Rowe v Rowe
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORR,LORD JUSTICE CUMMING-BRUCE,SIR STANLEY REES |
| Judgment Date | 10 April 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0410-7 |
| Date | 10 April 1979 |
| Court | Court of Appeal (Civil Division) |
[1979] EWCA Civ J0410-7
Lord Justice Orr
Lord Justice Cumming-Bruce and
Sir Stanley Rees
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On appeal from Order of Mr Justice Balcombe.
Miss LORNA COLE (instructed by Messrs Mark & Mann & Geffen, Agents for Messrs Davies, Thornton & Locking) Hull) appeared on behalf of the Appellant (Husband).
Mr R.A. STEVENSON (instructed by Messrs Payne & Payne, Hull) appeared on behalf of the Respondent (Wife).
Mr NICHOLAS WILSON (instructed by the Official Solicitor) appeared as amicus curiae.
This is a husband's appeal (for convenience I shall refer to the parties as the husband and the wife, although their marriage has been dissolved) against that part of an Order made by Mr Justice Balcombe on the 6th December of last year whereby he affirmed an Order of Mr Deputy Registrar Higgins on the 5th June of that year that the husband should pay maintenance at the rate of £3 per week in respect of each of two children, Simon, now nearly 7, and Samantha, now 5. On the same hearing the Deputy Registrar also ordered that the husband should pay maintenance at the rate of £6 per week for the wife, but the Judge reversed that decision and against that part of the Order the wife has not appealed.
The matter at issue on the appeal is one of law, whether the husband is estopped from denying that the two children in question are children of the family, and for that reason it is unnecessary to refer at any length to the matrimonial history. The parties were married on the 17th November, 1971, the wife being at that time pregnant with the elder of the two children in question, Simon, born on the 28th April, 1972, and she later gave birth to the child Samantha on the 9th October, 1973. She has never alleged that the husband is the father of Simon, but alleged that he married her knowing that she was pregnant by another man. The husband's account of that matter, contained in a letter written by his Solicitors on the 20th April, 1972, a few days before Simon was born, was that the wife had told him that he was the father. Shortly before Simon's birth the wife left the home of the husband's parents in which the parties had been living, and she has throughout accepted that the husband is not the father of Samantha, born on the 9th October, 1973, and at the times of whose conception and birth he was in fact serving aprison sentence.
In September, 1972, the husband presented a nullity petition on the ground that at the time of the marriage the wife had been pregnant by another man, and in that petition he alleged shat there were no children of the family, and the wife in her acknowledgment of service said that she did not intend to defend the suit; but the petition, for reasons which are unexplained on the material before us, was dismissed on the 29th January, 1973.
On the 17th December, 1976) the wife presented a petition for divorce on the ground of two years' separation and the husband's consent and in that petition alleged that there were two children of the family, Simon and Samantha, of whom he was not the father but had accepted and supported them as children of the family, and she sought dissolution of the marriage, custody of the children and ancillary relief. The husband, who was in prison but was represented by Solicitors, signed an acknowledgment of service stating that he consented to a decree being granted and in answer to the question on the printed form of acknowledgment "Even if you do not intend to defend the case, do you wish to be heard on the claims in the petition for … (b) custody of the children?" he replied "No", and in answer to the further question whether he wished to make any application for (a) access to the children and (b) custody of the children, he also answered "No", there being nothing on the form to indicate that such answers could be read as an acceptance by him that the children were children of the family.
The case came on as an undefended case before Judge Walker on the 7th June, 1976, who granted a decree nisi and also ordered that the two children should remain in the custody of the wife until further Order; that Order being made under Section 42 of theMatrimonial Causes Act, 1973, which provides as follows: "The Court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18 in any proceedings for divorce", with, the consequence that it confers no jurisdiction to make an Order for custody save in relation to a child of the family.
