Prescott (formerly Fellowes) v Fellowes

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date14 July 1958
Judgment citation (vLex)[1958] EWCA Civ J0714-1

[1958] EWCA Civ J0714-1

In The Supreme Court of Judicature

Court of Appeal


Lord Justice Hodson,

Lord Justice Romer and

Lord Justice Sellers.

Elizabeth Helen Prescott (otherwise Fellowes)
Thomas Peregrine Fellowes

Mr. GERALD GARDINER, Q.C., Mr. P.R. HOLLINS and Mr. A.B. EWBANK (instructed by Mr. P.R. Kimber, Agent for Mr. Norman Caney, London, S.W.15) appeared on behalf of the Appellant (Husband, Respondent).

Mr. ROGER ORMROD, Q.C., Mr. G.H. CRISPIN and Mr. T. CONINGSBY (instructed by Messrs. Culross & Co.) appeared on behalf of the Respondent (wife. Petitioner).


: This is an appeal from an Order of Mr. Justice Stevenson made upon an application to vary the provisions of a deed, dated 19th June, 1953, as an ante-nuptial settlement. The learned Judge held that a gift made by the Petitioner to the Respondent in pursuance of the provisions of the deed was property settled by her on him within the meaning of section 25 of the Matrimonial Causes Act, 1950.


The marriage took place on the 20th June, 1953, and the deed is endorsed "Settlement Marriage". The marriage was dissolved by decree absolute on the 28th January, 1958: and the wife has invoked the jurisdiction of the Court conferred by section 25. This section is the successor of earlier sections the first of which IS section 5 of the Matrimonial Causes Act, 1659. But the alterations which have been made in the language of the section dealing with variation of settlements by the Legislature from time to time do not affect the question under consideration in this case, which is, whether there is here any jurisdiction to make an Order.


The section reads as follows: "The Court may after pronouncing a decree for divorce or for nullity of marriage enquire into the existence of ante-nuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree, and may make such orders with reference to the application of the whole or any part of the property settled either for the benefit of the children of the marriage or of the parties to the marriage, as the Court thinks fit, and the Court may exercise the powers conferred by this section notwithstanding that there are no Children of the marriage".


The material date for the purposes of the enquiry is the date of the decree absolute of divorce. This has been established by the decision of the Court of Appeal when it was unsuccess-fully argued that a settlement had come to on end at the moment of the divorce in the one case and after the divorce in the other. See Dormer (otherwise Ward) v. Ward, 1901 Probate, page 20; Jacobs v. Jacobs, 1943 Probate, page 7).


The first clause of the deed reads AS follows: "Lady Preacott will immediately after the solemnisation of the said marriage transfer to Squadron Leader Fellowes as an absolute gift unaffected by anything here in after contained the securities short particulars which are set out in the Schedule hereto". The second clause provides for the advancement on loan by Lady Prescott to Squadron Leader Fellowes a of £20,000; and paragraph 4 (which I need not read in full) deals with that loan, which was intended to make up, with the £15,000, the sum of £35,000 required by squadron Leader Fellowes to enable him to become a member of Lloyd's. There were provisions for payment of interest on the loan, and for repayment of the loan.


On the 20th July, 1953, securities to the value of £15,000 were transferred to the Respondent in pursuance of the promise contained in paragraph 1 of the deed. The Respondent never became a member of Lloyd's before the 31st December, 1955, or at all and the subsequent provisions of the deed therefore ceased to have effect. The position at the date of the divorce was, therefore, that, whether or no the deed in question taken as a whole might be treated as an ante-nuptial settlement, the only property which could then be dealt with by the Court as property settled was the £15,000 or the securities representing the same.


It is to be observed that the transfer of securities was expressed to be an absolute gift to the Respondent unaffected by anything thereafter contained in the deed. It is not strictly accurate to describe the transaction as an absolute gift since it was made for good consideration, namely, marriage; but there was no settlement in the ordinary sense of the word as used by conveyances. Nevertheless it was argued by the Petitioner that the section has been given a wide interpretation by the Courts, who long since departed from the view that the conveyance's con-ception of a settlement is of any assistance in deciding the question. Accepting this contention as correct, some effect must nevertheless he given to the word "settled" in the Act of Parliament, and the Courts have, as the authorities show, recognized that it is not to he given the same meaning as If all dispositions made by one spouse in favour of the other or by a third party in favour a spouse had been expressly included In the section.


