Hannelore De Lasala v. Ernest Ferdinand Perez De Lasala
Read the full judgment text of CACV 6/1976 on BabelCite. This Court of Appeal judgment was delivered on 17 December 1976.
2. By a summons dated 1st August, 1975, the Wife applied to set aside or vary the consent order dismissing her prayers for financial provision for herself and the child of the marriage and also applied for orders for such financial provision. On the 19th January, 1976, the summons was, by leave, amended to include an application for variation of the financial arrangements contained in the three deeds. The summons was heard by Huggins, J. (as he then was) in January of this year who, upon an imme
Cited by 1 case
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CACV000006/1976
----------------- Coram: Pickering, J.A., McMullin and Leonard, JJ. Date of Judgment: 17th December, 1976. ----------------- JUDGMENT ----------------- Pickering, J.A. This appeal runs to jurisdiction. For the sake of convenience I will refer to the petitioner as "the Wife" and to the respondent as "the Husband" although that once mutual status has been terminated. The parties were married in Hong Kong on 17th February, 1966, and there is one child of the marriage now aged 10 years old. On the 31st October, 1969 the Wife commenced wardship proceedings and on the following day petitioned for divorce making allegations which the Husband indicated he would contest. In December, 1969, the Husband's solicitors intimated that, if certain arrangements as to custody and finance, which they set out in a letter to the Wife's solicitors, were acceptable to the Wife and if she would agree to petition for divorce solely on the ground of adultery, the Husband would neither defend that petition nor cross petition. The Wife agreed and on 16th January, 1970, by consent, Briggs, J. (as he then was) gave leave to file a further petition and to implement the proposed financial arrangements which were then contained in a Deed of Arrangement exhibiting two draft trust deeds. Pursuant to the leave granted, a second petition was presented on the 31st January, 1970 and on the 25th March of that year the first petition was dismissed by consent. On the 21st May, 1970, Briggs J. granted a decree nisi of divorce on the second petition and adjourned into chambers the matter of the maintenance and welfare of the child. On the same day the judge, by consent, made orders for custody and access, approved the Deed of Arrangmenet and ordered that upon the payment of the monies agreed to be paid under the Deed of Arrangement and upon the coming into force of the two trust deeds, the prayers for financial provision should stand dismissed. The monies were paid and the trust deeds came into force on the 30th May, 1970 upon which date the decree of divorce was made absolute. 2. By a summons dated 1st August, 1975, the Wife applied to set aside or vary the consent order dismissing her prayers for financial provision for herself and the child of the marriage and also applied for orders for such financial provision. On the 19th January, 1976, the summons was, by leave, amended to include an application for variation of the financial arrangements contained in the three deeds. The summons was heard by Huggins, J. (as he then was) in January of this year who, upon an immediate ruling, disclaimed jurisdiction. This appeal lies against that disclaimer from which, in one respect only, the learned judge resiled in his subsequent written ruling. 3. At the heart of the learned judge's ruling lay his acceptance of the proposition put forward on behalf of the Husband to the effect that, it having been agreed in the Deed of Arrangement sanctioned by Briggs, J. in 1970 that the Wife would make no further financial claim or demand against the Husband, she is now prohibited from making any financial application to the Court. It was common ground that the parties could not, by simple agreement, debar future financial claims either of a type which could have been made at the time of the decree absolute or of a nature which did not then exist but which came into being only by virtue of subsequent legislative provisions. The argument on behalf of the Husband in the court below however was that the court had powers which the parties did not possess and could do what the parties could not, so that once the court had sanctioned an agreement not to make any further financial claim or demand against the Husband, the effect of the sanctioned agreement was to debar any further claims. That the parties cannot by their unvarnished agreement bar such further claims is clear from Hyman v. Hyman(1) a common law rule now clothed by statute both in England and Hong Kong, the English provision being originally section 1(2) of the Maintenance Agreements Act, 1957, but now section 34(1) of the Matrimonial Causes Act, 1973, and the Hong Kong provision section 14(1) of the Matrimonial Proceedings and Property Ordinance, Cap.192. 4. The nub of the Wife's argument on this part of the case is that the Court cannot by Order circumvent the statutory provision thereby converting the illegal and void into the valid. Mr. Jackson, for the Wife, submitted that what had led the learned judge at first instance into error was the case of L. v. L.(2) where it was held that the Court had no jurisdiction to entertain a fresh application for maintenance by a wife who had, in pursuance of an agreement sanctioned by the Court, received an agreed capital sum at the same time having her application for maintenance dismissed. It was held in that case that the court had no jurisdiction to entertain a fresh application for maintenance by a wife who had, in pursuance of an agreement sanctioned by the Court, received an agreed capital sum and had her application for maintenance dismissed and that section 1 of the Matrimonial Causes (Property and Maintenance) Act, 1958, which empowered the Court to make maintenance orders, not only, as formerly, "on" a decree but also "at any time thereafter", did no more than enlarge the time within which an existing jurisdiction in relation to maintenance awards might be exercised, by enabling the Court to award maintenance either "on" a decree or "at any time thereafter" and that there was no jurisdiction, once an application for maintenance has been dismissed, to entertain a fresh application or a plurality of applications. 5. It was Mr. Jackson's contention that the result in L. v. L.(2) was arrived at per incuriam. Counsel referred to the fact that when L. v. L. was decided there was already in existence powerful Australian authority holding that the correct view was the quantitative and not the temporal view; that is to say that the words "at any time thereafter" sanctioned a plurality of applications and not merely one application which could be made either "on" the decree or "at any time thereafter". Counsel referred further to the statutory prohibition upon the denial of further applications contained in section 34(1) of the Matrimonial Causes Act, 1973 to which I have already referred and cited also the case of Barnard v. Barnard(3) where a husband, having been ordered to pay to the wife maintenance at the rate of one shilling a year, moved for leave to appeal against that order. Ormrod, L.J., refusing leave to appeal, said that when applications for maintenance were governed by section 19(3) of the Matrimonial Causes Act, 1950, as that subsection was formerly worded, the court was empowered to order a husband to make payments for the wife's maintenance "on any decree for divorce or nullity of marriage," and it was not uncommon for nominal orders to be made, in order to keep alive the wife's rights. That subsection, however, had now to be read in the light of the amendment, made to it by section 1 of the Matrimonial Causes (Property and Maintenance) Act, 1958. For the words "on any decree for divorce or nullity of marriage" there had to be read the words "on pronouncing a decree nisi for divorce or nullity of marriage or at any time thereafter, whether before or after the decree has been made absolute." The practical effect of that amendement, Ormrod L.J. said, was that a nominal order for maintenance no longer served any useful purpose. The effect of Barnard v. Barnard, counsel urged, was that a party could apply to the court for financial provision even though his or her earlier such application had been dismissed. 6. A similar result to that in Barnard v. Barnard had been arrived at in the cases of Burton v. Burton(4) R. v. R.(No.2)(5) and M. v. M.(6), Whilst the last-mentioned three cases were subsequent to L. v. L. and did not follow that case, Barnard v. Barnard(3) had preceded L. v. L.(2) but neither Barnard v. Barnard, the Australian cases nor the statutory prohibition contained in section 1(2) of the Maintenance Agreements Act, 1957, had been quoted to the court in argument in L. v. L. which case, Mr. Jackson asserted, had been decided per incuriam. 7. In any event, the argument continued, Barnard v. Barnard was binding upon the Court of Appeal in England whereas L. v. L. was not, the reason being that Barnard v. Barnard was a decision of a court of three judges whereas L. v. L. was an interlocutory appeal decided by only two judges. The authority for this propesition was the case of Boys v. Chaplin(7) where the Court of Appeal held that the case of Machado v. Fontes(8) was not binding upon it being an interlocutory appeal heard by two Lords Justices only. In Boys v. Chaplin (supra) Lord Denning, M.R., said:
8. The first Australian case to which Mr. Jackson referred was that of Kitchin v. Kitchin(9) where it was held that an application for permanent maintenance under section 5(1) of the Victorian Marriage (Divorce) Act, 1933 may be made from time to time and notwithstanding the dismissal of a previous application or the discharge of a previous order. Section 5(1) empowered the Court to make certain financial orders against a husband "on or after making any decree for judicial separation or any decree nisi for dissolution of marriage." The case of Kitchin v. Kitchin was very fully argued the petitioner, the respondent and the Attorney General of Victoria all being represented. In the course of a wide-ranging judgment, O' Bryan J. said:
9. In arriving at this conclusion the learned judge, having referred to the fact that in England the jurisdiction was at that time limited to the making of an order "'on' any decree for divorce or nullity," went on:-
10. I make no apology for so lengthy a citation for I find its reasoning highly persuasive and indeed the whole judgment repays study in the light of the problem before us. 11. Similarly certain passages from the judgment of Sholl J. in the same case will bear repetition:-
and later:-
12. Having quoted Lord Atkin's dictum in Hyman v. Hyman(1) that "the wife's right to future maintenance is a matter of public concern, which she cannot barter away", Sholl J. continued:-
And finally from the same learned judge:-
13. As I have said, these judgments were not cited to the Court in L. v. L.(2) 14. Mr. Jackson further relied upon the Australian case of Whittle v. Whittle(10) in which, following Shaw v. Shaw(11) it was held that a deed providing for the payment of maintenance by the husband to the wife during their joint lives and containing an acknowledgment by the wife that her acceptance of the benefits specified in the deed debarred her from making any further claim for maintenance against her husband, was not within the classification of deeds which the Court might approve and did not debar the wife from making any further claim for maintenance. 15. Mr. French, for the Wife, sought to counter these authorities with his own sequence of cases decided since L. v. L.(2) He referred to Nash v. Nash(12) where at p.271, Scarman J. said:
thereby implying that where effective provision had been made for a wife by agreement, her consent to abandon future claims would be approved by the Court. 16. In M. v. M. (No.1)(6) Sir Jocelyn Simon P. had said:-
17. In Wilkins v. Wilkins(14), L. v. L. had been cited without disapproval. That case was also authority for the proposition that once a judge had approved and made a consent order it would be wrong in principle for the court to upset the order, in the absence of fraud, other than on appeal. In Smith v. Smith(15) Lord Denning M.R. had made an order to the like effect as that in L. v. L. thus concurring in the result achieved by L. v. L. The case of Wright v. Wright(16), properly understood, supported the decision in L. v. L. In Coleman v. Coleman(17) it had been held that the court had no power to make an order for a second lump sum payment to the wife. Again in Powys v. Powys(18), L. v. L. had been cited without disapproval. 18. It followed, in Mr. French's contention, that L. v. L.(2) was well rooted, well followed and well approved whilst the cases of Barnard v. Barnard(3), Burton v. Burton(4), R. v. R. (5), M. v. M.(6) and the Australian cases offered only a very slight counterpoise. 19. Mr. Jackson's response to these cases was to say that none of them dealt directly with the point at issue and to assert that since the case of L. v. L. there had never been an application similar to that made in that case. Wilkins v. Wilkirs(14) involved not an application to make a second order but to set aside an order and L. v. L. was there cited for a very limited purpose but had no relevance to the point at issue. Smith v. Smith(15) was entirely consistent with the formula in L. v. L. and the court was not there professing to have jurisdiction to dismiss claims: what the court was saying was that the wife could have the whole of the matrimonial home but could not make any further application. It is difficult to say that Mr. French was not right in saying that in so acting Lord Denning, M.R. was making an order in similar terms to that in L. v. L. and, in the light of the court's order it is difficult to understand Mr. Jackson's contention that if the husband had become rich the wife could have come back to the court with a further application for maintenance. Mr. Jackson was on firmer ground in protesting that the case of Wright v. Wright(16) was in his favour. In that case it was there held that no agreement or arrangement between the parties could deprive the court of jurisdiction to review the question of maintenance for a wife even where such agreement or arrange not had been sanctioned by the court under section 5(2) of the Matrimonial Causes Act 1965. The wife's application failed only because she was unable to show the unforeseen circumstances which were a prerequisite of success under the agreement with the husband. 20. As it seems to me, consideration of the case law discloses only disarray. L. v. L. itself was a departure from Barnard v. Barnard and the Australian case of Kitchin v. Kitchin(9). It has itself been departed from on at least three occasions whilst being apparently approbated in other subsequent cases. Yet the learned judge in the court below, though saying that were the matter resintegra he would be disposed to take the contrary view, felt himself enjoined upon the authority of Trimble v. Hill(19) to follow L. v. L.(2). But what was laid down in Trimble v. Hill was that where a colonial legislature had passed an Act (or Ordinance) in the same terms as an Imperial statute, and the latter has been authoritatively construed by a court of appeal in England, such construction should be adopted by the courts of the Colony. I trust that I have said sufficient to emphasise that L. v. L. can by no means be regarded as an authoritative decision. In my view the principle laid down in Trimble v. Hill could have no application to such a disputed cases as L. v. L. In this connection the learned judge said that where the interpretation of a statute depended, as it does here, upon the context of that statute in a pattern of relevant legislation and practice which is similar in Hong Kong and in England the decisions of the English courts are of special value, whilst the interpretation of an identical statute in another jurisdiction may be positively misleading. With respect, that may be entirely true where the decisions of the English courts can fairly be regarded as authoritative but where they cannot, it may be them and not the decisions from another jurisdiction which may be misleading. 21. It is significant that in none of the cases cited as approbating the decision in L. v. L. is there any reference to the statutory avoidance of any agreement which includes a provision purporting to restrict any right to apply to a court for an order containing financial arrangements. Nor is there any explanation of the Court's implied, blessing of that which the legislature has declared to be void. Mr. French urges that experienced judges of the Family Division would be unlikely to have been either unaware of or to have overlooked the statutory prohibition. Whilst that is hard to gainsay, it remains the fact that the learned judges gave the provision no acknowledgment as they by-passed it and offered no indication as to why they considered it of no importance. 22. Returning to the case of L. v. L.(2) which appears to have been the fount of the disarray, I conclude that had the statutory prohibition been firmly before their Lordships in that case and had the case of Barnard v. Barnard(3) and the exhaustive reasoning in Kitchin v. Kitchin(9) been examined before them, jurisdiction would not have been denied. In my respectful view the case of L. v. L. -which in any event does not bind this Court (Robins v. National Trust Company Limited(20) and Chan Wai-Keung v. Regina(21)) - was wrongly decided and on the authority of Boys v. Chaplin(7), the case which should bind the Court of Appeal in England and which this Court should follow is that of Barnard v. Barnard, the product of a court of three Lords Justices. In other words the Wife is free to come back to the Court upon a further financial application. 23. It may be useful to relate that conclusion to our own legislation. Section 14 of the Matrimonial Proceedings and Property Ordinance (Cap.192) reads:-
