Hyman v Hyman

Lorp HamsHuam L.C. My Lords, this
is an appeal from an order of the full Court of Appeal in
England dismissing an appeal from an order of Hill J. made
in a divorce suit brought by the respondent against the
appellant, whereby the learned judge decided that the
respondent was not precluded frgm prosecuting her claim
for maintenance by reason of the terms of a deed of separation

(1) 7 P. D. 168, 172. (5) [1926] P. 1.

(2) (1885) 30 Ch. D. 57. (6) [1909] P. 123.
(3) (1887) 57 L. J.(P. D. & A.) 31. (7) [1902] P. 270.
(4) [1897] P. 138. (8) [1908] W. N. 81.

A. C. AND PRIVY COUNCIL.

605

entered into between the parties in the year 1919. The H.L.(E.)

facts are not in dispute, and may be shortly stated.
The parties were married on September 14, 1912, and
cohabited for some years ; there is no issue of the marriage.

1929
HyMan

v.
HYMAN,

On September 20, 1919, a deed of separation was executed ror Hailsham

between the appellant of the first part, the respondent of the
second part, Walter Hyman, who is the appellant's brother,
of pthe thirdpart, and two trustees of the fourth part. By
the said deed the appellant covenanted for himself, his
executors and administrators that he would pay two sums
of 200/. and 2000]. respectively to the respondent, and that
in addition he would pay to the respondent a weekly sum of

201. free of income tax for her separate use and benefit and »

for her maintenance during her life. The payment of the
20001. and of the clear weekly sum of 201. was guaranteed by
Walter Hyman by clause 2 of the deed. By clause 3 of the
deed the respondent and the trustees covenanted that neither

the respondent nor any person on her behalf should at any -

time thereafter molest or disturb the appellant or by any
means either by taking out citation or process or by instituting
any action in England or elsewhere or in any other manner
compel the appellant to cohabit with the respondent, or
endeavour to enforce any restitution of conjugal rights or to
compel the appellant to allow the respondent any alimony or
maintenance further than the said weekly sum of 201, and the
- aforesaid sums of 200/. and 2000]. The two sums of 2001,
and 20001. were duly paid, and the appellant has regularly
made the payment of the weekly sum of 201.

At the time of the deed of separation the appellant was
living in adultery with another woman, and he continued to
live in adultery after the date of the deed. On July 18,

1923, the Matrimonial Causes Act of that year became law, -

whereby for the first time a wife was given the right to obtain
a divorce solely on the ground of adultery by her husband.
On January 11, 1926, the respondent filed her petition for
divorce on the ground of the appellant's adultery during the
two preceding years. .
On January 25, 1927, a decree nisi was pronounced, and
A. C. 1929. 3 2T

606 HOUSE OF LORDS [1929]

H.L.(E.) on February 7, 1927, the respondent filed a petition for

1929 permanent maintenance. On April 28, 1927, the appellant

Hyman swore his answer to the petition and relied on the pro-

Hyman. Visions of the deed of separation. On October 31, 1927,

lord Hailsham 20 Order was made that the questions arising on the deed of

et separation be set down for hearing as a preliminary issue,

and on February 10, 1928, the issue came on for hearing

before Hill J., who adjourned the hearing in order that the

respondent might apply to make the decree nisi absolute.

On February 27, 1928, the decree was made absolute, and on

March 27, 1928, Hill J. delivered judgment in the issue, and

ordered that the respondent was not precluded from prosecuting

her claim for maintenance by reason of the deed of separation.

in giving this decision the learned judge followed the

decision of the President of the Probate, Divorce and

Admiralty Division in a case of Hughes v. Hughes (1), which

had been given on the previous day. The appeals in the case

of Hughes v. Hughes and in this case were argued before the

full Court of Appeal, and on June 18, 1928, that Court ordered

that both appeals should be dismissed, and gave leave to

appeal to your Lordships' House. Lawrence and Russell L.JJ.
dissented from the view of the majority of the Court.