To show the wide interpretation given from earliest times to the language of the section it is useful to refer to Worsley v. Woraley and Wignall (1869) Law Reports, 1 Probate and Divorce, page 538, at page 651. Here an ordinary deed of separation was treated as a post-nuptial settlement and varied accordingly. The language of Lord Penance has had, I think' Influence on subsequent decisions, and I quote a passage from his Judgment: "The Court would have a great difficulty in saying that any deed which is a settlement of property' made after marriage and on the parties to the marriage, is not a post-nuptial settlement. It would not be justified in narrowing the reasonable scope of the words used in the section. The substance of the matter is, that the legislature by this section has armed the Court with authority to make special arrangements In the case of a woman being found guilty of adultery, in reference to property settled upon her in her character as a wife. The substantial feature to bring the case within the clause of the statute is, that a sum of money is paid to a woman in her character as wife, or is settled upon her in that character and whilst she continues a wife".


The payments made to a spouse in his or her character as a spouse give to those payments the qualification of nuptial but it does not follow that every payment made and every present given by one spouse to the other constitutes settled property. Were it so, highly inconvenient results would follow which in some cases might seem to be absurd if, for example' a spouse claimed the return of some trifling article of furniture given for the pur-pose of increasing the comfort or elegance of the matrimonial Wedding presents given by third parties would not neces-sarily be settled property although given to the spouse in her character as a spouse unless they had some characteristic which entitled them to he treated as settled property. Gifts, therefore, have been recognised by the Courts as outside the scope of the section, with a qualification which will appear. See Chalmers v. Chalmers (1892) 68 Law Times, page 28, cited to and approved by the Court of Appeal in Hubbard v. Hubbard. 1901 probate, page 157. In the former case an assignment of property by a wife to a husband while they were living together was held on a divorce not to be a settlement. In the latter case a husband executed a deed by which he assigned to a trustee a lease-hold house and some furniture upon trust to assign the same at once to the wife absolutely and the trustee assigned the same accordingly. The Judgment of Lord Justice Rigby, agreed to by Lord Justice Vaughan Williams and Mr. Justice Stirring, was as follows: "In my opinion the decision of the learned President that this deed Is a settlement within the meaning of section 5 of the Matrimonial Causes Act, 1859. Cannot be supported, for the plain reason that the deed is not a settlement at all. If we were enquiring whether the deed ought to be set aside under section 47 of the Bankruptcy Act, 1883, different considerations would arise - considerations which are wholly irrelevant on the present occasion. I am inclined to say that the decision of the learned President himself in Chalmers v. Chalmers is directly In point, and Is to be preferred to his decision in the present case. I do not, however, rest my decision upon Chalmers v. Chalmers: I base it upon the general ground that this deed is not a 'settlement' in any sense, and cannot therefore be a settlement within section 5".


This decision is binding on this Court and unless it can be validly distinguished is in my opinion conclusive in favour of the Appellant.


Some difficult questions have no doubt arisen where even though there is en absolute gift yet the Courts, again giving a wide interpretation to the section, have found a settlement to be in existence at the material date. Such a case was envisaged Sir Francis Jeune during the argument in Chalmers v. Chalmers, when he said: "Supposing the wife made him a present of an annuity that would not he a settlement".


This question fell for decision in ( Bosworthick v. Bosworthik 1927 Probate, page 64). There a bond had been executed by a wife securing to her husband an immediate annuity of £300 for his life. Upon the dissolution of the marriage the wife applied for an order extinguishing her liability under the bond. It was unsuccessfully argued on behalf of the husband that the giving of this bond was not a settlement by the wife upon the husband and accordingly the Court gave the answer to the question earlier posed by Sir Francis Jeune different from the one which in the Chalmers case he had been Inclined to give.


In reaching its decision the Court expressly based itself on an earlier decision of the Court of Appeal in ( Dormer v. Ward 1901 Probate, page 20), where...

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