Tucker v Tucker
| Jurisdiction | Bermuda |
| Judge | Blair-Kerr, P.,DaCosta, J.A.,Smith, J.A. |
| Judgment Date | 11 July 1983 |
| Neutral Citation | BM 1983 CA 26 |
| Docket Number | Civil Appeal No. 21 of 1982 |
| Court | Court of Appeal (Bermuda) |
| Date | 11 July 1983 |
Court of Appeal
Blair-Kerr, P.; DaCosta, J.A.; Smith, J.A.
Civil Appeal No. 21 of 1982
Jurisdiction - Courts — High Court — Respondent wife sought and granted leaved to apply for ancillary relief under provisions of Matrimonial Causes Act — Husband appealed decision — Wife's marriage was dissolved in 1970 — Prior to 1974 Act High Court had no jurisdiction to grant orders sought — Whether 1974 Act retrospective — Whether court had jurisdiction to grant order sought by virtue of provisions of Act of 1974 in respect of parties to a marriage which had been dissolved five years before the coming into force of the said Act — Appeal allowed.
Family law - Husband and Wife — Ancillary relief — Application under Matrimonial Causes Act, 1974 by wife for maintenance of wife and child — Application for lump sum order and/or property settlement — Orders granted — Appeal and cross-appeal — Whether 1974 Act was intended to have retrospective effect — Whether court had power to invoke provisions of Act of 1974 in favour of wife, her marriage having dissolved in 1970 — Finding that except as provided in transitional provisions, no part of the Act operated retrospectively and consequently court had no jurisdiction to invoke provisions of Act of 1974 in favour of wife/respondent — Appeal allowed.
The parties were married on 6th December 1951. He was then 19 and she was 21 years of age. They had seven children as follows:
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(1) Terry Roslyn Elizabeth born 15th May 1952.
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(2) Robert George Alastair born 8th October 1953.
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(3) Aaron Charles Wendell born 23rd October 1955.
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(4) Diek Averell Gray born 20th April 1958.
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(5) Trevor Axel Leroy born 5th November 1961.
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(6) Valence Juliette Alice born 14th February 1963.
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(7) Antanella Patrice Bennett born 9th January 1967.
The parties separated in August 1962. According to the wife, the period of separation lasted until November 1967. Valente was, presumably, conceived before August 1962; and the parties must have cohabited for a short time at least in, or shortly before, March 1966 i.e. 9 months prior to the birth of Antanella in January 1967. There was what the wife calls a “reconciliation of two or three months” after November 1967 and they separated permanently in 1st February 1968.
The wife's petition is dated 22nd July 1969. She sought:
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(1) Dissolution of the marriage on the ground of the husband's cruelty;
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(2) Custody of the children and
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(3) Maintenance for herself and the children.
The suit was undefended. The decree nisi dated 27th November 1969 was made absolute on 8th January 1970.
Some four years after the original separation, the wife applied to the magistrate pursuant to the provisions of the Married Women'sProtection Acts; and on 20th July 1966, the Magistrate made the following order:
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(1) That the wife be no longer bound to cohabit with the husband;
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(2) That the legal custody of the six children then born be committed to the wife;
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(3) That the husband pay to the wife, through. the Collecting Officer of the court, the sum of £22, such sum to be apportioned as to £8 for the wife and £2 for each of the six children and £2 for the then unborn child. (Antanella was born on 9th January 1967).
At the then rate of exchange ($2.40), £22 was equivalent to $52.80; but the husband in fact paid to the Collecting Officer $60 per week; and we were informed that this continued till the commencement of the proceedings now under appeal. As each of the elder children reached 16 years of age and ceased to be dependent, sums progressively less than $60 per week were paid by the Collecting Officer to the wife, and the balance with the Collecting Officer accumulated. In April 1980, there was a balance of $1,600; and the husband ceased paying fir a time; but according to the papers placed before us, by July 1981, there was still a balance of $810 with the Collecting Officer.
The Petition was filed pursuant to the provisions of The Matrimonial Causes Act 1943; and in 1969/70 in Bermuda there were no legislative provisions comparable to ss. 27(1) and 28(1) of The Matrimonial Causes Act, 1974 (No. 74 of. 1974). The 1943 Act was repealed by s. 52 of the 1974 Act. This Act came into operation on 1st January 1975 - not on 1st January 1974 as stated on page 1 of Title 27, item 3. (vide S.R. & 0. No. 61 of 1974, published in the Official Gazette of 16th November 1974).