The decision of the Court of Appeal was based partly on
the ground that the deed of separation on its true construction _
ceased to operate when the relation of husband and wife .
ceased to exist, and, therefore, that there was no agreement
by the respondent not to bring her petition for maintenance |
before the Court. If this contention be well founded the
obvious result is that the appeal must fail.

But the majority of the Court of Appeal further reached
their decision upon the ground that, even if the respondent
had covenanted in express terms not to bring the present
petition, she could not be bound by such a covenant so as to
preclude the exercise by the Court of its statutory power to
award maintenance. This second ground of decision raises a
question of far-reaching importance, and if it be correct, it
is sufficient to decide the appeal.

(1) [1929] P. 1.

A. C. AND PRIVY COUNCIL.

For the purposes of my judgment in the present case I
am prepared to assume that the respondent's covenant in
the deed of separation does bear the wide construction put
upon it by the appellant, and does amount to a covenant
not to bring the petition for maintenance, which is the subject-
matter of the present proceedings. The point to be deter-
mined upon this hypothesis is whether such a covenant is
effective to preclude the respondent from prosecuting her
claim. It is convenient to turn first of all to the language
of the statute. By s. 190 of the Supreme Court of Judicature
(Consolidation) Act, 1925, it is provided :—

"(1.) The court may, if it thinks fit, on any decree for
divorce or nullity of marriage, order that the husband shall,
to the satisfaction of the court, secure to the wife such gross
sum of money or 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,
the court may deem to be reasonable, .... and may, if it
thinks fit, suspend the pronouncing of the decree until
the deed or instrument has been duly executed.

"*(2.) In any such case as aforesaid the court may, if it
thinks fit, by order, either in addition to or instead of an
order under sub-section (1.) of this section, direct the husband
to pay to the wife during the joint lives of the husband and
wife such monthly or weekly sum for her maintenance and
support as the court may think reasonable."

There follow provisos-for the variation or discharge of
the order.

Sub-s. 4 is in the following terms: '' Where any decree
for restitution of conjugal rights or judicial separation is
made on the application of the wife, the court may make
such order for alimony as the court thinks just."

These provisions are a re-enactment of provisions first
appearing in the Matrimonial Clauses Act, 1857, as modified
by later Acts in 1866 and 1907; and the question which
your Lordships have to determine must, in my opinion,
depend upon the view taken by your Lordships as to the

true meaning and effect of this section.
3 2T2

607

H. L. (E.)
1929
Hyman
v.
HYMAN.
Lord Hailsham
L.C.

608 HOUSE OF LORDS [1929]

H. L. (E.) Before 1857 it was not competent for any Court to dissolve

1929 @ marriage validly contracted; in order to effect such a

Hyman dissolution it was necessary to have recourse to an Act of

Hyuan, Parliament. In 1857 the Legislature for the first time gave

Lord Hailsham 10 the Courts the power to dissolve the marriage tie by a decree

ee of divorce. Such a decree does not merely affect the relation-

ship of the husband and the wife one to another, but it also

changes the status of each of them. In my view, the effect

of the section to which I have called attention is to give power

to the Court as incidental to the exercise of these powers

and as a condition of their exercise to compel the husband

to make adequate provision for the support of the wife. Such .

a provision is not made solely in the interests of the wife, |

but also in the interests of third parties who may deal with ©

the wife or who may, as in the case of Poor Law Guardians, °

| become responsible for her sustenance. If this be the proper

inference from the language of the statute, I am prepared

| to hold that the parties cannot validly make an agreement

either (1.) not to invoke the jurisdiction of the Court, or

(2.) to control the powers of the Court when its jurisdiction
is invoked.