24. Having regard to sub-section 1(a) and to the definitions of "maintenance agreement" and "financial arrangement" it is apparent that the Wife's undertaking to make no further financial claim or demand against the Husband, contained in the Deed of Arrangement sanctioned by Briggs, J. in 1970, was void and that the learned judge had no power to sanction that undertaking. To hold otherwise would be to set the Court in defiance of the Legislature for had the Legislature meant void "unless sanctioned by the Court" nothing would have been simpler than to have said so. It is true that the undertaking was not that the Wife would not apply to the Court but that she would make no claim or demand against the Husband. But such an undertaking includes any claim or demand made through the medium of the Court so that effectively, the Wife was agreeing not to come back to the Court. 25. As to this the learned judge said that whereas what was agreed in Hyman v. Hyman(1) was that the wife would not go to the Court, what was agreed in this case was that the parties would go to the Court and they did go and they obtained an order of dismissal. That is true but they agreed to go to the court once and once only - and there lies the rub. If the principle of Barnard v. Barnard(3) be accepted, as I think it must, here was a maintenance agreement "purporting to restrict any [second or subsequent] right to apply to a court for an order containing financial provisions" and it was void. 26. I find difficulty in accepting the proposition advanced by McMullin, Ag.J.A. whose draft judgment I have had the advantage of reading, to the effect that paragraph (7) of R.6 of the Matrimonial Causes Rules confers atatutory power upon the Court to sanction an agreement not to come back to the Court. As it seems to me any such interpretation of the rules would conflict with the plain provisions of section 14(1)(a) of the Matrimonial Proceedings and Property Ordinance. Yet section 28(b) of the Interpretation and General Clauses Ordinance provides that no subsidiary legislation shall be inconsistent with the provisions of any ordinance. Nor can I find assistance as does my learned brother from section 15(6) of the Matrimonial Proceedings and Property Ordinance which he construes as providing that section 14 of that Ordinance is not to inhibit the Court in dealing with financial arrangements brought to it under the Ordinance or any other enactment. The subsection reads:
27. The power which is declared to be uninhibited is the power to make an order containing financial arrangements. not an order to sanction an agreement not to come back to the Court. It is significant also that the other matter which the subsection declares to remain uninhibited is the right of either party to apply for an order containing financial arrangements. 28. Having reached the conclusion that the Wife is entitled to come back to the Court, what type of application is now open to her and in particular is she free to make applications of a type the possibility of which did not exist at the date of her decree? An example of this type of application is a transfer of property order under section 6(a) of the Matrimonial Proceedings and Property Ordinance, Cap.192, a form of relief which was introduced in 1972 after the marriage of the parties had been dissolved. There was some discussion in the court below as to whether such relief conferred a new jurisdiction on the Court or amounted only to new machinery. As it seems to me a new jurisdiction has been conferred in the sense that it is now open to the Court to make an award of a type previously not capable of being made, a circumstance which goes beyond mere provision of new machinery and support for this view is to be derived from the case of Wachtel v. Wachtel(22) where Lord Denning, M.R. describes similar provisions introduced in England as "designed to accord to the courts the widest possible powers in readjusting the financial position of the parties and [also] to afford the courts the necessary machinery to that end." Again in Trippas v. Trippas(23), having rejected the assertion that in assessing the quantum of the lump sum payment it was proper to proceed on the same principles as would apply in assessing the quantum of annual payments under the law as it stood before the Acts of 1963 and 1965 were passed in England, Lord Denning M.R. said:
whilst Mr. Justice Scarman referred to sections 2, 4 and 5 of the Matrimonial Proceedings and Property Act, 1970 as representing a reform of the law. 29. But is this new jurisdiction retrospective? It seems to me that it is, on the authority of Williams v. Williams(24), Powys v. Powys(18) and Chaterjee v. Chaterjee(25). On the basis of those authorities I conclude that even if, contrary to the view to which I have come, the case of L. v. L.(2) is one which should be followed in this jurisdiction, it is still open to the Wife to apply for financial provision of a nature not available to her at the date of the dissolution of the marriage. 30. In this connection the learned judge in the court below said:
but despite that, went on to say subsequently in what Mr. Jackson described as a self-contradictory conclusion of principle:
31. For the reasons. I have given I do not consider that the order is a bar to applications for relief of a type which did not exist at the date of the dissolution of the marriage. I am fortified in this conclusion by the consideration that the converse would result in a gross inequity in that whilst the Wife would be barred from coming to the Court for any type of new relief because of the judge's order of 1970, the Husband should he fall upon hard times, would be perfectly free to do so. 32. If my conclusion that L. v. L.(2) should not be followed in this jurisdiction be correct, and if I am right in holding, on the basis of Chaterjee v. Chaterjee(25) and related cases, that it is open to the Wife now to come to the Court for relief of a nature not available to her at the time of the divorce, the issue as to whether there is a subsisting maintenance agreement capable of variation, is academic. For the sake of completeness however and in deference to the arguments advanced upon the point and lest my earlier conclusions should not find favour elsewhere, I will state my view of that and other matters argued before us. 33. Mr. French contends that there is no subsisting maintenance agreement, within the meaning of section 15(1) of the Matrimonial Proceedings and Property Ordinance (Cap.192), to be varied. Having regard to the very wide definition in section 14(2) of "maintenance agreement" I do not think that he is right. As to this the learned judge said "Whether the two Trust Deeds are properly to be regarded as 'an agreement' or whether they ought to be treated as entirely separate and distinct, they are clearly 'subsisting'". With respect, so also is the Deed of Arrangement in that it contains covenants by the Wife of a continuing nature as, for example, to bring the child up in the Roman Catholic faith. In my view, the learned judge was wrong to accept Mr. French's argument that the Deed of Arrangement was no longer subsisting. That Deed, covenanting as it does for financial arrangements for the Wife and containing covenants of a continuing nature by the Wife, is itself a subsisting maintenance agreement capable of variation and it is untainted by the subscription of any third party - a feature of the Deed in Young v. Yong(26) which resulted in its being held not to constitute a maintenance agreement. 34. A further pointer to the continued existence of a subsisting maintenance agreement is to be found in the fact that the consent order made by Briggs, J. on 23rd May, 1970 contained liberty to either party to apply in respect of (inter alia) "any matter relating to the implementation of the said Deed of Arrangement or of the said Trust Deeds". All the Deeds are very much alive and it would be perfectly possible, for example, for the Husband to apply to the Court in respect of the Wife's alleged failure to bring the child up in the Roman Catholic faith. Other possible applications relating to either Trust Deed (A) or Trust Deed (B) can easily be envisaged. 35. In connection with a possible application to vary the agreement under section 15 of the Matrimonial Proceedings and Property Ordinance, certain technical defects were explored in the court below. It was said that r.100 of the Matrimonial Causes Rules requires that a claim under section 15 should be made by an originating summons and that, since the present claim was made by a judge's summons it was defective. The learned judge regarded this defect as readily curable having regard to r.3 of the Matrimonial Causes Rules, O.2 r.1 of the Rules of the Supreme Court and s.9(g) of the Supreme Court Ordinance. Again the application was not in the form prescribed, that is to say that it was not on Form 16 and the application had not stated the variation which the Wife sought to have made in the Deeds but had merely said that she asked the Court to make such variations as it thought fit. These again were matters which the learned judge seemed to regard as of little consequence but he was impressed by the argument that any application for variation should have been started in the District Court. 36. As to this Mr. Jackson, in a somewhat convoluted argument which had reference to sections 12 and 33 of the Supreme Court Ordinance and to sections 20(3) and 45 of the Courts Act 1971, sought to demonstrate that the High Court had jurisdiction. To my mind he succeeded but, if ever the application should be resumed, I would leave it to the judge hearing the application to decide whether or not he would proceed or whether he would require the defects to which I have earlier referred, to be cured by an application in more orthodox form. In reaching any such decision the judge would, no doubt, be alive to the probability that any application commenced in the District Court would almost certainly be the subject of eventual transfer to the High Court. 37. A further point taken by Mr. French in the court below was as to the residence of the Wife. It is a prerequisite to an application for variation under section 15 that each of the parties be, for the time being, either resident or domiciled in Hong Kong. In this connection there is no difficulty in regard to the Husband but the Wife is not normally either resident or domiciled in Hong Kong - indeed it was a term of the agreement between them and that she should reside in either the United Kingdom or the Federal Republic of Germany. When the summons was amended on 21/1/76 to include the application under section 15, she prefaced her affidavit in support by describing herself as "for the time being resident in Hong Kong and now residing at the Hilton Hotel." Here the learned judge appears to have applied the limitation "for the time being" to residence with the same severity as to domicile saying "there is inevitably some degree of permanence involved in domicile and when residence and domicile are being considered as alternative qualifications it is not unreasonable to regard the same element of permanence as involved in both". For this reason he considered that the objection to jurisdiction should have been upheld on the ground that the length of the Wife's intended stay in the Colony was not known. With respect I am unable to agree. Residence is a far more ephemeral state than is domicile and in the particular circumstances of this case the Wife could not be in any sense ordinarily resident in Hong Kong for she had contracted to live in the United Kingdom or in the Federal Republic of Germany. Any residence was necessarily of a temporary nature for the purpose of these proceedings and such residence was, in my view, adequate to satisfy the requirement of the section. 38. Mr. French took the further point that the Wife's affidavit was deficient as to residence in that it did not depose to her residence as required by r.100 of the Matrimonial Causes Rules and Form 16 thereto. Counsel's point as I understand it was that even if the irregularity of the absence of any Form 16 was waived or cured, the preface as to residence which I have recited above, immediately preceded the words "make oath and say as follows" so that the Wife could not be said to have sworn as to her residence. Whilst fully appreciating the point Mr. French makes, I consider the juxtaposition of words of which he complains to be so insignificant as to rob his point of any merit. 39. I turn now to the allegation of mistake. I agree with the learned judge that the order dismissing the prayers for financial provision was an interlocutory order; that on the basis of Guerrara v. Guerrara(26) and I agree also with the learned judge's belated recognition of the fact that the Wife had grounds for attacking the consent order, upon her own account, on the basis of mistake - and that for the reasons acknowledged by the judge. Upon this point there is a cross-appeal. 40. The learned judge however did not consider that the consent order could be attacked on the same basis in relation to the provision made for the child, and here I would, with respect, differ from him. On the basis of the Wife's uncontested affidavit she was given to understand by her solicitors that the child's maintenance would be provided for "down to the last aspirin". It emerges however from her affidavit that nothing has been paid to or for the benefit of the child for more than six years and, from Trust Deed (A), that there is no obligation upon the Trustees to pay any income to or for the benefit of the child until he becomes 25 years of age, even assuming that in the meantime the income has not been paid over to the Husband settlor. It is only necessary to pose the rhetorical question: would the Wife have signed the Deed of Arrangement had she been aware that this was the theoretical position, a position which has been translated into fact up to the present time, to be aware that here was mistake of the most vivid and elementary type. It appears to be agreed on behalf of the Wife that the sum of half a million dollars set aside for the child is in itself an adequate sum but what is attacked is the absolute discretion of the Trustees to withhold the income thereof and in my view the consent order can be assailed upon that ground, the learned judge being in error when he said:
It is entirely true that there are ample powers vested in the Trustees to ensure the proper maintenance of the child but it is equally true that there is no obligation whatever upon them so to act and in the light of the absolute discretion given to the Trustees the suggestion that there are ample powers in the Court to ensure the proper maintenance of the child is fallacious. Howard v. Howard(27). In my view the Wife's affidavit amply demonstrates that her subscription to the Deed of Arrangement was the product of mistake as to the true interpretation and possible effect of Trust Deed (A). 41. Mr. French defends the wide discretionary provisions of that Deed on the ground that there may be, in the background, some shadowy rich uncle, aunt, or godparent so benevolently inclined towards the child - to the exclusion or partial exclusion of other nephews, nieces or godchildren - as to render maintenance or advancement from the trust fund superfluous. Such a person there may be, though there is not the slightest evidence to that effect: but we are here concerned not with a testator who cannot foresee the date of his demise or the circumstances then or later obtaining, but with a father, providing, or purporting to provide, for the child of his marriage after dissolution of that state Such a man is living in the present, aware of day-to-day conditions and it is for him realistically to provide for the child rather than to leave that child at the whim of trustees whose discretion is so wide that they are under no obligation to provide a penny towards maintenance until the child reaches the age 25. If the proof of the pudding be in the eating, the child's financial history at the hands of the Trustees provides that proof. Apart from a few desultory reimbursements to the Wife of expenses incurred on behalf of the child in the early days of the divorce, the child has received not a penny from the Trustees for years. This is far removed from the assurance of the Wife's solicitor to her that the child's expenses would be met from the trust fund "down to the last aspirin". Years ago an offer, which even the Husband's counsel describes as insufficient, was made in the sum of HK$250 p.m. that sum to be over and above the cost of educational and medical expenses. The Wife rejected this offer, a reaction which Mr. French describes as "childish". Others might regard it as being not without an element of dignity and a rightful repudiation of an offer not within the spirit, if strictly within the letter of the Trust Deed. 42. To my mind that history - all within the framework of the Trust Deed - demonstrates the inadequacy of the Deed as a provision for the child. But it is not with inadequacy per se that I am here concerned but with the mistake of the Wife, induced by her professional advisers, as to the true content and effect of the Deed. 43. There is however one very objectionable inherent feature of Trust Deed (A) which, to my mind, should not have received the blessing of the Court and that is contained in Clause 9 thereof. In construing that clauso it must be borne in mind that nowhere in the Deed is there any actual obligation placed upon the Trustees to pay income for the maintenance, advancement or benefit of the child that matter being left to the discretion of the Trustees. Clause 9 reads in part:
