Sterne v Sterne
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE ORMEROD |
| Judgment Date | 01 March 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0301-2 |
| Court | Court of Appeal |
| Date | 01 March 1957 |
[1957] EWCA Civ J0301-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson
Lord Justice Ormerod
- and -
Mr Justice Hallett.
MR GUY WILLETT(instructed by Messrs Balderston Warren & Co., Agents for Messrs Ratcliffe, Son & Henderson, Holston, Cornwall) appeared as counsel for the Appellant.
MR JOSEPH JACKSON(instructed by Messrs Craigen, Wilders & Sorrell) appeared as Counsel for the Respondent.
: This is an appeal by leave of this Court from an Order of Mr Justice Wallington dated 5th February 1957. The circumstances shortly were these, that on the 16th November, 1956 the petitioner, the present appellant, presented a petition for dissolution of her marriage from her husband, the respondent, on the ground of his adultery. She was marreid to him on the 4th July 1953 and they parted in February 1955. Her present claim is for alimony pendente lite. Her husband is a clerk in London and he earns about £700 a year gross and in addition to that he has a disability pension, which would not be subject to tax, of £1. 0s.6d. a week lkand he has virtually no capital above £100.
The financial position of the wife was this, that according to her affidavit, which was the only material before the Registrar who first dealt with the matter and the only material before the Judge, she is at present unemployed – the affidavit was sworn in January 1957 – and in receipt of National Assistance in the sume of £ 2.52.6d. a week, which is her only income. She is living with her sister at an address in Helston, Cornwall, to whom she pays £1. 10s.0d. a week towards the cost of her food and lodging; she formerly paid her sister £2 a week. Up to the 9 8th October 1956 she was in gainful employment, said to be seasonal, at a petrol station and receiving a weekly wage of £4. 4s.9d. Just before she and her husband parted in February 1955 she received from him £86, representing the amount due to her on the sale of some shares which stood in her name, and in addition she received about £15 from him over the following six months.
There is no detail given in either of the affidavits as to the circumstances in which those people parted; whether or not the wife deserted her husband does not appear. All that does appear is that she made no claim on him for support until these proceedings were instituted and that she did earn money in what she described as a seasonal employment untill the 8th October 1956.
The complaint of the wife is stated in the first aground of appeal; "That the learned Judge erred in holding that the receipt of the petitioner of national assistance benefit was income proper to be taken into account when deciding whether, and in what amount, the respondent should be ordered to pay alimony pendente lite". I think that is substantially the ground of appeal in this case because Mr Willett, who appears for the wife, was not, I think, able to argue that if the matter had been a matter of quantum only he could have asked this Court to interfere because matters of quantum are naltually matters left to be decided in almost every case by the first tribunal which has to exercise discretion in cases where quantum is involved. The right to alimony pendente lite is discretionary.
The present position is governed by Section 19 of the Matrimonial Causes?Act, 1950, sub-section 1 of which reads: "On any petition for divorce or nullilty of marriage, the court may make such interim orders for the payment of alimony to the wife as the court thinks just". There is no question but that in this case the wife is a competent suitor and is entitled to apply for alimony pendente lite, although the court in the exercise of its discretion will not be guided only by these figures of income disclosed by the respective parties. In this case there is nothing in the conduct of the parties, which, so far as I know, has been taken into account, and, indeed, the evidence on that matter is almost non-existent.
I return, therefore, to the only point which emerges in this case, whether as a matter of law the learned Judge was wrong in taking into account the receipt of public assistance by this lady is reaching the result which he did. In my judgment there is no ground for saying that the learned Judge erred in...
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