In the present case the husband agreed to make a large
money payment at the date of the deed of separation and
to make a substantial weekly payment for the maintenance
of his wife during her life; and, as an additional advan-
tage, the wife obtained the guarantee of Mr. Walter Hyman
for the due observance of these obligations. But your
Lordships are not now being invited to consider whether
the provision in the deed of separation is adequate; the
only question which is before your Lordships' House is whether
or not the existence of the wife's covenant in the deed of
separation precludes her from making any application for
maintenance. For this purpose, it can make no difference.
whether the consideration given by the husband was adequate.
or not; the question of principle would be the same if there»
had been no weekly payment provided at all. In my opinion,
the fact that the deed of separation has been entered into by
both parties, the fact that it was executed by the wife .

Cc

A.C. . AND PRIVY COUNCIL. 609

voluntarily and upon independent legal advice, the fact. that H. L. (E.)
the wife was prepared to accept the provision then made as. 1929
adequate at the time, the benefits which she obtains in the. Hyman
shape of the guarantee by Mr. Walter Hyman and in the: HyMta ad
continuance of the weekly payments after her husband's';,.4 Haitsham
death, all form part of that conduct of the parties which by: 2°
the express terms of the statute is to be taken into.account
by the Court in determining what it thinks reasonable. It—
may very well be that when the facts come to be investigated,
the Court will say that a sum of this magnitude, so secured,
voluntarily accepted as a sufficient maintenance ten years
ago, and faithfully paid ever since, is a sufficient provision,
and that the Court will not deem it to be reasonable to order
any further payment to be made: this is not the question
which your Lordships are considering. The only question
which the order appealed against determines is that the
existence of the covenant in the deed of separation does not
preclude the wife from making an application to the Court ; |
this by no means implies that, when the application is made,
the existence of the deed or its terms are not most relevant
factors for consideration by the Court in reaching a decision.

Your Lordships will observe that I have, so far, based my
opinion on the language of the statute without reference to
any reported decisions; but counsel for the appellant called
your Lordships' attention to several cases, and it is necessary
now to examine those cases and to see whether the view which
I have formed upon the language of the statute must be
modified in the light of those decisions.
' A large number of authorities was brought to the attention
of your Lordships, most of which are discussed in the very
exhaustive judgments in the Court of Appeal; but there
are three cases which require particular attention—namely,
Morrall v. Morrall (1); Gandy v. Gandy (2); and Bishop v.
Bishop. (3)

In Morrall v. Morrall (1) a wife by a deed of separation
had agreed to accept certain sums as provision for her support,

(1) 6 P. D. 98, 100 (2) 7 P. D. 168, 172, 174, 175.
(3) [1897] P. 138.

610

H. L. (E.)
1929
HyMan
v.
Hyman.

Lord Hailsham
L.C.

HOUSE OF LORDS [1929]

and had covenanted not to commence or prosecute any suit
or other proceeding for compelling her husband to allow her
any support, maintenance or alimony whatsoever, except the
sum stipulated in the deed. At a subsequent date the wife
discovered that her husband had been guilty of incestuous
adultery, and obtained a decree for the dissolution of the
marriage. The President, Sir James Hannen, held that not-
withstanding the deed she was entitled to the usual order
for permanent maintenance. The learned President says in
his judgment: '' When she has established that her husband
has been guilty of incestuous adultery, a state of things arises
not in contemplation when the deed was executed, and the
wife is not restrained by the deed. Circumstances now
justify her in bringing a suit for dissolution of marriage, and
she is entitled to all the incidents of that suit, and amongst
them an allowance based upon her husband's actual income."

In the case of Gandy v. Gandy (1) a wife and a husband
had executed a separation deed by which the husband agreed
to allow to the wife 250/. a year and to maintain the two
youngest children, who were not given into her custody, and
the wife covenanted not to take any proceedings to compel
the husband to allow her any larger amount of alimony.
Subsequently the husband committed adultery, and the wife
obtained a decree for judicial | separation and an order for the
custody of the two youngest children. The wife applied for
alimony, and the President (following an earlier decision of
his own) held that she was entitled to an inquiry as to the
husband's means, and that she was not precluded by her
covenant from making the application. The husband appealed
to the Court of Appeal, and the Court of Appeal reversed
the President's decision. Sir George Jessel said that in his
view the Court could not interfere with such a contract
except when one of the parties to the contract had so acted
as to disentitle him to rely upon the contract at all, and that
the subsequent misconduct of the husband did not entitle
the wife to repudiate the contract into which she had entered,
which was therefore still binding. Cotton L.J. said that in

(1) 7P. D. 168, 172, 174, 175.