44. Whether the potential effect of this clause was appreciated or whether the clause was inserted as a result of a too slavish adherence to a precedent, I do not know. Its effect however is to give the Trustees an absolute discretion to pay income from the trust fund to (inter alia) the Husband. But the Husband is the settlor. It is thus possible for the Trustees to stultify the trust as to income by permitting the very settlor to use the trust fund as his private investment. Indeed, the final sentence of the clause refers also to the application of capital in this manner and whilst it may be argued that that reference over-reaches the discretion given in the early part of the clause, a possible interpretation is that the trust could be stultified as to both income and capital. 45. No doubt it can be argued that the Bank Trustee would never agree to any proposal by the Husband, the other trustee, so to apply either income or capital to him and that in the event of the Bank Trustee's refusal so to act, its decision in the matter would be binding under Clause 8 of the Deed. The fact remains, however that the Bank Trustee is given an absolute discretion in the matter and if it did so agree to pay either income or capital to the Husband, neither Trustee being required to see to the application thereof, the child would be defenceless in the light of an absolute discretion. (Howard v. Howard(27) and Dundee General Hospital v. Walker(28)). 46. If it be argued that Clause 4(d) imposes upon the Trustees the obligation to accumulate the income of the trust fund and to hold such accumulation as an accretion to capital, subsequently paying it to the child under Clause 4(e) upon his obtaining the age of 25 years, it can be answered that in the light of Clause 9 there is nothing to prevent the Trustees saying to the child when that time comes: "There is no income; we have paid it to your father in our absolute discretion and we are under no obligation to see to the application thereof." 47. In my view Clause 9 is a highly objectionable clause which should never have been approved by the Court and the Wife is now entitled to attack it. 48. Quite apart from any question of Clause 9 or of mistake, however, the Wife is entitled to ask the Court to review the arrangements made on behalf of the child since, under section 5(5) of the Matrimonial Proceedings and Property Ordinance, the power to make an order involving financial provision for a child of a family may be exercised "from time". There is no ambiguity about that phrase and any agreement purporting to restrict the child to one application and one only, falls foul of section 14(1) and is void. As to this, the learned judge's comments as to convenience do not persuade me otherwise. 49. As to whether or not the Wife is entitled to seek more than one lump sum, I am not persuaded that the decision in Coleman v. Coleman(17) was wrong but if it be correct that the Wife can come to the Court for an order under section 6 of the Matrimonial Proceedings and Property Ordinance (Cap.192) that question may be academic since "property" includes money (Interpretation and General Clauses Ordinance, (Cap.1) s.3) 50. There remains the Wife's allegation of non-disclosure and actual misrepresentation by the Husband of his financial position just prior to the dissolution of the marriage. She deposes that she was advised by her solicitor and counsel in about August, 1969 that she had reasonable grounds for expecting a settlement of some HK$1.5 million for herself and $2,000,000 for the child but that during November and December, 1969 her solicitors communicated to her an offer of $750,000 for herself and $500,000 to or for the benefit of the child together with the provision of a furnished house for both, an offer which she rejected. During the same months she was visited by the Husband on several occasions when he represented that he was in circumstances of acute financial difficulty and embarrassment and referred to certain contingent liabilities regarding a venture in Alaska which had collapsed. At this point the Wife alleges the Husband stated that if she did not accept the offer which she had already rejected she ran the risk of getting nothing. 51. In about the middle of December, 1969 the offer of $750,000 for the Wife was increased to one of $850,000, the offer in respect of the child and the provision of a furnished home remaining unaltered. It is the Wife's evidence that having regard to what the Husband had represented to her regarding his financial position and to her solicitor's statement that the Husband was not as wealthy as had been supposed, she accepted the terms then proposed. It is her complaint that her solicitors made no independent enquiries into the Husband's financial resources or means. She exhibits to her affidavit the result of enquiries subsequently made by a mercantile agent in Sydney, Australia as to the directorships and shareholdings of the Husband in Australia and, whilst the particulars given in the agent's report do not establish the precise financial position of the Husband, they may be said to suggest a degree of wealth which may not be commensurate with his protestations in 1969. 52. There being no affidavit by the Husband in clarification of these holdings and there being a firm allegation by the Wife that she was misled by the Husband as to his financial position and would not have signed the deeds had the true position been known to her, it seems to me that it is now open to her to come to the Court on the basis of alleged misrepresentation by the Husband as to his finances. 53. The Wife further complains that she was misled by her advisers into believing that her tax liability in England would amount to some 25%-30% of her income whereas in fact it proved to be approximately 50% and that she had been similarly misled into the belief that it would be possible to find a house of the type stipulated in the Trust Deed for the equivalent of HK$400,000 which proved not to be the case. 54. I would allow the appeal, dismiss the cross-appeal and remit the amended summons to the judge to be dealt with upon its merits. To that there is one qualification. The first prayer of the amended summons asked for an order setting aside or varying the consent order of the 23rd May, 1970. The 10th prayer asked for an order varying or revoking the financial arrangements contained in the Deed of Arrangement and the two Trust Deeds. In my view too much time has elapsed and too much water has passed under the bridge for it to be appropriate to set aside the order of the 23rd May, 1970 or to revoke the financial arrangements contained in the Deed of Arrangement and the two Trust Deeds. Accordingly I would remit the matter as though the words "setting aside" in the first prayer and the word "revoking" in the 10th prayer were deleted. The appellant is entitled to her costs here and in the court below. There will be a certificate for two counsel. Liberty to either side to apply. Representation: Joseph Jackson, Q.C., Nicholas Wall and B. Downey (Hampton, Winter and Glynn) for appellant. Christopher French, Q.C., Charles Ching, Q.C. and D. Chang (A. Tsang & Co.) for respondent. (1) (1929) A.C. 601 (2) (1962) P.101. (3) (1961) 105 Sol,J, 441 (4) (1964) 108 Sol.J. 584 (5) (1967) So1.J. 926 (6) (1967) P.313 at 317 (7) (1968) 2 Q.B. 1 (8) (1897) 2 Q.B. 231. (9) (1952) V.L.R. 143 (10) (1965) 66 N.S.W. 141 (11) 83 W.N. (Pt.2) (N.S.W.) 1 (12) (1965) P.266 (13) (1940) P.124 (14) (1969) 2 All E.R. 463 (15) (1970) 1 All E.R. 244 (16) (1970) 1 W.L.R. 1219 (17) (1973) Fam.10 (18) (1971) p.340 (19) (1879) 5 App. Cas.342 (20) (1927) A.C.515 (21) (1965) H.K.L.R. 815 (22) (1973) FAM.72 (23) (1973) FAM.134 (24) (1971) FAM.271 (25) (1976) 2 W.L.R. 397 (26) 117 So1. J.204 (27) (1945) P.1 (28) (1952) 1 All E.R. 896
----------------- Coram: Pickering, J.A., McMullin and Leonard, JJ. Date of Judgment: 17 December 1976 ----------------- JUDGMENT ----------------- McMullin, J.: The wife in this case succeeded in her petition for divorce. It was the second petition presented by her in the case. The first of these petitions was presented in November 1969, upon several grounds which included the attribution of disgraceful conduct to her husband. Between that date and the date of presentation of the second petition in January of 1970 the parties, with the assistance of their legal advisers, had come to certain arrangements. Accordingly application was made to obtain the court's approval of these arrangements under the then existing rule which has since been replaced by Rule 6 of the Matrimonial Causes Rules of 1972. This application was heard, together with an ex parte application for leave to file a further petition, by Briggs, J. (as he then was) on the 16th of January 1970. Upon that day leave was given to file a further petition and, in the same ruling, the learned judge granted leave to implement the proposed agreement which comprised a deed of arrangement securing a lump sum payment of $850,000 to the wife in final settlement of all the wife's financial claims upon the husband and which in addition proposed the establishment of two trusts, one for the benefit of the petitioner and the child of the marriage and one for the benefit of the child of the marriage. Pursuant to that order of the 16th of January a second petition was filed by the wife on the sole ground of the husband's adultery. This was set down for hearing in April as an undefended cause for dissolution of marriage and prior to that, on the 25th of March, the first petition was dismissed by Briggs, J. A decree nisi was granted on the 23rd of May 1970 upon oral evidence of the wife in support of her petition, her husband not defending. Immediately thereafter Briggs, J. adjourned the matter into chambers where after hearing counsel in support he made a consent order which included a number of consequential provisions relating to the custody of the child and which also included the provisions which are the bedrock of the dispute in the present appeal. These are in the following terms:
2. Subsequently the wife became dissatisfied with the terms of the deed of arrangement and the trust deeds which constituted the whole of the financial provision for herself and the child of the marriage. On the 1st August 1975 she applied to the court by summons for a number of different kinds of relief under sections 4, 5 and 6 of the Matrimonial Proceedings and Property Ordinance Cap. 192. On the 23rd of January 1976 the matter was heard before Huggins, J. in chambers. The parties were represented as they have been upon the hearing of this appeal, Mr. Jackson appearing for the wife and Mr. French for the husband. A number of points were taken on behalf of the husband by way of objection to the proceedings all of which, somewhat further elaborated and amplified, have been put before us on the hearing of this appeal. In an oral ruling given immediately after the hearing Huggins, J. dismissed the application for ancillary and other relief basing himself principally upon the ground that he was without jurisdiction to hear such an application following upon the dismissal by consent of the claim for ancillary relief at the time of granting the decree. He found that the application was incompetent under the law as it stands in Hong Kong. Subsequently on reducing his reasons to writing, in an extensive ruling dated 14th February 1976, he intimated that he believed he had been in error as to one aspect of his oral ruling and that, as later advised, he would have been prepared to hold that he had the jurisdiction to deal with the application of the wife upon one of the grounds advanced in her regard viz.: that her consent to the financial arrangements made for herself and the child of the marriage were due to mistake upon her part and misrepresentation upon that of her husband. The learned judge took the view that the matter before him was of the nature of an interlocutory application in respect of which there was inherent power to intervene for the purpose of correcting any order made as a result of mistake or misrepresentation. The husband, the respondent in the present appeal, while seeking to uphold the order of Huggins, J. of the 23rd of January 1976 takes issue by way of cross-appeal with this latter finding of the judge and he asks us to say that the principal reason given by the judge in finding himself without jurisdiction in respect of both the mother and the child of the marriage is valid and ought to be sustained. That reason is to be found in the English decision in the case of L. v. L.sup>(1), a decision of two judges of the Court of Appeal in which it was held that the judge in the court below had no jurisdiction to entertain a fresh claim made by a wife for maintenance following upon the dismissal of her application for maintenance, pursuant to an agreement between herself and her husband that her application should be dismissed upon certain terms including the payment to her of a lump sum of £600. 3. In his helpful summary of the points in issue, following the sequence of them in his opponent's argument, Mr. French enumerated some eight propositions arising therefrom. I think, however, that those propositions may, for convenience and clarity, be reduced to five. These are as follows: (1) The consent order dismissing the claim for maintenance does not in law bar the wife from returning to the court for further financial provision. Three separate matters are subsumed under this contention; firstly, it is said that the decision in L. v. L.(1) was (a) per incuriam and (b) wrong in law; secondly, if that case was rightly decided it is not in any event binding upon the court in this territory and ought not to be followed as a matter of principle; thirdly, even if rightly decided, and if applicable and applied to the case of the wife it does not apply to the case of the child. Associated with this first proposition, although it was argued quite separately and was in fact the last of Mr. French's eight propositions, is the contention that Coleman v. Coleman(2) was also wrongly decided. In that case Sir George Baker P. held that the court had no jurisdiction to entertain a wife's application for a further lump sum under section 2(1)(c) of the Matrimonial Proceedings and Property Act 1970 subsequent to an order whereby she had been awarded a lump sum after the granting of the decree of divorce. 4. Secondly, it was said that the order of the judge may be impugned on the ground that the materials put before him were insufficient in themselves, and insufficiently explored in the time available, to warrant his making the order of dismissal contingent upon the implementing of an agreement which, it was said, was in its nature wholly unjust to the wife and child. Thirdly, the order could be impugned on the basis of mistake or misrepresentation vitiating the agreement itself by reason of inadequate or incompetent professional advice and misrepresentation on the part of the husband. Fourthly, that, in any event, section 6 of the Matrimonial Proceedings and Property Ordinance provided a remedy by way of transfer of property which was not available at the time of the consent order and that the wife was entitled now to avail herself of those provisions. The authority relied upon in respect of that contention was Chaterjee v. Chaterjee(3) in which the Court of Appeal in England, considering legislation in terms similar to section 6 of the Ordinance, held that its provisions were retrospective and that they enabled a wife who, in 1959 had obtained an order for maintenance in her favour following upon a decree of divorce, to apply to the court in 1974 for a transfer of property order although such order could not have been made at the time when she had obtained the order for maintenance. Fifthly, and alternatively to all the foregoing, the wife in this case was entitled to apply to the court under section 15 of the Matrimonial Proceedings and Property Ordinance which gives power to the court to vary a subsisting maintenance agreement. 5. In considering the first of these propositions it is helpful, for the avoidance of confusion, to bear in mind that the position of the wife is significantly different from that of the child under the existing legislation. The distinction is of importance in relation to the bearing, if any, which the decision in L. v. L.(1) and Coleman v. Coleman(2) may have upon the case of the child. Section 5 dealing with a financial provision for the child concludes with a provision which is absent from section 4 which deals with financial provision for the parties to the marriage. It is in the following terms:
