The Divorce Court's Jurisdiction to Order Interim Maintenance for Children

Publication Date01 Mar 1965
AuthorP. R. H. Webb
DOIhttp://doi.org/10.1111/j.1468-2230.1965.tb01059.x
MARCH
1965
NOTES
OF
CASES
213
by that third party, as damage done to him by
''
illegal means."
It
was
this inevitable consequence which seemed to the present
writer in
1961
to threaten to
"
outflank
"
the classical doctrines
of the law of contract, and made him assert that the dubbing of
a
breach of contract
"
illegal
"
was strictly, therefore, bad law.40
This new
''
illegality
"
is what should
be
reversed by a simple
statute, irrespective of any further amendments
of
the Trade
Disputes Act. Such a reversal would go far to head off new
developments in the judge-made common law of tort.
Most of those new developments would also be bad policy.
Their social impact would be mainly on labour law; their main
effect would be to weaken the legality of current trade union
activities.
It
is no great pleasure to watch experienced lawyers,
many exulting, even heedless, often angry at criticism, anxious
to paper over any cracks in the judicial edifice, rarely conscious
of
their own social policy assumptions, but confident
of
their
"
objectivity
"
with all the security which only that unselfconscious
enthusiasm can bring, hasten like their forebears, the jurists of
1901
and
1910,
to the support of judicial interl-entions in labour
law which not merely are novel, even questionable, law, but
may prove even more disastrous than their predecessors of the
Quinn,
Tag Vale
and
Osborne
decade, both for industrial relations
and for the common law itself. What is puzzling, but sociologically
interesting, is
why
(when all this
could
have happened in a dozen
cases after
1918)
did it happen in the sixties?
K.
W.
WEDDERBURN.
THE DIVORCE
COURT'S
JURISDICTION
TO
ORDER
INTERIM
MAINTENANCE
FOR
CHILDREN
IN
Ca,mmell
v.
Cammell,'
the husband and wife had been married
in England in
1954
and their child had been born in October
1959.
Some time in
1959
the husband, an artist, left the wife and went
to
live permanently in France. In April
1961,
however, he trans-
ferred his only asset in England of any value, the matrimonial
home in Hampstead, to his wife. Although it was transferred
subject to a mortgage, the wife estimated its value to her at the
time of the present suit at about
€3,000.
The husband had, he
said, no assets
or
income in France as he was living on the charity
of friends and patrons. Be that as it may, in June
1962
the wife
presented a divorce petition in England on the ground of desertion
39
See
J.
A.
Weir
[1964]
Camb.L.J.
225
(approving
of
the phenomenon), who
courageously carries the logic to its conclusion to make
every
deliberate breach
of
contract into
a
tort. "This must be
a
tort; it is still
a
grave heresy to
sag
60"
at
p.
232.
Winfield would surely have agreed with this comment.
(0
See
(1961) 24
M.L.R.
572
at
p.
577; (1964) 27
M.L.R.
257
at
pp.
260-267.
1
[1964]
3
W.L.R.
791; [1964] 3
All
E.R.
255.

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