Shearn v Shearn
| Jurisdiction | England & Wales |
| Year | 1931 |
| Date | 1931 |
| Court | Probate, Divorce and Admiralty Division |
Divorce - Permanent Maintenance - Security - “Liberty to apply” as to Security - Principles of Security - Right of Wife - Means of Husband - Relative Considerations applicable to Orders to secure and Orders to pay Maintenance -
The Court has no power to reserve liberty to apply for security in making an order for maintenance under the Supreme Court of Judicature (Consolidation) Act, 1925 (15 & 16 Geo. 5, c. 49), s. 190, sub-ss. 1, 2, on a decree for divorce. The insertion of such a provision would permit the conversion at a subsequent date of an order to pay maintenance into an order to secure it, and this is ultra vires of the statute.
In considering the question of security which must thus be ordered in the first instance, if at all, the interests of both spouses are to be considered. The maintenance ordered will be secured as far as circumstances permit, but in cases where the nature of the means of the husband renders it impossible to secure the whole maintenance proper to be ordered, the question arises whether it is in the interest of the wife to order security of a part, as compulsion of the husband to realize or transfer assets in order to give security under sub-s. 1 may hamper him in earning the income out of which he may be ordered to make payments under sub-s. 2. The wife has no greater inherent right to security than to an order for payment simply. Her right is to present maintenance, and if the property of the husband produces no present income or if an order for security would for any reason, such as the husband's absence from the jurisdiction, be unenforceable, it is more in the wife's interest that an order for payments should be made than an order to secure.
Quaere whether an order to secure a lump sum can be enforced under the Administration of Justice Act, 1920 (10 & 11 Geo. 5, c. 81), ss. 10, 12.
CROSS-APPEALS from registrar's order for permanent maintenance.
The order was for the payment of 740 l. per annum free of tax with liberty to apply as to security and as to maintenance for the child of the marriage.
The petitioning wife asked by her appeal summons that the maintenance should be increased to 850 l. per annum free of tax, that the respondent should be ordered to give security or alternatively that the respondent should secure to the petitioner one-third of his capital or that he should be ordered to realize and settle such a sum out of his assets as the Court should think fit and that maintenance should be ordered for the child. The respondent by his appeal summons asked that the amount of maintenance ordered should be reduced to 708 l. less tax and that liberty to apply as to security should be deleted from the order.
The decree nisi was pronounced on April 11, 1929, and was made absolute on October 21, 1929. The only child was a boy born in August, 1924. The petitioner filed her petition for maintenance on July 15, 1929.
The summonses were adjourned into Court for argument.
The husband practised as a solicitor in the Malay States and thereby earned the whole of his present income, roughly taken at 2388 l. He had also a number of shares in companies domiciled in Malay which paid no dividend, some policies of trifling surrender value and a reversionary interest in a capital sum of 6000 l., the youngest of several tenants for life being sixty years of age. The reversion had no present value. It did not appear that the petitioner had any means.
Thomas Bucknill for the petitioner.
Noel Middleton for the respondent.
[It was agreed in the course of argument that any order for security must be made, if at all, in the first instance and could not be dealt with by giving liberty to apply for it. Discussion of this point is therefore omitted from this report. See the reasoning on the point in the judgment. The rest of the argument turned on the nature of the property of the respondent available and the quantum of the order, and the cases referred to are dealt with in the judgment.]
July 14. HILL J. In this case I have to deal with cross-appeals from an order as to maintenance. The registrar ordered the husband to pay 740 l. per annum free of tax and embodied in his order liberty to apply as to security and as to maintenance. Both husband and wife object to the amount. The wife further asks that an order as to security should be made. Counsel agreed that it was not within the power of the Court to embody in an order...
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