Curtis v Curtis 1989 Civil Appeal No 15

• Jurisdiction: Bermuda
• Judgment Date: 16 November 1990
• Docket Number: Civil Appeal No. 15
• Date: 16 November 1990
• Court: Court of Appeal (Bermuda)

In the Court of Appeal for Bermuda

da Costa, Acting P

Civil Appeal No. 15

Colin McKenzie Curtis

Appellant

and

Celia Ann Curtis

Respondent

Mr. Williams for the Appellant

Mrs. Marshall for the Respondent

Smith v Smith 1985 Civil Appeal No. 3

Hanlon v HanlonUNK [1978] 2 All ER 889

Smethurst v SmethurstUNK [1971] 3 All ER 1110

Lewis v LewisUNK [1977] 3 All ER 992

The Abidin DaverUNK [1984] 1 All ER 470

Whayman v Whayman 1989 Civil Appeal No. 1

Marriage for the sole purpose of legitimising child — Ancillary relief — Child support — Parents have an inability to surrender a child's right to maintenance — Circumstances of parties at the time of the hearing

JUDGMENT

This is an appeal by a mother from an order made by Austin Ward J. on 25th August 1989. He had before him two applications, the first being the Application for Ancillary Relief dated 7th September 1988 and which sought in particular an order that the father of the child should make payments for its maintenance. The second is a summons of 13th March 1989 seeking an order that clause 4 of a separation agreement which the parties entered into be varied so as in effect to quantify the father's obligation under the Separation Agreement. It is clear that the applications were in the alternative; further although In acceding to the application in the concluding portion of his judgment the learned judge did not specifically designate the application it is apparent from reading of the judgment that he was alluding to the second application of 13th March 1989.

This appeal raises a number of knotty points. Some are of general interest but most are peculiar to the fact of this case, and arise from the wording of a Separation Agreement that can hardly be described as the quintessence of clarity. I shall endeavour to deal with the points which arise in turn.

The parties were married on the 31st March 1983; they never cohabited. There is one child of the family, who was born on 24th January 1983 prior to the marriage. As the learned judge observed the primary. if not the sole purpose of the marriage, was to legitimate the child Alexander. The marriage was dissolved on 18th June 1987.

The appellant on his evidence was a reluctant groom who contracted a marriage largely on the assurances of the respondent's mother, Mrs. Waters, that he would not have to shoulder the responsibilities of a father, if he went along with their scheme for legitimating the child. He relies in particular on an excerpt from an unsigned letter which Mrs. Waters allegedly wrote to him on the 23rd February 1983.

It reads in part as follows:

‘If you and Celia decide to get married the first thing to do is to agree on a marriage contract. I would suggest the following:

• 1. Either should be free to get an urcontested divorce at any time.

• 2. No alimony would be sought. No claim would be made on the father for child support and the mother would have custody.

• 3 Neither to claim on the other's estate.’

On the day of the marriage the parties entered into a Pre-Nuptial Agreement wherein it is stated that ‘the parties have agreed to be married for the primary purpose of legitimating their child Alexander Walsingham Palmer who was born on the 24th day of January 1983’—an objective which was achieved by the marriage by virtue of section 2 of the Legitimacy Act 1933.

Immediately after the marriage the parties entered into a Separation Agreement whereby the parties agreed to live separate and apart from each other as from the date of the marriage and the sole custody care and control of the child would be given to the mother.

Clause 4 of the Separation Agreement reads:

‘The husband undertakes to use his best endeavours in general terms to contribute on a voluntary basis to the support and education of the child,’

It is not surprising that before the learned judge and before this Court the interpretation of clause 4 was a matter of acute controversy, as to the nature of the obligation that these words were intended to impose. It will be necessary hereafter to examine the views contended for when I come to deal with the relevant ground of appeal.

Clause 6 of the same Agreement reads:

‘The parties agree that the financial provisions relating to the child in clause 4 hereof shall be in full and final satisfaction of all claims that either may have against the other whatsoever for financial provision including periodical payments and a property adjustment order. Further, the husband acknowledges and accepts that any such claims on his part shall upon decree absolute of divorce stand dismissed.’

As to the effect of this clause the learned judge observed us follows:

‘In So far as clause 6 purports to the jurisdiction of the court to consider the question of maintenance for the child it is without legal effect. For neither parent has the authority to sign away the right of a child in respect of future maintenance from a person who has a legal responsibility to maintain such a child.’

On the making of the Decree Nisi on 6th May 1987 the Court ordered that the Agreement dated 31st March 1983, except for clauses 1, 5 and 9, be made an order of the Court. Accordingly clauses 4 and 6 as set out herein constitute an order of the Court.

Section 35 of the Matrimonial Causes Act 1574 provides for the variation, discharge and enforcement of certain orders: sub-section 7 of that section so far as material enacts that—

‘In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates …’

The respondent sought a variation of the order based on clause 4 primarily on the ground that her expenses in looking after Alexander had substantially increased. More particularly she sought an order that the father should pay the school fees of the child at Saltus Grammar School and in addition provide the child with major medical insurance. She for her part offered to meet all other expenses relating to the child. The school fees at Saltus Grammar School are in the region of $4,000 'per year. The cost of major medical insurance was not specified. The father had offered to pay one-half of the school fees and to provide the major medical insurance. The question before the...