A. C. AND PRIVY COUNCIL.

his opinion the conduct of the husband since the deed was
not such as, having regard to what was known to the wife
at the time she entered into the deed, to disentitle him from
relying on the deed. The learned Lord Justice goes on to
deal with the case of Morrall (1), and he distinguishes it in
this way: "There, there was a deed of separation with a
provision as to what maintenance the wife was to have. She
subsequently ascertained that the husband was living in
incestuous adultery. It may well be that such gross mis-
conduct, misconduct of a nature so entirely different from
that which the parties were providing for when they entered
into the deed of separation, might prevent the husband from
in any way relying on that deed, and might render it just
that the bargain made by the wife for maintenance should be
disregarded on an application to the Court for alimony. Here,
in my opinion, the circumstances are not such as to entitle
the wife to disregard her bargain." Lindley LJ. says:
" This being only a suit for judicial separation, the power of
the Divorce Court over these deeds is much less than it would
be after a decree for dissolution of marriage. It is a much
more restricted jurisdiction and power, and it appears to me
that the cases, of which Morrall v. Morrall (1) is one, where
the Divorce Court has dealt with separation deeds after
decrees for dissolution of marriage, are rather misleading,
when they are applied, or sought to be applied, in a case where
the Court has no such extensive jurisdiction."

In Bishop v. Bishop (2) the facts were that by an agreement
for separation made between husband and wife on the with-
drawal of the wife's petition for divorce, the wife agreed to
accept from the husband a specified sum for maintenance to be
paid in any event, whether the marriage should thereafter
be dissolved or not. The agreement contained no express
stipulation not to petition for permanent maintenance. The
wife brought a fresh petition for divorce, based on the mis-
conduct of the husband after the date of the agreement, and
obtained a decree. She thereupon filed a petition for per-
manent maintenance, and the husband set up the agreement

(1) 6P. D. 98. (2) [1897] P. 138, 162, 163, 164.

61)

H. L. (E.)
1929
a

Hyman
v.
HYMAN.
Lord Hailsham

L.c,

612 HOUSE OF LORDS [1929]

H.L.(E.) asa bar. Sir Francis Jeune, the President, held that the
1929 agreement was not a bar to the petition, and his judgment

I

Hyman was upheld in the Court of Appeal. The judgment of the
Hywan, Court of Appeal was delivered by Lindley L.J., and the case
Lord Hailsham OL Gandy v. Gandy (1) was carefully examined and distin-
part guished. The learned Lord Justice points out that in that
case "nothing was decided respecting any of the statutory
powers of the Divorce Court in suits for dissolution of
marriage." And again he says: "The case being one of
dissolution of marriage, and not of judicial separation,
Gandy v. Gandy (1) is not in point, except in so far as it
negatives any implied condition of continued chastity. The
present case must turn on the power of the Divorce Court on
a dissolution of marriage to compel a husband to provide for
his divorced wife, and to make orders for the maintenance
and education of the children,' and after referring to the
statute, he says: "As regards permanent maintenance, s. 32
of the Act of 1857" (which is now reproduced in s. 190,
sub-s. 1, of the Act of 1925) "'is very wide indeed, and it
would not be right for this or any Court to put a narrow
construction upon it, or to fetter in any way the Court or
judge intrusted with its application in cases of divorce. The
section says that regard is to be had to the wife's fortune, to
the ability of the husband, and to the conduct of the parties.
The appellant contends that all these matters are to be
disregarded, and attention is only to be paid to the terms
of the separation deed. This cannot be right." And again
lower down on the page: " We are not aware of any authority
since the Divorce Act which shows that a covenant by a
husband or wife not to sue the other for a divorce grounded
on future misconduct is valid, and we doubt whether an
express covenant not to sue for increased alimony in the event
of such a divorce could be recognized. There is no express
covenant to that effect in the present case; and a covenant
of such very questionable validity certainly cannot be implied.
In other words, the wife cannot be held to have precluded
herself by her agreement from invoking the aid of the Court

(1) 7 P. D. 168.