The power to make orders from "time to time" in respect of children was to be found also in section 26 of the Matrimonial Causes Act 1950, and in L. v. L.(1) Willmer, L.J. contrasts those words with the words which he was concerned to construe and which are for practical purposes identical with the words in our sections 4(1) and 5(1) viz.: before or on granting the decree of divorce ... or at any time thereafter". He held that while an order made under the former provision was a final or "once-for-all" order but he implied that the same was not the case where an order had been made or dismissed under the latter provision. 6. There is no doubt that the English case law on this matter, which has been canvassed exhaustively before us, presents a somewhat puzzling picture and I have considerable sympathy with Pickering,. J.A. as to what he regards as a condition of total disarray. In the end, however, and notwithstanding some obvious discordance, I am not persuaded either that L. v. L. was decided per incuriam or that it is wrong in principle. I think it is conceded that right or wrong, that case says two very plain and very important things. These conclusions may both be found in the judgment of Willmer, L.J. with which the other judge, Davies, L.J. agreed. First, he said, once an application for maintenance has been dismissed by the court, jurisdiction does not exist to entertain a fresh application. The change in the formula from: "on any decree" in the prior legislation to "on pronouncing such a decree .... or at any time thereafter" did not admit of the presentation of multiple applications but merely extended the time for making a single application. If that proposition is correct, and is applicable to the present case, clearly it would apply only to the case of the wife and not to that of the child. But, secondly, the learned judge went on to deal with the question which arose in that case, as it does in the present, the question whether the agreement made between husband and wife in consideration of which she had consented to have her application for maintenance dismissed had any force in law. Since the passage in which he deals with this question conveniently summarises the position argued for here both in relation to the wife and to the child I will quote that passage in extenso. What the learned judge said appears on page 118 and is as follows:
In support of his contention that this decision was, first of all, per incuriam Mr. Jackson referred us to the decision in Barnard v. Barnard a decision of the Court of Appeal in May 1961 a very brief note of which appears at page 441 of Vo1.105 of So1. Journal. In that case, upon the granting of a decree nisi, the court made what amounted to a nominal order against the husband by way of maintenance. He was to pay 1s. per year. He appealed against that order and Ormrod, L.J. pointed out that the introduction of the words "on pronouncing a decree nisi for divorce or nullity of marriage or at any time thereafter" had the effect that a nominal order for maintenance no longer served any useful purpose. Notwithstanding that finding, he nevertheless dismissed the motion. This decision was not brought to the attention of the court in L. v. L.(1) which was decided only a few months later. For my part I doubt if it would have been much assistance unless the court in L. v. L.(1) could have been supplied with a report which carried the matter a little further. All that this brief note seems to say is that a wife's right to claim maintenance no longer requires a nominal order to keep it alive in view of the altered wording of the section. No one is now concerned to deny that. The note certainly does not record the learned judge as saying that, if dismissed, the wife may apply again and, as I have observed, although the order is said to serve no useful purpose it was not, in the event, discharged. On the other hand in Burton v. Burton and Gibbons(4) and in R. v. R.(5), judges in the Divisional Court, subsequent to the decision in L. v. L.,(1) are recorded as giving opinions which favour the appellant's view here. In the former case Ormrod, L.J. refused to make a consent order dismissing a wife's application for maintenance saying that even if he dismissed it the dismissal would not be effective. In the latter case, Karminski, J. was in favour of the wife's agreement to have a claim for maintenance dismissed and he made the consent order sought but added that there was nothing in the wife's conduct which should preclude her from applying for maintenance thereafter. Once again we have no note either of the argument or of the reasoning which led up to these conclusions. Indeed, it might be said, thus far, that insofar as the question of decision per incuriam was involved in any of these cases the absence of any mention of the decision in L. v. L.(1) in the two last quoted, assuming them to have been directly contrary to that decision, is rather more remarkable than the absence of any mention of Barnard v. Barnard(6) by the court in L. v. L.(1) itself. When one sets the quality of the reports in all these three cases against that in L. v. L.(1) Mr. Jackson's suggestion that the judgment in the latter case suffers an additional dilution in authority for not having been, in the proper sense, a reserved judgment seems difficult to sustain. To judge by the brevity of the notes of the decisions in the Solicitors Journal cases it seems very clear that the judges involved in those cases did not take time for consideration. By contrast, in L. v. L.(1) the appellate court did adjourn for the purposes of decision for two days (over a weekend) and reasoned judgments were delivered setting out in some detail the arguments on the cases cited and the principles considered and adopted. 7. Mr. Jackson however also relies upon the decision in M. v. M.(7) a decision of Sir Jocelyn Simon P. which was not only carefully prepared but was one of a number of cases specially solected and dealt with together for the purpose of giving instruction to practitioners as to the principles and practice prevailing in the divorce jurisdiction. Having referred to section 4 of the Matrimonial Causes Act of 1963, which provided machinery for the bringing of arrangements and agreements, whether collusive or not, relating to matters in contention in matrimonial disputes before the court for its consideration, he went on to advise as to his practice in dealing with applications under section 5(2) of that Act, under which the court derives its power to take such agreements and arrangements into consideration and to give directions thereon (a provision similar in terms to section 18(B) paragraph (c) of the Ordinance). In relation to that he said as follows:
Both sides in the present case have claimed support from this passage. But I must observe that in order to avoid the clear implication of the opening few sentences i.e. that cases may arise justifying the dismissal of a wife's claim for all time - Mr. Jackson was constrained to supply a gloss or key to the true meaning of the learned President's words. He says in effect that the passage contains a kind of code to indicate to any registrar or to any judge who may later be dealing with the case what his views were of the merits of the application before him. No doubt that is so. The proceedings before the judge upon such applications are presumably of a preliminary character and precede the granting of the actual decree. I find the phrase "when I do dismiss a wife's claim for maintenance" a little puzzling in that context, but I assume it refers back to the previous sentence and that what the learned President is saying is that when he sanctions an agreement containing a term providing for dismissal of the wife's claim for all time this is as an indication to the judge or registrar subsequently dealing with the case that it was one which he, on the material before him, considered proper. Mr. Jackson points to what is said by the learned President in reference to M. v. M.(No.2)(7) at the top of page 324 in the same report and he says that that is an illustration of the President's code in action. What the President there said was:
To my mind however this explanation does nothing to dispose of Mr. French's contention that the importance of that decision lies, for present purposes, principally in the fact that the President of the Probate, Divorce and Admiralty Division of the High Court was apparently of the view that cases would occur when it was proper for a wife to divest herself finally of all future rights to further orders of maintenance through the invocation of the courts. 8. The shortcomings of the decision in L. v. L.(1) were Said also to include the fact that certain decisions of the Australian courts had not been drawn to the attention of Willmer and Davies L.JJ. and that moreover, their attention had not been drawn to the provisions of section 1 of the Maintenance Agreements Act of 1957 (corresponding in terms closely with section 14 of the Matrimonial Proceedings and Property Ordinance) which rendered void any provision in an agreement purporting to restrict the right to apply to a court for an order containing financial arrangements. I shall return to the Australian cases later for I think they are best considered in relation to Mr. Jackson's submissions on the value of persuasive precedents even assuming that L. v. L.(1) was rightly decided. As to the statute, however I think, with Mr. French, that it is very unlikely that that very experienced bench could have overlooked the fact that there were such provisions, more especially as the judgment of the court below made specific reference to the Act of 1957, admittedly in passing and without discussion of its terms either by counsel or the judge at first instance. It is far more likely, to my mind, that both of the learned judges of appeal were well aware of the nature of these provisions but that they did not regard them as undercutting the principle which they were disposed to express. 9. I turn now to the other aspect of the picture: the subsequent history of L. v. L.(1) in the English courts. Among the cases to which we have been referred there are firstly those cases in which L. v. L.(1) has been specifically mentioned. In Wilkins v. Wilkins(8) a husband had succeeded in obtaining from the registrar an order varying the terms of a prior consent order for payment of maintenance which the husband professed to have been too onerous. On appeal from that decision, Baker, J. set aside the order of the registrar and allowed the appeal upon a ground which is of considerable importance in relation to a later point in the present case. What he said, in effect, was that the husband's objection, based as it was upon the ground of mistake and misunderstanding on his part of the effect of the original order, was one that could only be taken upon appeal from that order. Mr. Jackson points out, correctly that Wilkins v. Wilkins(8) is not a direct authority for the proposition that the dismissal by consent of an application for maintenance bars any further claim in that behalf. The fact remains that L. v. L.(1) is among the authorities enlisted by Baker, J. to support his view of the effect of the consent order. It seems unlikely that he would have done so if, by 1969, it was already widely accepted on the Bench and at the Bar that L. v. L.(1) was dubious law. It is noteworthy that in Wilkins v. Wilkins(8) the learned judge made reference to an earlier case (although not one cited before us) which presents a clearer instance of the ratio in L. v. L.(1) having been approved by a subsequent decision. That was the case of Re Minter (deceased)(9). In that case there had been a consent order discharging a previous maintenance order made in favour of the wife. The husband having paid her £12,000 she undertook to make no further claim against him or his estate. After her husband's death the wife applied under section 26 of the Matrimonial Causes Act 1965 for reasonable provision basing her application on the ground of fraudulent concealment of assets by her husband at the time of the compromise. Stirling, J. found that even if the order reciting the compromise in 1964, upon the dismissal of the maintenance application, recorded an agreement by the parties including a covenant to make no claim against the estate yet the wife was not barred from making such an application because the provisions of subsection 4 of that section impose an express statutory obligation upon the court to any order of the court dismissing an application for maintenance in deciding whether to make an order for maintenance out of the estate of a deceased person. He took the view that it was the intention of the Legislature in this provision that the court should not lose ultimate control of an application under section 26 and that the original order of dismissal was something that should go to the merits but should not be treated as affecting jurisdiction. Such considerations of course do not arise in the present case, but what is of interest is that Stirling, J. on the way to reaching his conclusion on the meaning of section 26 considered whether the wife in his case should be barred from approaching the courts by a parity of reasoning with the decision in L. v. L.(1). Summarising his understanding of the decision in L. v. L.(1) he says on page 415:
In Powys v. Powys(10) Brandon, J. was primarily concerned with the question whether the legislative provisions introduced in 1963 and 1970 giving the court for the first time power to make respectively lump sum orders and transfer of property orders were retrospective in their nature and thus capable of invocation by a wife who sought variation of maintenance orders made in 1962. At page 351 the learned judge said:
10. Of this Mr. Jackson says that it is of the nature of obiter. I think the same comment would fairly describe the attitude of counsel to the brief mention of L. v. L.(1) in Chaterjee v. Chaterjee(3) a case which is later to be considered in another connection. In that case once again the retroactive effect of the legislation was in question. The court in Chaterjee v. Chaterjee(3) was not considering the effect of the dismissal of an application for maintenance. The court was concerned with the question whether after a long lapse of time it was proper to grant a variation of an original maintenance order by giving the wife a lump sum to which she had not been entitled at the date of that order. But what is said by Ormrod, L.J. at pages 402 and 404 would certainly seem to imply approval of the reasoning in L. v. L.(1) as to the second of the two main issues which the court purported to decide in that case viz.: the propviety of arrangements entered into for the purpose of leaving a husband free of future financial responsibility. Then again in Brister v. Brister(11) (also arising in another connection in the present case) L. v. L.(1) is mentioned with no hint that even by that date its pedigree was in doubt. 11. In this regard, perhaps the most important of the cases touching upon the soundness of the decision in L. v. L.(1) is Coleman. v. Coleman(2) a case heard before Sir George Baker P. in June 1972. For in that case the learned President not only came to the conclusion that the words "lump sum or sums" in section 2(1)(c) of the Matrimonial Proceedings and Property Act 1970 were intended to provide for the payment of a lump sum by instalments and did not give the court power to make a second or any subsequent lump sum order but did so by express reliance on the fact that the court in L. v. L.(1) had construed the words "or at any time thereafter" in section 1 of the Matrimonial Causes (Property and Maintenance) Act 1958 as enabling the court to make one order only upon the application of the parties. 12. Then there were the cases in which the courts had expressed themselves in terms consonant with the decision in L. v. L. while not making reference to that decision. Thus in Smith v. Smith(12) Lord Denning, M.R., considering a wife's application under section 17 of the Matrimonial Causes Act 1965 for variation of a post-nuptial settlement whereby on obtaining the whole of the interest in the former matrimonial home she would abandon any further claim to maintenance, came to the conclusion that in the circumstances of the case that was a proper order to make. Mr. Jackson seeking to apply the code which he discerns in the judgment of Simon P. in M. v. M.(7) suggests that this order would merely be, as it were, a nod in the direction of any judge who might subsequently be confronted with an application for further relief. I find it very difficult to understand how this could be so although I may not have fully understood the implication of counsel's arguments upon the point. Wright v. Wright(13) is a case which at first sight offers more comfort to the appellant. A wife agreed to withdraw her claim for maintenance in return for her husband permitting her to obtain a decree nisi upon her answer to his petition. This arrangement was submitted to the judge for his approval under section 5(2) of the Matrimonial Causes Act 1965 and an oral representation was made on behalf of the wife to the effect that she would not apply for maintenance unless any unforeseen circumstance should in the future arise making it impossible for her to maintain herself. The judge approved the arrangement. Later the wife applied for maintenance and obtained an order in her favour from the registrar. The husband appealed from this order and Brandon, J. allowed his appeal discharging the registrar's order. In her turn, the wife appealed from this decision to the Court of Appeal. Sir Gordon Willmer referred to Hyman v. Hyman(14) - the foundation of the principle that the parties to such an agreement cannot by their agreement oust the jurisdiction of the court - and he went on to consider two possible and diametrically opposite views of the law. The first was that the court always has an absolute right to go behind any agreement between the parties on the question of maintenance for a wife; the second was the view taken by the judge in the court below in that case viz.: that where there is an agreement between the parties approved by the court effect must be given to it. An intermediary possibility, put forward by counsel on hehalf of the husband, was to the effect that such an agreement was merely one of many items to be considered upon the subsequent application for maintenance. This view, which appears to me to be closely similar to the position taken by Mr. Jackson in the present case in elaborating the code which he finds in the words of Sir Jocelyn Simon in M. v. M.(7) seems fairly clearly to have been discounted by Sir Gordon Willmer but that learned judge did go on to say of the agreement between the parties (page 1224):
In dismissing the appeal it is clear that he upheld the decision of the judge below but drew a distinction between strict proof and prima facie proof which however leaves intact the proposition that, even where an award of maintenance has been made, the existence of an agreement sanctioned by the court, restricting the court's right to intervene, so far from being regarded as a nullity, will have the effect of inhibiting to some extent the court's power to make a further order. I think it is of importance that the court in Wright v. Wright(13) was not dealing with a subsequent application made after the dismissal by consent of a claim for maintenance. That is to say, the L. v. L.(1) situation was not in the picture and I think that is why Sir Gordon Willmer - a few lines above the passage I have already quoted - was able to say that he was approaching the matter before him de novo and in the absence of authority. I cannot find anything in this judgment to justify the absolute character of the principle announced in the headnote to the effect that no agreement between parties can deprive the court of jurisdiction to review the question of maintenance for a wife even where an agreement has been sanctioned by the court. On the contrary I think that this decision, insofar as it touches our present concern, favours the view of Mr. French as clearly as do any of the other decisions to which reference has already been made. It disposes of the contention that an agreement which is in itself - whether by virtue of the principle in Hyman v. Hyman(14) or through the working of the statutory provisions which echo that decision - invalid and unenforceable must remain so despite the fact that it has obtained the blessing of the court. 13. Apart from these cases Mr. French relied upon expressions which are to be found in other cases and in some of the leading academic authorities which say, or imply, that a wife may wholly abandon all future claims to support. Thus, in Nash v. Nash(15) a decision like that in M. v. M.(7) intended as a headline for the profession we find Scarman, J. saying - in reference to the two features which, in his opinion, the court will look for before approving an agreement for a wife's provision -"as to the first, it can be said with confidence that the court will seldom, if ever, approve an agreement under which the wife abandons for all time her claim to maintenance unless as in Mills v. Mills, some effective provision be made for her by agreement: ...." It is true that he goes on then to say that such an agreement does not bind the wife or the court, but he supports that statement by reference to Hyman v. Hyman(14) the principle of which, of course, is not in doubt but which does not dispose of L. v. L. and which moreover preceded the statutory provisions enabling the courts to approve arrangements. He then continues:
One may ask why, in 1965, that was still said to be the better course (notwithstanding what had been said in 1961 in Barnard v. Barnard(6) as to nominal orders no longer serving a useful purpose) if, at the later date, it was not the settled opinion of the courts that the approval of an agreement to abandon future claims was fully effective to shut out any later application. There is then the statement in Chaterjee v. Chaterjee(3) where Ormrod, L.J. refers without any appearance of dissent to the fact that in L. v. L.(1) Willmer, L.J. had stressed the importance of bearing in mind (admittedly upon the assumption - contrary to his own opinion - that there was a discretion to deal with a second application) the importance, in exercising any such discretion, of the fact that a husband may have ordered his financial affairs in the belief that he was quit of his financial obligations to his wife. In the same vein are the observations of Brandon, J. in Powys v. Powys(10) where (at page 354) he considers favourably the possibility of permitting a husband "to dispose finally, by a single payment, of all his obligations to the wife." 14. Mr. French then referred us to Halsbury's Statutes and to the 12th Edition of Rayden on Divorce. In the general note, in the former work, relating to section 15 of the Inheritance (Provision for Family and Dependants) Act of 1975 which gives to the court wide powers to make orders for financial provision for dependants out of the estate of a deceased person it is said that the section enables spouses, by agreement, to obtain an order barring either of them from making an application for family provision on the death of the other. This I take is used as a buttress to the argument that there is no general feature of public policy running through the law relating to divorce which renders inoperative all attempts by spouses to oust the jurisdiction of the courts. Mr. French then had some satisfaction in pointing out that in the monumental work with which his opponent is closely associated there appears at page 789 what he termed a "bell-clear statement of principle" to the effect that where an agreement of this kind is embodied in an order dismissing the application for financial provision and property adjustment the wife's right to any further financial provision or property adjustment wholly ceases. The text is supported at this point by reference, amongst other cases, to L. v. L.(1) Mr. French concedes that the footnote does also sound a warning note by drawing cautionary attention to M. v. M.(7), Wright v. Wright(13) and one of the Solicitors Journal cases Burton v. Burton(4). In this connection counsel also pointed to the fact that Barnard v. Barnard(6), which had appeared in the index of cases in earlier editions, had disappeared therefrom in the latest editions. One should, perhaps, not pay too much attention to such adventitious portents but I do not think that they should be wholly disregarded. Mr. Jackson informed us that he did not know why Barnard v. Barnard(6) was not referred to in the 11th and 12th editions but said that it would be cited in the next supplement. For all that, when one considers the confidence with which it is now presented as being the true root of authority it is strange that it should never have been represented as such in the text. By contrast L. v. L.(1) to the present time remains firmly rooted in the footnotes, its principle flourishing in the text. In a situation where some cross-currents in opinion are manifest such straws may help to show the direction of the major stream. At all events, putting all this material together, I do not find it possible to say either that L. v. L.(1) was decided per incuriam or that it does not represent the true state of the law in England at the present time. It has not been shown to my satisfaction that under the law as it stands in England it is impossible for parties to an arrangement of this kind to obtain the court's Sanction, in a fitting case, for a final settlement of all financial and property claims upon each other including sanction to an agreement that there shall be no further approaches to the courts. Although the concept of public policy was much canvassed in the Australian case of Kitchin v. Kitchin(16) to which I must soon refer, I think Mr. French was right to point out that there are two aspects to public policy even where matrimonial matters are concerned. First there is the need to protect the wife and children against improvident settlements but secondly there is the need to preserve in this area of contract, in common with all other areas, the right to secure finality of accommodation in cases where the court can be assured that the offer is sufficiently generous and secure. Long before the legislation in England which permits the parties to seek the sanction of the court upon agreements it was the opinion of Denning, L.J. (as he then was) in Bennett v. Bennett(17) that if an agreement between husband and wife purported in express terms to oust the jurisdiction of the court - an agreement would in itself on the Hyman v. Hyman(14) principle - was taken to the court for its sanction the parties would thereby preserve the jurisdiction of the court and the agreement so sanctioned would be valid. 15. But even if L. v. L.(1) correctly represents the state of the law in England ought we to follow it here? Upon the application to vary before him Huggins, J. (relying upon Trimble v. Hill(18)) said that the courts in Hong Kong are enjoined to follow decisions of the Court of Appeal in England in the interpretation of colonial statutes which are identical to Acts of the imperial Parliament. Clearly he did not mean that we are obliged to do so or else he would not have quoted his own decision in CHAN Wai-keung v. The Queen(19) where he had said that we should not follow that court's decisions blindly. I think, with respect, that he was quite right to say immediately thereafter that where the interpretation of the statute depends upon the context of that statute in a pattern of relevant legislation the interpretation of an identical statute in another jurisdiction may be misleading. Mr. Jackson asks us to say that the Australian cases - but in particular Kitchin v. Kitchin(16), where the question of construction turned upon a closely similar phrase to the phrase in our legislation:
correctly interpret that form of words to permit a multiplicity of applications. But there is a cardinal distinction between the legislative position prevailing in the State of Victoria in 1952 and that with which the court was dealing in the present case in 1970. In 1952 in Victoria it would seem that there was no power in the court to make (a) a lump sum order or (b) to approve a maintenance agreement. Neither of these statutory powers was available to the English courts at the time of L. v. L.(1) but they are available to the courts in Hong Kong at the present time and were available in 1970. In Kitchin v. Kitchin(16) the wife (petitioner) agreed to accept £15,000 in full satisfaction of all claims to alimony and, further, undertook not to make any further or other claim or demand to the court for any increase of alimony and this agreement was embodied in an order of the court. In that case as in L. v. L.(1) and in the present case the court was considering two matters: (a) Does the wording of the section mean one application only? and (b) Can the parties by agreement oust the jurisdiction of the court? O'Bryan, J. and Sholl, J. answered both of those questions in the negative but Coppel, J., the dissenting judge, answered the first question in the affirmative. He, while holding that an order dismissing one application exhausted the jurisdiction of the court under the section, nevertheless held with the other judges that the covenant to oust the jurisdiction was void. The difference in the legislative situations in Hong Kong and in Australia to which I have referred does not touch upon the first of these questions but it is very much in point in relation to the second. So far as the interpretation of the words in section 4(1) and section 5(1) are concerned, apart from what I have already said in relation to the decision in L. v. L.(1), I find myself in full agreement with the opinion of Coppel, J. where at page 167 he says:
And later in the same paragraph he says:
As to the second question - the ousting of the jurisdiction - the views of the judges in Kitchin v. Kitchin(16) I think are admirably summarised in a passage from the judgment of Sholl, J. in which having considered the principle of Hyman v. Hyman(14) and the fact that such agreements are in themselves contrary to public policy, illegal and void, he goes on to say (page 160):
For my part I find It difficult to believe that he would have felt enabled so to express himself if the court in his jurisdiction had had at that date the power to award lump sums and to approve or sanction agreements even agreements providing for a total lump sum quittance of all future liability. 16. By contrast with the situation in Kitchin v. Kitchin(16) when the Court of Appeal in New South Wales came to consider this problem in Shaw v. Shaw(20) the Legislature in that state had provided (section 87(1)(k) of the Matrimonial Causes Act 1959) express power to sanction an agreement for the acceptance of periodic sums in lieu of rights under an order for maintenance or any right to seek such an order. Brereton, J. accepted that section 87(1)(k) of the Act did empower the court to sanction an agreement which included a promise not to resort any further to the court for relief. And he accepted that this would preclude further applications. The document which the Court was construing was not a formal agreement between the parties. It was headed "Terms of Settlement" and it contained a list of the orders to which the parties were prepared to consent and to which they did consent. None of those orders made any reference to an agreement to accept the orders as a final settlement and there was no undertaking not to return for further relief. In making the order sought by consent, however, the judge at first instance stated that he sanctioned and approved an agreement pursuant to the section 87(1)(k) of the Act. All three judges of the Court of Appeal were of the opinion that the terms of agreement as noted in the order were not such as came within that provision and the petitioner was thereby not barred from making a further application for provision for herself and her children. In coming to this conclusion however two of the judges saw fit to engage upon more or less elaborate discussions of the effect of certain of the English decisions including Mills v. Mills(21), L. v. L.(1), and Bennett v. Bennett(17), all of these discussions having as their point of departure and their rock of principle the decision in Hyman v. Hyman(14). The burden of the judgments on this matter is that there is no authority to show an inherent power in the court to sanction an agreement which is of its own nature a void and illegal agreement. They stressed, as Mr. Jackson has stressed before us, the fact that the making of orders as empowered under statute is a different matter from the sanctioning of an agreement. On the question of the inherent powers of the court both those learned judges (Brereton, J. and Asprey, J.) addressed themselves to certain general statements of principle in some of the English cases which held in favour of the existence of such an inherent power. Thus in Russell v. Russell(22) at page 295 Jenkins, L.J. had said:
