Sugden v Sugden
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE HODSON,LORD JUSTICE MORRIS |
| Judgment Date | 17 December 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J1217-1 |
| Date | 17 December 1956 |
| Court | Court of Appeal |
[1956] EWCA Civ J1217-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Denning
Lord Justice Hodson and
Lord Justice Morris
Mr. R.J.A. TEMPLE, Q.C. and Mr. P.R. HOLLINS (instructed by Messrs. Blundell Baker & Co., Agents for Messrs. T.E. Sugden, Scott & Horsfall, Keighley) appeared on behalf of the Appellant (Executrix of deceased Husband).
Mr. G.H. CRISPIN and Mr. C.H. LUSH (instructed by Messrs. Haslewood, Hare & Co.) appeared on behalf of the Respondent (wife Petitioner)
Mr. Thomas Edward Sugden married his first wife in January, 1927. They were divorced on the 12th February, 1945, having then two children, a boy of 8 and a girl of 4. The wife re-married on the 31st July, 1945. On the 25th April, 1946, after the wife's re-marriage, an order for maintenance was made, is these terms: "It is ordered that Thomas Edward Sugden theRespondent do pay or cause to be paid to marjorie sugden the petitoner during their joint lives untill further order, as from the 13th day of May 1946 maintenance for herself at and after the rate of one shilling per annum, the said sum to be payable monthly and that the said Respondent do pay or cause to be paid to the said Petitioner until further Order until Adam Sugden and Ann Sugden the children issue of the carriage between the parties shall respectively attain the age of 21 years as from the said 13th day of May 1946 maintenance for the said children at and after the rate of £300 per annua less tax for each child, the said sums to be payable monthly". The husband paid under that Order quite regularly. the husband himself also re-married. He died on the 22nd June, 1955, having paid up to the date of his death every penny payable for the maintenance of the children. The question in this case is this: whether his estate after his death is liable to pay the maintenance of £300 a year lees tax for the children until they are 21. Mr. Justtice karminski has so held. There is an appeal to this Court.
The husband was a solicitor in practice in the north of England. Presumably he earned money in his work, but in addition he was a man with substantial capital assets. In 1952 he made a will providing some £6,000 for the children, but it appears that before his death he revoked that Will and made another Will on the 23rd March, 1955, about a couple of months before he died. By his last will he cut out the children and gave the whole of his estate absolutely to his second wife. We are told that the children have applied to the chancery Division under the inheritance (Family Provision) Act, 1938, asking that provision should be made for them out of the assets; but that matter has not yet been determined. It in standing over pending the decision of this present case, because it is bound to be affected by what we decide today Under the Order, the maintenance of one shilling a year for the wife is only payable "during their joint lives". It ends, therefore with the husband's death. But the maintenance for the children is not so limited, at any rate not in express terms. TheOrder is "that the said Respondent do pay or cause to be paid" to the petitioner the sum of £300 a year less tax for each child. But it is to be noticed that it is only the Respondent who has to pay, not his personal representatives. It is an obligation which is personal to him and ends with his death. It only subsists during his lifetime. The father is to pay only so long as he is alive to pay. A similar interpretation was put by this Court on somewhat similar words in Hinde v. Hinde (1953, 1 Weekly Law Reports, page 175, particularly by Lord Justice Birkett at page 179)
If that is the proper interpretation of the Order, It is the end of this case. The father fulfilled his obligations during his lifetime: and after his death there was no obligation on anyone to pay. The Order does not say that his estate is to pay or that his personal representatives are to pay maintenance for the children. The obligation is at an end.
I would like to add that. If it is desired to provide for maintenance for the children after the father's death, the proper way is to order the father during his lifetime to make a secured provision for the children by putting aside a fund on their behalf. That is contemplated by section 26 sub-section 3 of the 1950 Act. In the absence of a secured provision, I doubt whether the Divorce Court has any jurisdiction to order a man's personal representatives to pay maintenance for his children after his death. This is an additional reason for construing this Order as I have done, so as to ensure that the Court does not go beyond its jurisdiction.
The Judge was much influenced by section 1 of the Law Reform (Miscellaneous Provisions) Act, 1934, which he thought applied so as to make the sums for maintenance continue after the father's death. I do not agree with this view. The section only applies to "causes of action" which subsist against the deceased at the time of his death. The Legislature bad particularly In mind causes of action in tort which used to fall with the death of either party under the old Common Law maxim actio personalis moritur cum persons. "Causes of action" in the section means, I think, rights which can be enforced - or liabilities which can beredressed - by legal proceedings in the Queen's Courts, These new survive against the estate of the deceased person. "Causes of action" are not, however, confined to rights enforceable by action, strictly so called - that is, by action at law or in equity. They extend also to rights enforceable by proceedings in the Divorce court, provided that they really are rights and not mere...
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