A. C. AND PRIVY COUNCIL.

to obtain further maintenance in the events which have
happened."

Your Lordships will have noticed that the decisions in
Morrall (1) and in Bishop (2), so far as they are relevant,
tend to confirm the opinion which I had formed from the
language of the statute, and to support the view that a cove-
nant not to invoke the jurisdiction of the Court to order
permanent maintenance in a suit for dissolution of marriage
is not a bar to such an application being made. But counsel
for the appellant relied strongly upon the case of Gandy v.
Gandy. (3) He argued that the Court of Appeal in Gandy v.
Gandy was mistaken in supposing that the jurisdiction of
the Court in suits for judicial separation was less than it would
be after a decree for dissolution of marriage. He urged that
the considerations which are expressed in sub-s. 1 of s. 190
as matters to be taken into account by the Court are the
very matters which it had been the established practice of
the Ecclesiastical Courts to take into account in awarding
alimony in suits for judicial separation; he said that there
was no difference in meaning between what the Court '' deems
reasonable " in sub-s. 1, and what the Court " thinks just "
in sub-s. 4. He pointed out that although Gandy v. Gandy (3)
had subsequently been considered in another suit between the
same parties (4), there was nothing in the second decision to
shake the authority of the first, and he said that the principle
of the first decision was inconsistent with the decision in the
present case, and therefore that the present appeal ought to
succeed.

I confess that the argument so presented appeared to me
a very formidable one. Your Lordships did not think it
necessary to call upon counsel for the respondent; and it
may be that there are distinctions between Gandy v. Gandy (3)
'and the present case to which our attention has not been
directed, and that the fact that in Gandy v. Gandy (3) the
Court had only decreed judicial separation, whereas in the
present case it had dissolved the marriage altogether, may

(1) 6P. D. 98. (3) 7 P. D. 168.
(2) [1897] P. 138. (4) 30 Ch. D. 57.

613

H. L. (E.)
1929

—
HyMAn
ve.
HYMAN.
Lord Hailsham
L.C.

&

614 HOUSE OF LORDS [1929}

H.L.(E.) make such a difference in principle as to render the two cases
1929 distinguishable. But if the two cases cannot be distinguished
Hyman then in my opinion the result is that Gandy v. Gandy (1)
'et must be held to have been wrongly decided. However this
Lord Hailsham May be, it is sufficient for the decision of the present case to
pai hold, as I do, that the power of the Court to make provision

for a wife on the dissolution of her marriage is a necessary

incident of the power to decree such a dissolution, conferred

not merely in the interests of the wife, but of the public, and

that the wife cannot by her own covenant preclude herself

from invoking the jurisdiction of the Court or preclude the

Court from the exercise of that jurisdiction. In my opinion
this appeal fails and should be dismissed with costs, and I
move your Lordships accordingly.

Viscount DunepiIn: My Lords, I have come to the same
conclusion. I have had the advantage of seeing the opinion
which will presently be delivered by my noble and learned
friend Lord Buckmaster, and I concur with it.

