Wilson v Wilson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CAIRNS,SIR GORDON WILLMER |
| Judgment Date | 18 June 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0618-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 June 1975 |
[1975] EWCA Civ J0618-2
In The Supreme Court of Judicature
Court of Appeal
On Appeal from Stockton-on-Tees County Court
Lord Justice Cairns
Lord Justice Scarman
Sir Gordon Willmer
Mr. T. X. EARNSHAW (instructed by Messrs Mills, Best & Wilson, Huddersfield) appeared on behalf of the Appellant.
Mr. A. J. C. LODGE (instructed by Messrs Alex Lauriston & Son, Middlesbrough) appeared on behalf of the Respondent.
(As approved)
This is an appeal from a decision of Judge Gill at Stockton-on-Tees County Court on the 7th May of this year where he held that a wife was entitled to apply for a lump sum, not having applied for it in her petition and not having obtained the leave of the court to make such an application.
The matter arises in this way. Section 23 of the Matrimonial Causes Act 1973 deals with financial provision orders. Section 24 deals with property adjustment orders. Section 21 gives definitions of the two expressions bringing within the expression "Financial provision order" inter alia a periodical payment order and a lump sum order under Section 23 and bringing within property adjustment orders orders for transfer of property and other forms of order which may be made under Section 24.
In the Matrimonial Causes Rules 1973 Rule 68(1) provides — and I leave out the immaterial words — "any application by a petitioner… for (b) a financial provision order, (c) a property adjustment order, shall be made in the petition." Then sub-rule (2), "Notwithstanding anything in paragraph (1) an application for ancillary relief which should have been made in the petition… any be made subsequently (a) by leave of the court either by notice in Form 11 or at the trial". Then sub-rule (3): "an application by the petitioner… for ancillary relief, not being an application which is required to be made in the petition… shall be made by notice in Form 11".
Now the history of this matter is as follows. These parties were married on the 20th October 1953. They have five children, three of them are grown up and two of them are with the wife. The spouses separated in September 1972 and on the 2nd February 1973 the wife's solicitors wrote to the husband, who is himself a solicitor, saying that the wife had consulted them with a view to a divorce, which they understood would not be resisted by the husband. He replied on the 20th February by letter in the course of which he said: "She has outlined to me the type of allegations she might make and, if she petitions and does not unduly deviate from those, I shall not defend provided that on the proceedings, (and without seeking to oust the jurisdiction of the court) she does not seek and she would then be prepared to say that in the future she will not seek: (a) any ancillary relief other than in respect of our children and (b) any order for costs against me, and then I am prepared to make to her a voluntary payment of one half of the net proceeds of sale of the former matrimonial home, (subject to the deduction of the total paid on account mentioned below), and a further sum of £40 towards her costs".
Further correspondence took place between the wife's solicitors and the husband. On the 16th March the wife's solicitors wrote, "We are not prepared to advise your wife to release her right as to maintenance and we note that she needs some money very badly. Will you kindly let us know what you propose to do about the immediate payment so far as the children are concerned". And then at the end of the letter, "We might be able to come to a solution in this matter if you would pay the sum of £12.50 free of tax for each child" and so on.
The wife's petition was presented on the 25th April 1973. It was a petition on the ground of alleged unreasonable behaviour, and the ancillary relief which was prayed was maintenance pending suit and permanent periodical payments order for herself and the two youngest children.
On the 25th May 1973 the wife's solicitors wrote, referring to a letter that the husband had written on the 4thMay drawing attention to the reported cases and saying, "We would advise that, in view of your attitude, the only course available to us is to advise our client to have the divorce proceedings adjourned and leave to amend the petition to claim relief under Sections 2, 3 and 4 of the Matrimonial Proceedings and Property Act 1970", those being the sections then dealing with financial provisions and provisions for children and adjustment of property. No application for leave to amend was made at any time. On 2nd July 1973 the suit was heard undefended and a decree nisi was pronounced.
In November 1973 the wife put forward her claim for periodical payments, and a lump sum order and a transfer of property.
There was some dispute at the hearing before Judge Gill as to whether the wife had obtained leave under Rule 68(2) to make those applications, but the matter proceeded before the learned judge upon the basis that leave had not been given, and the decision which he made was that the wife was entitled to pursue her application for a lump sum order, which was the only...
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官 對 李
... ... 36. In the Hong Kong Case Chow So Kam Lin v Chow Shu Sun [1986] HKC 72, the Court of Appeal applied Wilson v Wilson [1976] Fam 142. In Chow , the wife only applied for periodical payments for herself in her petition. Subsequently, the lower court made an ... ...
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Chow So Kam Lin v Chow Shu Sun
...in the Petition. Therefore, he said, the order for transfer of property was made without jurisdiction. He relied upon Wilson v. Wilson 1976 Fam. 142, where the circumstances were somewhat similar. As here the petitioner presented a petition in which she prayed for periodical payments for he......
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M v S
...Chaterjee 1976 Fam 199). 36. In the Hong Kong Case Chow So Kam Lin v Chow Shu Sun 1986 HKC 72, the Court of Appeal applied Wilson v Wilson 1976 Fam 142. In Chow, the wife only applied for periodical payments for herself in her petition. Subsequently, the lower court made an order for transf......