By summons dated 28th October 1980 (that is to say, 18 years after the original separation, nearly 11 years after the decree nisi was made absolute, and nearly 6 years after the 1974 Act became operative), the wife sought the following relief:–
“That (the wife) be at liberty to apply for a property adjustment order and/or a lump sum order notwithstanding that a claim for the same was nest made in the petition herein.”
Obviously, the wife's advisers had in mind rule 68(2) of The Matrimonial Causes Rules 1974 which provides that an application for ancillary relief “which should have been made in the petition”, but wasn't, may nevertheless be made by leave of the court.
The application came before Mr. Justice Melville on 16th April 1981. Mr. Cooper, who appeared for the wife, cited Chaterjee v. Chaterjee (1976) 1 All E.R. 719 and submitted that the curt had jurisdiction to make orders pursuant to ss. 27 and 28 of the 1974 Act. Mrs. George, who appeared for the husband, did not question Mr. Cooper's submission; and the learned judge granted leave as sought.
The Notice of application for ancillary relief is dated 24th April 1981. It gave notice of the wife's intention to apply for a “lump sum or property adjustment order”.
On 14th October 1981, the Supreme Court ordered that the husband should pay to the wife, through the Collecting Office of the ‘Magistrate's Court, $40 per week for the support of herself and $40 per week for the support on Antanella, the only dependent child, such payments to commence as from 22nd May 1981. The court revoked the Order of 20th July 1966 and adjourned the application for a lump sum or property adjustment order.
That application came before the Supreme Court on 13th and 18th August 1982. The question of jurisdiction was not raised, and on 25th August 1982, the Chief Justice ordered as follows:–
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(1) That the husband make a lump sum payment of $45,000 to the wife, on or before 1st December 1982 failing which the matrimonial home be sold and after discharge of the balance of the mortgage and other expenses, the sum of $45,000 be paid to the wife out of the proceeds of sale.
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(2) Until the $45,000 be paid, the husband to pay the wife $200 per week as a periodical payment, such payments to commence as from 27th August 1982.
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(3) Between 22nd May and 27th August 1982, the husband to pay $40 per week to the wife.
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(4) The husband to pay the wife $40 per week commencing 27th August 1982 in respect of the child Antanella.
The husband's appeal and the wife's cross-appeal were heard by this court on 5th November 1982. Mr. Riihiluoma appeared for the husband and Mr. Cooper appeared for the wife. The question of jurisdiction was not raised by counsel. Judgment was reserved.
When it came to drafting my judgment, it seemed to me that the question whether the 1974 Act was intended to have retroactive effect was fundamental to the issue before the Court and that it should have been argued. I therefore had a look at a number of English authorities commencing with Chaterjee.
The facts in Chaterjee were exceptional. The parties were married in March 1952 and divorced in December 1955; but they lived together again from 1961 to 1974 - fir S years as husband and wife and from 1966 under the same roof running the business of an old people's home. As Ormrod L.J. said, “they might as well have been a married couple up to 1974; all that was lacking was an appointment at the Registry office”. (p. 725).
On 24th June 1974, Mrs. Chaterjee was granted leave under rule 68(2) of the Matrimonial Causes Rules 1973 to apply fir a lump sum and/err property adjustment order under ss. 23 and 24 of the Matrimonial Causes Act 1973. On appeal, Arnold J. upheld the Registrar's decision. Mr. Chaterjee appealed to the Court of Appeal contending (i) that the court had no power to grant relief in a case where the decree of divorce had been granted before the enactment of ss. 2 and 4 of the Matrimonial Proceedings and Property Act 1970, which conferred the powers subsequently re-enacted in ss. 23 and 24 of the 1973 Act, and (ii) that in any event the curt ought to refuse leave in the exercise of its discretion.
On the jurisdiction point, the court held that ss. 2 and 4 of the 1970 Act, which empowered the court to make orders for the payment of a lump sum or the transfer of property “on granting a decree of divorce …. or at any time thereafter”, were retrospective in effect and so empowered the curt to make an order in a case where the decree had been granted before the commencement of the 1970 Act.
From the report of the case in the All England Reports, it would appear that the decision on the jurisdiction point was not unanimous. The president (Stamp L.J.) said (p. 726):–
“……. at the conclusion of counsel fir the husband's opening speech I thought that in the phrase on granting a decree …. or at any time thereafter', the wards on granting a decree' pint to a decree made after the coming inter force of the Act and that the superadded words or at any time thereafter' accordingly referred to a period subsequent to a decree so made. But as Ormrod L.J. and Sir John Pennycuick were clearly of the contrary opinion we did not call on counsel for the wife on that part of the case ……. “
Sir John Pennycuick said (p. 725):–
“If one could approach the formula contained in s. 2 of the Matrimonial Proceedings and Property Act 1970, and...
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