Lorp SHaw or DUNFERMLINE. My Lords, the parties to
this case were married on September 14, 1912. There are no
children of the marriage. On September 20, 1919, they exe-
cuted a deed of voluntary separation. By that deed the husband
covenanted for himself, his executors and his administrators
to pay to his wife certain sums down and a further sum of
201. per week during her life. It was by this deed of separa-
tion provided that: " Neither the wife the said May Hyman,
nor any person on her behalf, shall at any time hereafter molest
or disturb the said Maurice Percy Hyman by any means,
either by taking out citation or process or instituting any
action in England or elsewhere or in any other manner compel
the said Maurice Percy Hyman to cohabit with her or
endeavour to enforce any Order for restitution of conjugal
rights, or to compel the said Maurice Perey Hyman to allow
her any alimony or maintenance further than the said weekly
sum of 20]. and the aforesaid sums of 2001. and 2000I."

(1) 7P. D. 168.

A.C. AND PRIVY COUNCIL.

On January 11, 1926, the wife petitioned for a divorce on
the ground of her husband's adultery, and she obtained a
decree nisi on January 25, 1927, which was made absolute
on February 27, 1928.

The question in the case is whether the covenant by the
wife not to take proceedings to compel her husband to allow
her any alimony or maintenance beyond the amount stipu-
lated in the deed is still binding upon the wife after she has
obtained a decree for divorce. Conversely put, the question
is whether it is still open to her to petition for maintenance
under s. 190 of the Supreme Court of Judicature (Consolida-
tion) Act, 1925. By that Act, s. 190, it is provided that:
"The court may, if it thinks fit, on any decree for divorce
or nullity of marriage, order that the husband shall, to the
satisfaction of the court, secure to the wife such gross sum
of money or 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, the court
may deem to be reasonable. . .. . " As showing the range
and scope of the duties vested in the Court, it may be
expedient to quote certain further provisions of the Act.
Sect. 192 is as follows: "' The court may after pronouncing
a decree for divorce or for nullity of marriage enquire into
the existence of ante-nuptial or post-nuptial settlements
made on the parties whose marriage is the subject of the
decree, and may make such orders with reference to the
application of the whole or any part of the property settled
either for the benefit of the children of the marriage or of
the parties to the marriage, as the court thinks fit, and the
court may exercise the powers conferred by this sub-section
notwithstanding that there are no children of the marriage." —

The Court is further vested with power to vary orders.
By s. 196 it is provided that: "'The court may from time
to time vary or modify any order for the periodical payment
of money made under the provisions of this Act relating to
matrimonial causes and matters either by altering the times
of payment or by increasing or diminishing the amount, or
may temporarily suspend the order as to the whole or any

615

H. L. (E.)
1929
"—

HyMAn
v.
HYMAN.

Lord Shaw

of

Dunfermline.

Lord Shaw
of
Dunfermline.

HOUSE OF LORDS [1929]

part of the money ordered to be paid, and subsequently
revive it wholly or in part, as the court thinks just."

Had the arguments in this case not roamed very wide, it
would have been needless to observe that this is not a case as
to judicial separation, or any application for alimony following
therefrom, or as to restitution of conjugal rights ; it is simply
an application for alimony following a dissolution of the
marriage by divorce. In various cases much argument has
been had as to the rights of an applicant for judicial separa-
tion who was already under contract of voluntary separation.
That is not the situation of the respondent in the present
case, which is different, and has been over and over again
distinguished by the Courts from, a case of an application
following divorce.

The substance of the statutory provisions cited from the
Judicature Act of 1925 had already appeared in previous
statutes. The language of the earlier portion of s. 190 is a
repetition of s. 32 of the Matrimonial Causes Act, 1857. No
further tracing of the legislative history is necessary. The
power given to the Court depends fundamentally on the
language of s. 190 of the Act of 1925.

I am humbly of the opinion that the Court granting divorce
is charged, and charged fully, under that section with the power
of settling the allowance to the wife, and that it is not
precluded from discharging that duty by the existence of
the provisions of a voluntary deed of separation between
the parties.