In L. v. L(1) as we have seen Willmer, L.J. found that the agreement brought before the court and sanctioned by the court was enforceable. And in Bennett v. Bennett(17) Denning, L.J. said of such an agreement:
"Both of the judges in Shaw v. Shaw(20) sought to explain these expressions by reference to the special circumstances disclosed upon the facts in each case and thus to demonstrate that no general principle was being enunciated. Their general view was that the courts have no power inherently to transmute something which is in its nature void into something valid and that it requires the intervention of a statute to confer such power. I can only say, with the greatest respect, that I am wholly unpersuaded by this demonstration. All of the passages seem to me most clearly to signify what is to my mind a perfectly agreeable truth viz. : that the evil which public policy discerns in attempts by parties privately to divest themselves of rights which it is in the interest of the state that they should have is purged by the court's approval for the courts are the watch-dogs of the body politic on just such matters as these, matters which are at one and the same time of public and private concern. But apart from all that I would say that in any event insofar as statutory power is deemed necessary to give to the court a right of sanction such a power is to be found in Hong Kong in paragraph 7 of Rule 6 of the Matrimonial Causes Rules made under the provisions of section 18(B) paragraph (c) of the Ordinance. While that power is not so explicit as was the power given to the court by the New South Wales legislation I think that in the end in view of the provisions of section 15(6) of the Matrimonial Proceedings and Property Ordinance it amounts to the same thing. I will refer to those provisions later. 17. Insofar as the courts in Kitchin v. Kitchin(16) and Shaw v. Shaw(20) set themselves against the existence of an inherent power to sanction such agreements I have ventured to differ on the ground of L. v. L.(1). That case was not concerned with statutory powers, for at that date none existed to sanction or to give directions, and the learned judges were, as I understand them, expounding the Common Law. But even if they were wrong then, the point has been overtaken by Statute in Australia and in England and in Hong Kong. If the lack of inherent power "to make valid the void" is said to destroy the force of L. v. L.(1) (decided when there was no statutory power to approve), the subsequent giving of such power must call in question the value of Kitchin v. Kitchin(16). I put the matter thus tentatively because it may be said that, if there is no inherent power, the then statutory power merely to consider and to give directions is not a power to "make valid the void". As to that I can only say: (a) that I believe there is an inherent power (per L. v. L): (b) if there is not, then the statutory power should not be regarded as more limited in its nature than that conferred by the legislation in New South Wales. Where an agreement offends public policy only because it seeks to close the doors of the court in one particular matter, I think it must be within the court's power to say, in a fitting case, that the public interest is not offended. I can see no reason why the power to give directions whether by inherent jurisdiction or under the local rule should not include a power either to make an order following precisely the salient clauses of the agreement submitted to the court or else to direct simply that the agreement as sanctioned should be implemented. Mr. Jackson made much of the fact that the duty of the judge under sections 4 and 5 of the Ordinance was to make orders. That is perfectly true but he has a power also to approve agreements and he did both of those things. I find support for the view that the court has power to sanction a final clearing of accounts by former marriage partners in the fact that the Legislature itself has provided (section 15(6) of the Matrimonial Proceedings and Property Ordinance) that section 14 of the Ordinance is not to inhibit the action of the court in dealing with financial arrangements brought to it under the Ordinance or any other enactment. This, presumably, would cover applications under Rule 6 of the Matrimonial Causes Rules which gives the court power to consider such arrangements and to give directions thereon. The opening words of subsection (6) of section 15 - following precisely the formula of the 1957, 1965 and 1970 English legislation - state that the provision is for the avoidance of doubt. Whatever else that may mean, I incline to the view that it is apt also to confirm and preserve both the pre-statutory power of the court to give its sanction to agreements which might otherwise be objectionable and its present statutory powers in that behalf. 18. The primary purpose of section 15(6) is no doubt to emphasize that the power to intrude upon the private contractual arrangements of the parties is additional to and not in substitution for all other powers given to the courts by the matrimonial legislation generally. I note also that the power to give directions in relation to agreements brought before the court (i.e. by rules under section 7 of the Divorce Reform Act 1969) came into being in England later then the legislation avoiding provisions in agreements purporting to circumvent the court's jurisdiction. Nevertheless the words of section 15(6) are perfectly general in their nature and I see no reason to suppose that they were not intended to save any power which might be conferred. I think it is clear from the cases already cited - in particular M. v. M.(7) and Nash v. Nash(15) - that the English courts have regarded the power given under section 5 of the Matrimonial Causes Act 1965 (equivalent to that given by section 18B(c) of the Ordinance) as conferring jurisdiction : (a) to sanction an agreement and (b) to do so even where the agreement aims at a final settlement. 19. There is nothing equivocal about the prohibition announced in section 14. But does it aim at fettering the courts as well as the contracting parties? I am disposed to believe that it does not. When one surveys the very ample array of powers given in this legislation generally to oversee and intrude upon private dispositions at the instance of a dissatisfied party it may be tempting to conclude that the legislative trend over the century and a half since the Civil Courts in England were enabled to dissolve a marriage has been to offset the effects of a concession so questionable in relation to the health of society by preserving as far as possible the material obligations of a contract still regarded as being ideally - and uniquely - indissoluble. Something of that kind is discernible in the judgment of Sholl, J. in Kitchin v. Kitchin(16) where having considered the existing legislation he says (page 163): "
Either way, these observations are, no doubt, by way of reflection, obiter, upon the desiderata of public policy, as to which Sir George Jessel said in Gandvy v. Gandy(23) at page 379:
I bear that caution in mind. Nevertheless, if conventional wisdom and prescriptive usage are the true roots of public policy - as I take it they are - I am reluctant to believe that section 14 (or its English equivalent) is the formal declaration of a new consensus which has so modified the right to seek finality in litigation that, in this one area, it must be regarded as totally abrogated. Indeed, one might think the opposite development the more likely in view of the steadily strengthening position of women in society and the advance of public welfare generally. Therefore, although with considerable diffidence in view of the strong opinions which have been set up against this view, I think it would still be open to a court, whether here or in England, to make an order containing financial arrangements which included a stipulation that a stated lump sum payment was to be made in full and final satisfaction of all future claims. I do not think that it was argued that such a power did not exist before the introduction of the prohibitory legislation. I think it did and that it is among the powers saved by section 15(6) of the Ordinance. It may be said that in the present case Briggs, J. did not make "an order containing financial arrangements" (section 15(6)) at all. Technically that may be correct. But he did unquestionably make an order endorsing the parties' financial arrangements. Moreover his order of the 23rd of May 1970 not merely approved those arrangements but made the formal order dismissing the claim for maintenance conditional upon the coming into force of those arrangements. To my mind any distinction which might be drawn between an order of that kind and an order setting out the salient features of the arrangements themselves would in the circumstances, be somewhat unrealistic. 20. On balance it appears to me to be the preferable view that L. v. L.(1) was rightly decided and that, so far at least as the wife's interests are concerned, it ought to be followed here; alternatively the powers conferred by Rule 6 of the Matrimonial Causes Rules give warrant for the approval by Briggs, J. of the parties arrangement. 21. The case concerning the child stands upon a different statutory foundation. As I have pointed out subsection 5 of Section 5 contains provision for the court to make orders "from time to time". Willmer, L.J. in L. v. L.(1) and Coppel, L.J. in Kitchin v. Kitchin(16) are at one in the view that such a form of words would be apt to confer a right to make successive applications. Clearly, that provision escapes the restriction established by the first of the principles enunciated in L. v. L.(1). But what of the second? It is not difficult to see the desirability of leaving the courts in control of the fortunes of children of a broken marriage. In their case more than in the case of a wife the court must be mindful that it stands, as it were, in loco parentis patriae to protect those innocent and under disability, so far as possible, from the ill consequences of the breaking of the bond which was their principal guarantee of security. It should be remembered that the English legislation did not contain any such provision in respect of a child at the time that L. v. L.(1) was decided nor was there before the court in that case any question of a child's interests. It is true as Huggins, J. points out that in the course of the argument in L. v. L.(1) Willmer, L.J. did suggest that an application on behalf of the child which had been dismissed might not later be reviewable. But that indication must of course be read subject to the circumstances which I refer to above. In M. v. M. No.2(7) however a somewhat less equivocal indication may be found where Sir Jocelyn Simon, approving an agreement entered into by a wife, implies that the terms of it will be effective to ban also any further claims on behalf of her children. There is also the factor to which I have already referred: the apparent intention of the Legislature section 15(6). Not without some hesitation, I have come to the conclusion that even in the case of provision for a child it is within the court's power to sanction an agreement which absolves the husband (or the wife as the case may be) from all future financial responsibility. I think the entire slant of the authorities to which I have referred already is in favour of the view that the courts possess the power to serve the interests of finality in appropriate cases and in doing so to relinquish its own right to intervene further in the parties' affairs. Therefore where the court has made an order under section 5(1)(a) and has at the same time approved an arrangement which precludes further approaches to the court it no longer (within the opening phrase of subsection 5 of section 5) retains the "power to make an order in any proceedings by virtue of subsection (1)(a)". As for the power to vary and discharge orders conferred by section 11, I am content to echo the opinion of Huggins, J. and to say that the consent order in this case does not come within the provisions of that section. In any event, if I am correct in what has been said above concerning the decision in L. v. L.(1), recourse to section 11 is equally barred with any further application under sections 4 and 5. 22. The matters I have dealt with already seem to me to constitute by far the most important issue in this case. The remaining contentions can, I trust, to be deal with more briefly. Of these it will be convenient to take firstly what has been referred to as the Chaterjee approach. The argument here is that, at the time when Briggs, J. made the consent orders, there was not available in the law power to award a transfer of property order such as now exists in section 6 of the Ordinance. According to Mr. Jackson this section creates a new jurisdiction conferring a new and substantive right to provision. In that case a wife who had obtained an order for weekly maintenance in 1955 resumed cohabitation with her former husband in 1961 in the house which had been purchased by him. In 1974 she left her husband and successfully applied to the registrar for leave to apply out of time for lump sum payment and transfer of settlement of property orders under sections 23 and 24 of the Matrimonial Causes Act of 1973, provisions which had not been in the law at the time the original order for maintenance. The Court of Appeal dismissed the husband's appeal from this order and held that sections 23 and 24 (which correspond to our present sections 4, 5 and 6) were retroactive in their effect. Mr. French does not dispute the authority of this decision but he presses the view which was successful before Huggins, J. that is to say that the new provisions do not create new substantive rights but are merely an additional from of machinery whereby the matrimonial "pool of assets" can be distributed. He enlists the decisions in Doherty v. Doherty(24) and Wilson v. Wilson(25) in support of the contention that a distinction is to be drawn between the several sorts of financial provision which are now open to the courts to make under the various sections. The true dichotomy, he says, is between orders for periodic payments and secured periodic payments on the one hand and, on the other, orders for lump sum payments and property adjustment orders. Money is to be equated with money's worth, the house with the lump sum. Since therefore the wife's application for a lump sum has been dismissed in the present case he relies on what was said by Brandon, J. in Powys v. Powys(10) where, dealing with the effect of the decision in L. v. L.(1) the learned judge said "it does certainly decide that, once one original application for a particular kind of financial provision had been made and adjudicated upon, the court cannot entertain another original application for the same kind of financial provision." The attempt to enlist section 6 in the present case is, counsel says, an attempt to resurrect a claim to financial provision of the same kind as the one already dismissed. He also supports the finding of Huggins, J. who quoted extensively from the decision in Doherty v. Doherty(24) where Ormrod, L.J. had said that the new sections 23 and 24 of the English Act were part and parcel of a single code provided for the making of lump sum orders as alternatives to property adjustment orders, thus making a more convenient method available to the courts for a just distribution of property following upon dissolution of marriage. To my mind these are points of substance. Had the powers in section 6 been available in 1970 it may well be that a transfer of property order would have been made alternatively to the provision in the agreement, or to some part of it, so that the agreement would have been altered at the discretion of the court to include some such provision prior to dismissing the wife's claim. But I can see no reason to suppose that if these new powers had been available the wife would have been awarded something more by way of money's worth, or would have demanded something more by way of money's worth, simply by virtue of the existence of such powers. That is what I understand to be the meaning of what was said by Huggins, J. at page 10 of his ruling:
Mr. Jackson professes to find a total contradiction between that passage and the passage at the top of page 7 where the learned judge said:
But the learned judge was, as I understand it, dealing there with a wholly different matter. He was in fact expressing a measure of dissent from what had been said by Willmer, L.J. in L. v. L.(1) to the effect that, even if successive orders were permitted under the law, a sanctioned agreement would nonetheless be binding to oust the jurisdiction of the court. That has nothing to do with the suggestion that section 6 provides a wholly new form of substantive relief which remains available not withstanding the dismissal by consent of an application for lump sum and periodic payments. Huggins, J. there seems to be agreeing with the opinion of the Australian judges to the effect that the court does not have an inherent power to sanction an agreement ousting its own jurisdiction where that jurisdiction would otherwise admit of several applications. He took the view that the opinion of Willmer, L.J. was valid only in the context, of a situation which admitted of only one application for financial provision concluding for all time the rights of the parties, a situation which could in no way be touched by the later coming into force of an additional new method of distributing the assets. In other words, the first principle in L. v. L.(1) was correct, in his opinion but he demurred to the second. For the reasons I have given I do not, with respect, agree with that part of his judgment. I accept, of course, as he did the first principle, viz.: that the dismissal of a claim for maintenance, whether by consent or not, bars a second claim. But I adhere also to the second principle -that a sanctioned agreement ousting the jurisdiction is effective as against both the wife and the child of the marriage. That is what we are primarily concerned with in this case at least as regards the child, for the first of these two principles does not touch his case. 23. Kindred to the foregoing point was the contention of Mr. Jackson that in any event the wife was entitled to approach the court under section 15 of the Ordinance for the variation of a subsisting maintenance greement within the meaning of that section. To this Mr. Firstly, on the authority of Young v. Young(26) he says that the arrangements made between the parties here (consisting of the deed of arrangement and the two trust deeds) do not constitute a subsisting maintenance agreement within the meaning of the section because of the existence of the Bank trustee as a third party to the arrangement. I think Mr. Jackson's reply to that was sufficient. He says that the trustee - the Hong Kong and Shanghai Bank - is not a party beneficially entitled thereunder, unlike the third party involved in Young v. Young(26). If this contention were correct then, as Mr. Jackson has pointed out, section 15 could never apply in the case of an arrangement which involved a trust or settlement of this kind. 24. Then it is said that the proceedings before Huggins, J. insofar as the wife proposed to invoke the provisions of section 15 were misconceived. That is said to be the case because by virtue of section 2 of the Ordinance the word "court" means the District Court wherever jurisdiction is given to that court by virtue of the provisions of the Matrimonial Causes Ordinance and section 10(B) of the latter Ordinance gives the District Court any power exercisable under section 15 of the Matrimonial Proceedings and Property Ordinance. This situation Mr. French says is underlined by the provisions of subsection 3 of section 15 of the latter Ordinance which says that the District Court shall not entertain an application under subsection 1 of the section unless both parties to the agreement are resident in Hong Kong. There is then the fact that Rule 100(1) of the Matrimonial Causes Rules provides that an application under section 15 of the Matrimonial Proceedings and Property Ordinance for the alteration of a maintenance agreement shall be made by originating application containing the information required by Form 16. Form 16 which appears in the appendix to those rules is headed "in the District Court of Hong Kong ......". Further, it is objected that the wife's affidavits do not disclose what alterations she desires to be made in the instrument of sectlement and this, counsel says is something the husband was entitled to know in order to be apprised of the relief which was sought against him. or to afford him an opportunity of coming to some agreement with his former wife concerning her suggestions. Again, it is said that the wife has not actually sworn that she is resident in Hong Kong but merely states in the part of her affidavit preceding the jurat, that she is staying at a certain hotel in the Colony. It is common ground that the wife had, prior to the proceedings before Huggins, J., very recently recurned to Hong Kong and had, indeed, come for the purpose of taking part in those proceedings. The affidavits disclosed that it was her intention to live either in Germany or in England with the child of the marriage and the effect of this latter objection is that not a sufficient quality of residence has been shown, in any event, to justify her approaching any court in Hong Kong under section 15, on the ground that it has not been shown that she is either domiciled or resident in Hong Kong. It was also said that the form of the application was wrong inasmuch as a claim under section 15 shall be made by originating application, (Rule 100 of the Matrimonial Causes Rules), in the District Court (section 19B(b) and section 10E(1) of the Matrimonial Causes Ordinance), and that it should include the information required by Form 16 which of course would include the particular alterations desired in respect of the deeds. Huggins, J. by stating more than once that several of these defects were readily curable came to the conclusion that if the remedy under section 15 was available at all there should be a new claim in proper form. He was also of the view that the words "resident for the time being" in section 15(1) imply some element of permanance of residence and that as this was not shown on the affidavits the objection to jurisdiction, should probably have been upheld on that ground also. 25. To all of this Mr. Jackson objects that it constitutes "barrage of technicalities". So far as the question of residence is concerned he says that the wife has sworn that she is resident and that is sufficient to found the application, there being nothing upon the other side. As to the forum, he asks us to say that in any event the High Court has all the powers of the District Court for purposes material to this case and he says that if the application was technically wrong in regard to the form of summons taken out this is a classic case for the application of the remedial provisions of Order 2 rule 1 of the Rules of the Supreme Court. So far as Hong Kong being the correct forum for the litigation of these matters I think Mr. Jackson must be right. insofar as it may be that the wrong court in Hong Kong was chosen I can only say that I hope it is the case that the rules admit sufficient flexibility for the curing of any such defect. I would regard it as wholly unjust that the matters of substance between the parties should have to be decided upon such a point as a possible mistake as to the choice the tribunal, more especially in view of the power given by section 10E, and the rules made thereunder which allow of the transfer of matters concerning ancillary relief, commenced in the District Court, to the Supreme Court. But in any event I do not find it necessary to come to a final conclusion in respect of all these many tangled procedural and jurisdictional objections for, as it seems to me, any claim under section 15, in common with all other claims that she may have, is barred by reason of the wife having agreed in the Deed of Arrangement that she would "make no further financial claim or demand against the husband either on her own account or on hehalf of the child" and by reason of her having consented to the dismissal of her claim. It is clear that the learned judge in chambers would have dismissed the section 15 claim upon that ground save that, when he came to give his considered reasons, he found himself disposed to accede to the argument that he might have had a jurisdiction in regard to the case of the wife arising from what had been said concerning all those matters of mistake or misrepresentation or lack of adequate advice which in sum were said to vitiate the wife's consent to the agreement which ousted the court's jurisdiction. I think, with respect, he was wrong to think so and to that matter, the final point in this appeal, I must now turn. 26. What was said about the agreement involving the three deeds, assuming it to be enforceable, was, as I understood the argument, that the entire arrangement required further inspection by the court which, it was said, upon a close examination of the many clauses and provisions thereof and upon a consideration of the background circumstances of all parties concerned, would be driven to the conclusion that the agreement so wholly inadequately reflected the true intentions of the wife, the merits of her position, and the true needs of herself and the child, in relation to the father's power to provide, that the intervention of the court was required to recast the whole seale and manner of the provision for the husband's former dependants. To this must be added the indictment of the court's interventions thus far, on the ground that the scrutiny given to the terms of the arrangement on the several occasions when the matter came before Briggs, J., whether in court or in chambers, was too cursory to reflect an adequate appreciation of the radical deficiencies which that arrangement is said to disclose. I do not propose to discuss these alleged deficiencies which have been sufficiently canvassed in the other judgments in this appeal. It is clear that Huggins, J. was himself somewhat exercised about certain features of the arrangements particularly in relation to the provision made for the child. As regards the submission that the consent order was a nullity because Briggs, J. did not have sufficient information to be satisfied that it was proper to dismiss the application on the basis of the parties agreement (in particular, in this connection, Mr. Jackson mentioned the lack of an affidavit of means by the husband), Huggins, J. took the view that there was jurisdiction to make the order and that any attack upon the consent order of the 16th of January 1970 should have been either by way of appeal or by way of a separate proceeding. With that view I am in full agreement, but on the question of mistake and misrepresentation it seems to me that the learned judge ought to have taken a similar view. It may be that there are many criticisms which can legitimately be made of the arrangement from the point of view of the wife and child. In particular there is the question of the dominant position which appears to be given to the settlor-husband as co-trustee with the bank. But all of these matters as it seems to me are fit subject for an appeal or for an action to set aside on stated grounds. In Wilkins v. Wilkins(8) a husband, had made a financial arrangement with his wife and subsequently obtained a decree nisi and consented to an order for maintenance in terms of the agreement. Later, he returned to the court with an application to vary on the ground that he had completely miscalculated the nature of his own agreement. At this point a new consent order was negotiated with less onerous terms. Subsequently the husband took out a further summons to vary the substituted consent order on the ground that he could not afford to pay. This application, which was made before the registrar, succeeded and the registrar varied the second consent order. From this decision the wife appealed. Baker, J. allowing the appeal held that the Registrar should not have done so even though the judge's order was by consent. He held that once a judge has approved a consent order it would be wrong in principle for the court to upset the order, in the absence of fraud, other than upon appeal. It is of interest that in the same case the learned judge also relied upon a passage from the judgment of Willmer, L.J. in L. v. L.(1) where the latter had said that he was not impressed by the argument that the sanction of a court to an agreement is not properly obtained unless there is full investigation by the court of all the circumstances, with affidavits of means filed on both sides. In Coleman v. Coleman(2) at page 20 Sir George Baker having expressed the view that finality can be achieved by agreement went on to say that there was much to be said for leaving decisions to the discretion of the court to be exercised in the light of changed circumstances but added that:
On the other hand in Brister v. Brister(11) where a husband sought to have a patent error in a consent order for maintenance corrected by application to the registrar and upon that being refused appealed to the Court of Appeal, Ormrod, J. rejected the contention that the order had created an estoppel, firstly or the ground that there was no contractual basis for the estoppel, which derived only from the order, but secondly because the order was itself not a final but an interlocutory order. And for that latter proposition he relied upon the decision of Jessel, M.R. in Mullins v. Howell(27). He also called in question the opinion of Baker, J. in Wilkins v. Wilkins (quoted above) and he said:
Earlier, however, in dealing with the argument of counsel that the consent order was essentially a contract embodied in an order and could be relied upon as an estoppel he went on to say that though there were many authorities which would support that contention they were all cases arising from judgments or orders made by consent by parties litigating in other divisions of the court. And then he said at page 668:
He quotes L. v. L.(1) in support of that proposition. Huggins, J. relying upon Brister v. Brister(11) and Mullins v. Howell(27) found that there was power to vary a consent order where that order was not final but interlocutory. He referred for this perpose to Salter Rex & Co. v. Ghosh(28) where it is said that the question whether an application is of an interlocutory or final nature depends upon the nature of the application itself and not upon the finality of the order made. Taking that as his base, he then purported to follow the authority, which Mr. Jackson has also urged upon us, in this court, the decision in Guerrera v. Guerrera(29), where it was held that orders made on applications for ancillary relief in matrimonial proceedings in the Family Division, including orders for the transfer of property or the payment of a lump sum, are to be regarded as interlocutory orders for the purposes of an appeal. With respect I do not see how that decision established the matter before the learned judge as an interlocutory application. It may be that, as he said, "appeals against property adjustments or financial arrangements in divorce proceedings are interlocutory appeals" but the matter before him was not an appeal but an application to vary. Further, a patent element of finality was lacking in Guerrera v. Guerrera(29) as in Brister v. Brister(11) for the consent orders were not made by way of dismissal. Huggins, J. considering that question rejected the idea that a consent order dismissing a prayer for maintenance was "somehow more inviolate than a consent order granting maintenance ..." but he rejected that contention on the basis of the inherent jurisdiction of the court to prevent injustice. To my mind the matter is concluded by the passage I have already quoted from the judgment of Ormrod, J. in Brister v. Brister(11). The question whether the order in the present case was of a final nature or not brings us back once more to the question with which we started : the validity of the agreement to oust the jurisdiation of the court. Once it is granted that that was a valid arrangement then, ...(illegible) the words of Ormrod, J., under the consent order in this case there is to be found a true the contract and the order in this is one of a final nature. For these reasons even in regard to the question of mistake, misrepresentation or inadequate judicial consideration I agree with Mr. French that the proceedings before Huggins, J. were not competent. In the final result I would dismiss this appeal and allow the cross-appeal. Representation: Joseph Jackson, Q.C., Nicholas Wall and B. Downey (Hampton, Winter and Glynn) for appellant. Christopher French, Q.C., Charles Ching, Q.C. and D. Chang (A. Tsang & Co.) for respondent. (1) (1962) Probate Division 101 (2) (1973) L.R. Fam. Div. 10 (3) (1976) 2 W.L.R. 397 (4) (1964) 108 Sol. J. 584. (5) (1967) 111 Sol. J. 926. (6) (1961) 105 Sol. J. 441. (7) (1967) L.R. Probate Div. 313. (8) (1969) 2 All E.R. 463. (9) (1967) 3 All E.R. 412. (10) (1970) L.R. Probate Div. 340. (11) (1970) 1 All E.R. 913. (12) (1971) All E.R. 244. (13) (1971) W.L.R. 1219. (14) (1929) A.C. 601. (15) (1965) L.R. Probate Div. 266. (16) (1952) V.L.R. 143. (17) (1952) 1 K.B. 249. (18) (1975) A.C. 342. (19) (1965) H.K.L.R. 815. (20) (1965) 66 Sr. N.S.W. (21) (1940) P. 124. (22) (1956) P. 283. (23) (1881-5) All E.R. Rep. 376. (24) (1975) 3 W.L.R. 1. (25) (1975) 3 W.L.R. 357. (26) (1973) 117 So1. J. 204. (27) (1879) 11 Ch. Div. 763. (28) (1971) 3 W.L.R. 31. (29) (1974) 3 All E.R. 460.
