct as (although a side issue in the matter) a relevant consideration and having a bearing in considering what should be ordered. In that i...
To continue reading
Request your trial
-
Williams v Williams
...against both parts of the order. The wife's counsel has conceded that, in pursuance of the decision in this court in ( Pigott v. Pigott 1958 Probate page 1), the security should have been for the joint lives and not for the life of the wife. 7 The history, so far as relevant, is as follows.......
-
Harrison v. Carswell, (1975) 5 N.R. 523 (SCC)
...and almost arbitrary change." (See also Jaffe, English and American Judges as Lawmakers (1969), McWhinney, Canadian Jurisprudence, (1958) pp. 1-23; Friedmann, Law in a Changing Society, (1972) 2nd ed., pp. 49-90; and Allen, Law in the Making, (1964) 7th ed., pp. 302-311.) [7] Society has lo......
-
Notes
...Poll,’ Daily Gleaner , March 23, 1958, p.10. 64. ‘Federal Election Killing. PNP Mob linked to midnight attack,’ Daily Gleaner , March 22, 1958, p.1 and p.6. 65. Letter from Alexander Bustamante, ‘What excuse can the police give?’ 191 191 N OTES 191 191 Daily Gleaner , March 22, 1958, p.11. ......
-
Table of Cases
...Obumseli v. Uwakwe (2009) 8 N.W.L.R. (Pt. 1142) 55……….....….……154,157 Obumselu v. C.O.P. 1958) 1 N.S.C.C. 105…………………….......................172 [97] Table of Cases Vol. 3 Obun v. Ebu (2006) All F.W.L.R. (Pt. 327) 419…………..........……..…...….343 Ocean Estates Ltd. v. Pinder (1969) 2 A.C. 19……......
-
Table of Cases
...104, 538 Achabua v. State (1976) 12 S.C. 63………………...........................................…..377, 392, 396, 405 Achonra v. I.G.P. (1958) 1 N.S.C.C. 83; (1958) 1 N.S.C.C. 83. ………………….....................…535 ACME Builders Limited v. Kaduna State Water Board (1999) 2 N.W.L.R. (Pt. 590) 288…......
-
Recent Judicial Decisions
...theCourt of Criminal Appeal in this case (1959, 1W.L.R. 244) inwhich certain views to the contrary expressed in Russell on Crimes(lithed., 1958, pp. 1,373 to 1,376) were disapproved.Theappellants were convicted of several offences of obtainingmoney by fraud in wagering, contrary to s. 17. G......