In the course of a settlement of divorce proceedings, a wife agreed to withdraw her claim for maintenance. She sought to re-open it.
Held: the principle of Hyman v. Hyman applied, notwithstanding that the agreement between the parties had been approved by the court, under section 5 of the 1963 Act.
Sir Gordon Willmer said: ‘There is no doubt that no agreement made inter parties can ever deprive the court of its right to review the question of maintenance for a wife, as was decided by the House of Lords in Hyman v. Hyman (1929) AC 601. I do not think that anything contained in the new provisions of the Act of 1965, giving the court the power to approve reasonable arrangements between the parties, is such as to cast any doubt at all upon the continuance in force of the doctrine enunciated by the House of Lords in Hyman v. Hyman (1929) AC 601. There is, therefore, scope for two diametrically opposite views. On the one hand, it may be said that the court has an absolute right to go behind any agreement between the parties so far as the question of maintenance for a wife is concerned. On the other hand, there is the judge’s approach to the problem, that is, that where there is an agreement between the parties approved by the court, effect must be given to it. Under the one view, the right to award maintenance would be completely uninhibited, whereas under the other it would be strictly curtailed by the arrangement made between the parties and approved by the court at the time of the trial.
Mr. Dean, as I understand his argument, contended for an intermediate position between those two extremes. As I followed him, he said that the fact of this arrangement having been made and having been approved by the court is merely one factor amongst the numerous factors that have to be taken into consideration when the court is called upon to award maintenance to a wife following a divorce case. I suppose the reait of this argument would be to limit or inhibit to some extent the generosity of the registrar or judge in making an award of maintenance; that is to say, supposing he would, without any such arrangement having been made, have been disposed to award X a week, he must now in deference to the arrangement made between the parties, to which some effect must be given, award only X minus Y. The difference between that and the judge’s view is that the judge held that it would not be right in the absence of proof of any unforeseen circumstances of the kind envisaged by the arrangement to make any award of maintenance at all.
On behalf of the husband, the judge’s conclusion was vigorously defended by Mr. Anns who said, and said very forcibly, that this was a perfectly valid agreement between two parties, both sui juris, arrived at with the assistance they had from their legal advisors and approved by the court. It was, therefore, something to which effect ought to be given unless compelling reasons to the contrary were shown. He added (I think with a good deal of force)ithat the fact that the court had given its approval to the proposed arrangement had put the stamp of reasonableness on the arrangement which was then being made, viz, that there should be no maintenance.’
and ‘I think . . that the existence of this agreement, having regard to the circumstances in which it was arrived at, at least makes it necessary for the wife, if she wants to justify an award of maintenance, to offer prima facie proof that there have been unforeseen circumstances in the true sense, which make it impossible for her to work or otherwise maintain herself. If that be right, I think it is quite plain that the wife here did not give such prima facie proof’.
Judges:
Sir Gordon Willmer
Citations:
[1970] 1 WLR 1219
Statutes:
Cited by:
Cited – Brockwell v Brockwell CA 5-Nov-1975
Ormrod LJ said: ‘But it must be a matter entirely for the judge to look at all the facts and the financial situation of each party and taking into account the fact that they made this agreement which to my mind is a very important piece of conduct . .
Cited – S v S FD 14-Jan-2014
The court was asked to approve a settlement reached under the IFLA arbitration scheme.
Held: The order was approved, but the court took the opportunity to give guidance. . .
Cited – Edgar v Edgar CA 23-Jul-1980
H and W separated and in 1976, without any pressure H and at the instigation of W, signed a deed of separation negotiated through solicitors. H agreed to purchase a house for W, to confer on her capital benefits worth approximately andpound;100,000, . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 04 May 2022; Ref: scu.519965