Tulip v Tulip
| Jurisdiction | England & Wales |
| Year | 1951 |
| Date | 1951 |
| Court | Probate, Divorce and Admiralty Division |
Husband and wife - Alleged wilful neglect to maintain - Application to High Court - Existing deed of separation.
In June, 1932, a husband and wife entered into a deed of separation, the husband covenanting (if certain stipulations were observed) to pay such sum as after the deduction of income tax would amount to and leave the net yearly sum of 156 l. These payments were regularly made. The wife covenanted to support and maintain herself out of that provision and out of her separate estate, or otherwise. In December, 1949, the wife asked the husband to increase the amount payable under the deed of separation. The request was refused, and she took out a summons in the High Court for increased maintenance, alleging that her husband had wilfully neglected to provide reasonable maintenance for her. She further asked the court to order the husband to secure such payments as might be ordered.
The husband stated in his affidavit that he relied upon the deed and upon the wife's covenants in it whether by way of estoppel or otherwise. It was conceded that since the date of the deed the husband's financial position had materially improved, while that of the wife, who was suffering from spinal arthritis, had deteriorated.
Held, that, despite the change in the respective positions of the parties the husband, who had faithfully carried out the terms of the deed, could not be held guilty of wilful neglect to maintain, which imports some element of matrimonial misconduct.
ORIGINATING SUMMONS by way of application for increased maintenance.
The applicant wife, and the respondent husband, were married in 1916. There were no children. On July 14, 1931, Langton, J., dismissed a petition by the husband for a decree of nullity of marriage on the ground of incapacity, and on June 30, 1932, the parties entered into a deed of separation.
By cl. 3 of that deed, the husband covenanted (if certain stipulations were observed) to pay during his life “to the wife during her life (if he should live so long) for her separate use without power of anticipation such a sum as after deduction of income tax shall amount to and leave the clear net yearly sum of 156 l ….”. The wife covenanted to support and maintain herself out of that provision and out of her separate estate or otherwise.
There was no clause in the deed by which the wife undertook not to take any proceedings for in any future proceedings.
There was no resumption of cohabitation after the deed had been executed, and the husband continued to make regular payments in accordance with its provisions.
After the deed was executed, however, the husband's financial position materially improved, while that of the wife, who had become an invalid suffering from spinal arthritis, had deteriorated; and it was suggested for the wife that, were the court to consider the respective means of the parties for the purpose of making an order, such and order would, on the customary calculations, provide for maintenance of over 1,000&L, a year less tax.
In December, 1949, the wife by her solicitors wrote to the husband asking him to increase the amount payable under the deed. The request was refused, and in 1950 the wife tools out an originating summons under s. 3 of the
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