----------------- Coram: Pickering, J.A., McMullin & Leonard, JJ. Date of Judgment: 17th December, 1976. ----------------- JUDGMENT ----------------- Leonard, J. : The fundamental matters for decision here appear to me to be firstly whether the words "at any time thereafter" used in sections 4 and 6 of our Matrimonial Proceedings and Property Ordinance permit a plurality of application and secondly, if they do, whether it is open to an applicant to make a second application having agreed to and suffered the "dismissal" of the first. I agree with Pickering, J.A. that this court is not obliged to follow either of the rationes on which the case of L. v. L.(1) was decided and I consider that since Barnard v. Barnard(2) was not before the court in L. v. L.(1) and no clear guidance can be gained from later case law the question as to whether a party whose application for financial provision has been "dismissed" can re-apply should be treated as res integra. Barnard v. Barnard(2) in deciding that a nominal order is unnecessary in order to keep alive the wife's rights assumes an affirmative answer to the question. Since that is the assumption of three Lords Justices and since a similar assumption appears to have been made by Karminski J. in R. v. R. (No. 2)(3) it would require a most compelling indication in our legislation to persuade me that the wife is not free to come back on her own behalf and on behalf of the child in this case. 2. Little assistance is to be obtained from decided cases on the meaning of the phrase "at any time". Used in a covenant in a marriage settlement to settle after-acquired property becoming owned at any time during coverture it clearly meant "at any one time" (Re Hoopers Trust 1865 5 New Rep. 462) but in Digges' Case(4) it was held that a power to do a thing "at any time" is not confined to one execution the words being regarded as equivalent to "from time to time as often as the donee of the power shall think good". In sections 4 and 6 of our Matrimonial Proceedings and Property Ordinance the words are used in conferring a jurisdiction but the entire phrase is "on granting a decree ... or at any time thereafter (whether ... before or after the decree is made absolute)" so that in themselves they are ambiguous. 3. I look for their interpretation to the legislation as a whole and see the fundamental difference between the parties in this case as a conflict between the parties in this case as a conflict between the desirability of finality on the one hand and the desirability that in family matters the courts should retain flexibility on the other. 4. The jurisdiction of the courts in Hong Kong to order financial provision stems from section 29 of the Divorce Ordinance 1933. This section enabled the court "on any decree" to order the husband to secure to the wife such gross sum of money or such annual sum of money for any term not exceeding her life as "having regard to her fortune, if any, to the ability of her husband and to the conduct of the parties" was reasonable. Subsection (2) empowered the court, again "on any decree" to make an order on the husband for payment to the wife during their joint lives of monthly or weekly sums for her maintenance and support any such order might be made either in addition to or instead of an order under subsection (1). Subsection (3) enabled the court "if the husband afterwards from any cause becomes unable to make such payments" to discharge or modify the order or temporarily suspend it as to the whole or any part of the money so Ordered to be paid, and again to revive the order wholly or in part as the court might think fit. This subsection applied to orders under both subsection 1 and subsection 2. Subsection 4 enabled the court where it was satisfied that the means of the husband had increased to increase the amount payable under the order. This subsection applied to orders under subsections 2 and 3 but not to orders under subsection 1. The powers conferred under section 29 and its wording were similar to the powers conferred and words used in section 190 of the Supreme Court of Judicature (Consolidation) Act 1925. Subsections 3 and 4 of our Ordinance took the places of the proviso to subsection 2 of the 1925 Act so that in 1933 the court could, in Hong Kong, discharge, modify or suspend an order made under section 29(1) if the husband became unable to pay. An order made under subsection 2 or 3 could only be altered if the means of the husband increased. These two exceptions apart no order could be made otherwise than "on the decree". Our law in this respect remained unchanged (although there were substantial amendments to the Divorce Ordinance in 1956) until 1967 when the Matrimonial Causes Ordinance No. 1 of 1967 was enacted, repealing our 1933 Ordinance. The relevant provisions of the Matrimonial Causes Ordinance of 1967 were based on section 16 of the Matrimonial Causes Act 1965 in England, to which our section 28 corresponded. This reads :
Subsections 2 and 3 are immaterial. Section 43 of this Ordinance was derived from section 31 of the 1965 Act and provided :
[Section 41(2) of the 1967 Ordinance was derived from section 29 of the Matrimonial Causes Act 1963, and defined ancillary relief with reference inter alia to section 28(1)]. It was clearly the intention of our Legislature, then, to bring our law into line with that pertaining in England which had widened the jurisdiction of the courts. 5. Substantial amendments to our Matrimonial Law were made in 1972. These amendments came about by the Matrimonial Causes (Amendment) (No. 2) Ordinance 1972 and by the enactment of the Matrimonial Proceedings and Property Ordinance 1972. Both of these Ordinances came into force on the 1st July 1972 so that they were clearly closely interlinked in the mind of the Legislature. The Matrimonial Causes (Amendment) (No. 2) Ordinance brought into force here the amendments in the law of divorce that had been enacted in England in the Matrimonial Causes Act 1969. Sections 4, 5 and 6 of Matrimonial Proceedings and Property Ordinance correspond to sections 2, 3 and 4 of the Matrimonial Proceedings and Property Act 1970. Section corresponds to section 5 of the English Act and lists matters to which the court is obliged to have regard "in deciding whether to exercise its powers under sections 4 or 6". These include "(a) the income, earning capacity, property and other financial resources which-each of the parties to the marriage has or is likely to have in the foreseeable future; (b) the financial needs, obligations and responsibilities which either of the parties to the marriage has or is likely to have in the foreseeable future; and (c) any physical or mental disability of either of the parties to the marriage;" These particularly the last quoted are matters susceptible of change. The expression used in the opening words of this section is I emphasize "In deciding whether to exercise its poers to make orders..." rather than "In deciding whether to grant or dismiss applications". 6. The orders which may be made under section 4 are for periodical payments, secured periodical payments and "such lump sum or sums as may be so specified". The orders which may be made under section 6 are for property transfers, property settlements, orders varying ante-nuptial or post-nuptial settlements and orders extinguishing or reducing the interests of either of the parties to the marriage under such settlements. Section 5(1) enables the court to make financial provision for a child of the marriage by making any one or more of the orders mentioned in subsection (2) :
The orders mentioned in subsection (2) are orders for periodical payments, for secured periodical payments and for "such lump sum as may be so specified." A lump sum may be made payable by instalments which may be ordered to be secured. Subsection (5) of this section is of interest. It reads :
That the Legislature should have thought it necessary to change the construction here from "at any time thereafter" to "from time to time" and specifically to confer poser to make a "further order" is a matter which I must regard as some indication that once orders have been sought under sections 4 or 6 and refused a spouse cannot come back again. The question is, is it a compelling indication when the legislation is read in its entirety and given "such fair large-liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit" that section 19 of the Interpretation Ordinance requires. I do not think so. Section 11(1) of the Ordinance (which corresponds to section 9 of the English Act) enables the court to vary or discharge or to suspend temporarily any provision (or to revive the operation of any provision suspended) of orders made by virtue of section 4(1)(a) (periodical payments or section 4(1)(b) (secured periodical payments) section 4(2)(b) (payment of lump sum by instalments) section 5(2)(a) (periodical payments to child) section 5(2)(b) (secured periodical payments to child) section 5(4) (payment of lump sum by instalments to child) and any order made by virtue of section 6(b) (settlement of property) section 6(c) (varying ante-nuptial or post-nuptial settlements of property) or (d) (extinguishing or reducing interests under any settlement). The court is not enabled to vary discharge or suspend orders made under section 4(1)(c) (lump sums) section 5(2)(c) lump sum to child) or section 6(a) (transfers of property). These omissions do not appear to me to be of significance since orders under these subsections would be of immediate effect and they could not be undone by variation or discharge. The omissions are not a curtailment of jurisdiction but rather a recognition that the subject matter of such orders may have been disposed of. Subsection (5) of section 11 is of interest. It provides :
This prevents orders for transfer and settlement of property and variation of settlements from being made on applications for variation of periodical payments or secured periodical payments (to spouse or child) and prevents lump sum orders being made on applications for such variations (in the case of spouse only) or in cases of applications brought by either party to an existing marriage for variation of an order previously made providing for periodical payments or secured periodical payments. This again is to my mind more a wise curtailment procedurally than a limitation of jurisdiction. It prevents orders fur property transfer, settlements of property and variation of settlements and orders for lump sum payments being made on applications for variation of periodical payments and thereby prevents surprise. It does not however suggest that applications for orders for property transfer etc may not be made while orders for periodical payments are still in force. Subsection (7) obliges the court when exercising the powers conferred by section 11 to have regard "to 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 and, where the party against whom that order was made has died, the changed circumstances resulting from his or her death." The Legislature clearly has constantly in mind the effect which changing circumstances may have and intends to preserve to the court that flexibility frequently referred to as desirable in family matters. 7. Section 14 (which corresponds to section 13 of the English Act) renders void any provision in a maintenance agreement restricting any right to apply to a court for an order containing financial arrangements while keeping alive any other financial arrangements. "Maintenance agreement" is defined in very wide terms as meaning any agreement in writing made .... between the parties to a marriage, being
The variety and technicality of these provisions in our Matrimonial Proceedings and Property Ordinance represent a marked change from the simplicity of the provisions originally contained in our Divorce Ordinance, when the only powers given to the courts were to secure the payment to the wife of a gross sum or an annual sum for any term not exceeding the life of the wife or to order monthly or weekly payments to be made to a wife. Each amendment of those I have listed shows the tendency of the Legislature to widen the powers of the court and to give the court a greater discretion. We see a tendency towards flexibility welcomed in England as early as Mills v. Mills(5) when the application had still to be made "on a decree" Sir Wilfrid Greene, M.R. there observed that it would be unfortunate to attempt to lay down a precise time limit within which an application might be said to be made "on the decree", provided it be a reasonable one in relation to the date of the decree. The tendency to enlarge the discretionary powers of the court became more marked with the passage of the Divorce Reform Act 1969 and the Matrimonial Proceedings and Property Act 1970, two enactments which went hand in hand. Our corresponding legislation the Matrimonial Causes Ordinance and the Matrimonial Proceedings and Property Ordinance, both of 1972, both of which came into force on the same day, are as closely connected one with the other. Commenting on the inter-relation of the two Acts in England in Wachtel v. Wachtel(6) Ormrod, J. had this to say :
Lord Denning, M.R. reading the judgment of the court of Appeal referred to the plaint of Lord Hodson in Pettitt v. Pettitt(7) at 811 when he had said :
and commented :
He had earlier observed :
When discussing the one-third rule he observed :
8. It is I consider against this background of constantly widening powers and the desire to give flexibility to the courts in family matters that one must approach the question of jurisdiction. One must I consider strain to accept jurisdiction rather than to reject it. Against the desire for finality must be set the desirability of flexibility. 9. It is to be noted that the particular sections in question contemplated the making of orders or the refusal to make them rather than the granting or dismissal of applications. Indeed in the light of the wording of the sections the very word "dismissal" appears inappropriate. One does not dismiss an application for maintenance except in a loose sense of the word; one refuses to make an order on it. As early as Hyman v. Hyman(8) it is observed :
An agreement by a wife to "barter away her right to future maintenance" was contrary to public policy. The court has in the wording of section 7 to "decide whether to exercise its powers under sections 4 or 6". The Ordinance does not visualise anything so final as dismissal of an application once and for all. Insofar then as the agreement entered into in this case provided that the application for maintenance should be dismissed it was inaccurate in its terminology. So too was the order questioned in these proceedings. 10. In Bennett v. Bennett(9) Denning L.J. (as he then was) when holding that a covenant in a deed by a wife not to proceed with her prayers for maintenance was void as being contrary to public policy appears to have regarded ouster of the jurisdiction of the court as the offeasive factor. It seems however from Hyman v. Hyman(8) that the public interest to be safeguarded is not only that the jurisdiction of the court should not be ousted but also the public interest that the husband's duty of maintenance should be preserved. True the public interest no longer centres on the husband's duty to maintain the wife but on the duty of the party who is the more affluent to support the party who is the less affluent. That the obligation is now mutual does not to my mind change the public interest in its performance. Notwithstanding section 14 of the Ordinance the question is not entirely academic for the second ground upon which L. v. L.(1) was decided is dependent upon Bennett v. Bennett(9) and it is from Bennett v. Bennett(9), that the observation of Jenkins, L.J. in Russell v. Russell(10) that :
stems. I do not think we should follow these pronouncements or the second ratio in L. v. L.(1) because of the wideness of the canon of public concern accepted in Hyman v. Hyman(8). If it had been the intention of the Legislature to enable the court to deprive itself of future jurisdiction by sanctioning agreements restriction any right to apply to a court for any order containing financial arrangements it would have been easy for the Legislature to have inserted words "other than an agreement approved or sanctioned by the court" in section 14 I find the precise purpose of section 15(6) hard to follow but do not think this is its intention. If it is it might with advantage have been more explicit. As it stands I read it as saving jurisdiction and not as limiting it. I am not impressed by the argument that the provision in the agreement here did not restrict the right to apply to a court because it required an application to the court. I am not impressed because a provision requiring or permitting one application amounts to a provision restricting the right to apply if only one application can be made. That the Matrimonial Causes Ordinance radically altered the basis of divorce is apparent and with this alteration came changes in the law of maintenance. Indeed throughout the demesne of family law one can observe greater freedoms most evident being the freedom of the parties to come to agreement. In the words of Lord Denning in Wachtel v. Wachtel(6):
This break with tradition is nowhere shown with more clarity than in giving jurisdiction to make awards in favour of either party when previously they might have been made only in favour of the wife. The fact of such a break must be acknowledged. However, a limitation on the new freedom to contract is immediately apparent and not only because of the statutory invalidity of a provision purporting to restrict the right to apply to the court. Either party, to an agreement freely arrived at may, because of section 15, seek to have it altered. All financial arrangements in a maintenance agreement are by the section subject to alteration and by section 16 alteration even after the death of a party is possible. The emphasis once again is on flexibility rather than finality. Whether or not the documents in this case constitute a maintenance agreement (and I am of the view that they do notwithstanding the superimposition on them of the order of court or the appointment of a trustee) is immaterial to the interpretation of sections 4, 5 and 6. The purpose of section 15 is clear and its effect is to impose severe limitation on freedom to contract with finality. It is noteworthy that agreements may be altered even where a change in circumstances has been foreseen by the parties when making the agreement. Sections 4, 5 and 6 must be read with this in mind. 11. The entire tenor of the legislation is in my view to preserve to the court flexibility and Jurisdiction to make such orders as the circumstances prevailing at the time of the application demand. The tenor is such that the courts should be anxious to find jurisdiction rather than to reject it. I am therefore of the opinion that neither of the rationes in L. v. L.(1) should be followed. 12. I would allow this appeal with costs here and below and hold that the learned trial judge had jurisdiction to entertain applications for the various reliefs set out in paragraphs 2, 3, 4, 5, 6, 7, 8, 9 of the amended inter partes summons (redated the 21st January 1976). Such reliefs if granted would have the effect of varying the consent order made on 23rd May 1970. I do not consider that jurisdiction to set it aside exists in proceedings constituted as these are constituted nor that these proceedings are suited to or proper for that purpose. It is unnecessary for me to go into my reasons for so holding since the same result can be attained without the consent order being set aside. Again any orders under prayers 2 to 9 inclusive would have the effect of varying the financial arrangements contained in the deed of arrangement and the two trust deeds annexed and it is therefore unnecessary for me to consider the various technical difficulties raised by counsel for the respondent to the assumption of jurisdiction, in the proceedings as they are now framed, under section 15 of the Matrimonial Proceedings and Property Ordinance. 13. I would remit the matter as proposed by Pickering, J.A. Cate to appellant have and below with certificate for 2 counsel Parties to be at liberty to apply. Representation: Joseph Jackson, Q.C., Nicholas Wall and B. Downey (Hampton, Winter and Glynn) for appellant. Christopher French, Q.C., Charles Ching, Q.C. and D. Chang (A. Tsang & Co.) for respondent. (1) (1962) P. 101. (2) (1961) 105 So1. J. 441. (3) (1967) 111 So1. J. (4) 1 Rep. 173 (5) (1940) P. 124. (6) (1973) F. 72. (7) (1970) A.C. 777. (8) (1929) A.C. 601. (9) (1952) 1 K.B. 249. (10) (1956) P. 283. |
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