Judge Walker was not, on the hearing of the petition, satisfied as to the arrangements for the children and ordered a Welfare Report on the "basis of which Judge Stephen, on the 25th August, 1976, was able to certify under Section 41 of the Matrimonial Causes Act, 1973, that the arrangements for the children were the best that could be devised in the circumstances, following the wording of Section 41 and referring to the two children as being "the only children who are or may be children of the family".
There followed on the 5th January, 1978, the Order of the Deputy Registrar for periodical payments for the children and for the wife, and on the 8th June, 1978, Judge Walker ordered that the husband's appeal from that Order be heard by a Judge of the family Division.
On the appeal, Mr Justice Balcombe made a number of findings of fact in favour of the husband's claim that he was under no liability to pay maintenance, including a specific finding that the husband had never accepted the children as members of the family, and as to the validity of that finding no issue arises on this appeal. Indeed, it is reasonably clear that the wife herself was not concerned to pursue the claim and that the real issue in the case is whether the children are to be supported by the Department of Social Security or by the husband.
On the appeal to Mr Justice Balcombe it was argued for the wife that, notwithstanding the finding of fact that the husband had never accepted the children as children of the family, the Judge was bound to hold that they are children of the family on the ground that by the terms of Section 42 of the Matrimonial Causes Act, 1973, there is no jurisdiction to make a Custody Order save in relation to a child of the family, and that the husband was estopped from denying that the children in question were children of the family.
In support of this argument, Counsel for the wife relied on three authorities, Lindsay v. Lindsay, 1934- Probate, 162, a decision of Sir Boyd Merriman; Nokes v. Nokes, 1957 2 All England Reports, 535, a decision of this Court; and G. v. G., 1970 3 All England Reports, a decision of Mr Justice Brandon, as he then was.
In Lindsay v. Lindsay Sir 3oyd Merriman was concerned with the question whether a child was a child of the spouses and not with the more recent concept of a child of the family, and he held that a Custody Order involved by necessary implication a decision on the issue whether the child was a child of the spouses.
In Nokes v. Nokes it was not argued in this Court that Lindsay v. Lindsay was wrongly decided, but this Court distinguished Lindsay v. Lindsay on the ground that there the decision that the child in question was a child of the marriage was properly made by a Judge, whereas in the Nokes case the decision had been made by a Registrar who had no jurisdiction to mite it.
In G. v. G. Mr Justice Brandon was concerned with facts closely similar to those of the present case and, unlike Sir Boyd Merriman, was concerned with the modern concept of a child of the family. He considered the Lindsay and Nokes cases and took theview that, although in Nokes the members of this Court had not expressly considered whether Lindsay was rightly decided, they had impliedly approved it but had distinguished it on the facts. He referred to certain more recent authorities on issue estoppel and considered it arguable that the Custody Order with which he was concerned, having been made in an undefended suit and without the husband being present, was in the nature of a default judgment. He came, however, to the conclusion that it was not open to him, having regard to the Lindsay and Nokes cases, to hold that no estoppel arose.
On the present appeal, having heard arguments for the husband and the wife, we invited the assistance of the Official Solicitor as amicus curiae, who instructed Mr Wilson from whom on the adjourned hearing we heard a very helpful argument.
It has not been in dispute on the appeal that, if the decision in Lindsay is good law, the questions which the respondent to a divorce suit is invited to answer on the printed form of acknowledgment of service constitute a trap for the respondent who is acting in person and also a trap for the legal profession, not all of whose members can be expected to be aware of the Lindsay, Nokes and G. v. G. decisions, and there being nothing on the printed form to alert them to the effect which a negative answer on the form may have.
Mr Wilson referred us to a number of authorities on issue estoppel subsequent to the decision in Lindsay v. Lindsay which, he claims, throw serious doubt on the wide proposition laid down in Henderson v. Henderson, 3 Hare, 100, by Vice-Chancellor Wigram, and has also drawn our attention to decided cases which restrict the application of estoppel in the field of matrimonial law. The statement made by Vice-chancellor Wigramwas that "The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought...
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