SEPARATION AGREEMENTS AND NATIONAL ASSISTANCE
| Date | 01 November 1956 |
| Author | L. Neville Brown |
| Published date | 01 November 1956 |
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00381.x |
SEPARATION AGREEMENTS AND
NATIONAL ASSISTANCE
IN
a previous article the writer discussed the liability to maintain
one’s spouse and children now imposed by the National Assistance
Act,
1948,
s.
42,
and the enforcement of this liability by the
National Assistance Board under section
48,
both of which sections
were found to have roots deep in the earlier poor law. The object
of the present article is to explore the relation of this liability
for the purposes of national assistance to that general common law
liability of a husband to maintain his wife, which she may today
enforce either by pledging his credit
or
by the more effective
statutory remedy of obtaining an order for a regular money pay-
ment from the justices
or
the High Court
on
the ground of wilful
neglect to maintain her.
In
particular, it is proposed to examine
the defences which have protected the husband from having such
an order made against him and to consider their validity in
releasing him from his liability under section
42.
For
in recent
cases there has been the suggestion that the two liabilities remain
to some extent distinct and that what may be a defence to the
one is not necessarily a defence to the other.
Of these cases the latest are
Stropher
v.
National Assistance
Boarda
and
National Assistance Board
v.
Parkes,l
in which the
important issue was the effect of a consensual separation
on
the
husband’s liability under section
42
for hie wife’s maintenance.
They were heard together before the Divisional Court of the
Queen’s Bench Division,
Parkes’
case being subsequei .cly afilrmed
by the Court of Appeal.$ Decided since the previous article, these
cases develop significantly the earlier decisions
on
this section
in
National Assistance Board
v.
Wilkinson
and
National Assistance
Board
V.
Prisk,s
which were there discussed;
Parkes’
case also
makes
a
far-reaching extension of the principle in
Tulip
v.
Tulip
concerning the ineffectiveness of separation agreements
to
oust the
jurisdiction of the court in matters of maintenance.
All the four cases
on
national assistance came before the
Divisional Court
as
cases stated from justices, to whom the National
Assistance Board had applied by complaint
for
an order against
the husband under section
48
of the Act of
1948,
which,
it
will
be remembered, enables the Board to recover a contribution
:195G) 18
M.L.R.
pp.
110-119.
I9661 1
Q.B.
486; [l96G] 1
All
E.R.
700.
:l9GG] 2
Q.B.
606;
[19GG]
3
All
E.R.
1.
119523 2
Q.B.
648; [1952] 2
All
E.R.
266.
:lo541 1
W.L.R.
443; [19G4] 1
All
B.R.
400.
:1961]
P.
378; [1951] 2
All
E.R.
91.
628
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