Upon that subject I am in entire agreement with the judg-
ment of my noble and learned friend on the Woolsack. The
ruling provision—s. 190 above quoted—empowers the Court,
if it thinks fit, "on any decree for divorce or nullity of
marriage '' to make an order securing to the wife such a gross
annual sum of money not exceeding her life, as having regard
(1.) to her fortune, if any, (2.) to the ability of her husband,
and (3.) to the conduct of the parties the Court may deem
reasonable. Not only is the power given to the Court, but
the scope of the power and the considerations which are to be
taken into account when it is exercised are set out by statute.

A. C. AND PRIVY COUNCIL.

I do not think it to be competent for us to limit or restrict
that power which is thus given unambiguously and defi-
nitely. Nor is it legitimate for a Court of law to be swayed
from such a construction by a consideration of authorities
applicable to previous legislation, although that legislation
was in similar terms. In short this is the simple case—over
and over again affirmed by this House—that the statute must
be taken to mean what it says, and that there is much danger
in allowing invasion of its terms followed by subsequent
invasions succeeding the first until the virtue of the statute
is emasculated.

It seems, however, to be impossible to avoid the wider
discussion which took place in the course of the able and
careful argument for the appellant and upon which the
dissentient judgments in the Court of Appeal were founded.

I have had the advantage and pleasure of perusing the
opinion of the Lord Chancellor, and I may say that I am at
one with him in his analysis of the authorities—so much so
that I think it unnecessary, in view of his pronouncement,
to trouble the House with a judgment which I had prepared
upon that subject. It may be, however, that our views do

not exactly coincide as to Gandy v. Gandy (1), and in that

situation, my Lords, I am venturing to deal particularly with
that case and also with the underlying principle applicable
to the whole situation.

I do not conceal from your Lordships that I think the
judgment of the Court of Appeal in the first case of Gandy (1)

617

H. L. (E.)
1929

Lord eld
0
Dunfermlino>.

was—I say so quite boldly—an erroneous judgment. It was *

contrary to that of Sir James Hannen, whose decision appears
to me to be upon the authorities which he cited and upon
principle essentially sound. I will quote one or two sentences
from that judgment which appear to me to have expressed
the law of England with accuracy at the time they were
spoken, and undoubtedly to express the law of England
to-day.

Gandy (1) was a case in which a voluntary separation under
agreement had been made by the married parties, and

(1) 7 P. D. 168.

618 HOUSE OF LORDS [1929]

H.L.(E.) thereafter the wife obtained a decree for judicial separation in
1929 consequence of the husband's adulterous misconduct. It was
Hyman not acase like the present, where in respect of that misconduct
Hyman, divorce had been obtained. Probably enough the mis-
Lord Shaw conduct was not accompanied with cruelty, and so the right

Dunfermline, to sue for such a remedy at that date was not in the wife.
ye That difference—between applications for alimony in
divorce cases and in separation cases—was over and over
again noted by the judges of the Court of Appeal themselves
in. Gandy (1), but Gandy has always somehow played a
formidable part in the discussions as to alimony even in
divorce cases. The reason for that has, so to speak, been
brought up to date and forcibly stated by Lawrence L.J. in

his dissent in the present case. He says (2) :—

"The conclusions of the Court of Appeal in the first case
of Gandy v. Gandy (1), therefore, may be summarized as
follows: that a wife's covenant not to endeavour to compel
the husband to allow her any further alimony or maintenance
is a valid covenant binding on her; that no dum casta clause
will be implied in a separation deed, and consequently that
the husband can enforce the covenant notwithstanding his
subsequent adultery, which does not amount to such gross
misconduct on his part as to disentitle him to relief in a Court
of equity ; and that the fact that the wife has obtained a
decree for judicial separation with the result that the spouses
are no longer living apart by agreement but by the decree of
the Court upon the making of which the Court has a statutory
power to make such order for alimony as it thinks just, affords
no ground for enabling the Court to disregard the wife's
covenant," and he adds: "In my judgment these con-
clusions and the reasons upon which they are founded apply
just as much to a case like the present, where the wife has
obtained a decree for divorce, as they do to the case where
the wife has obtained a decree for judicial separation."'

This appears to make the way of error luminous. Gandy (1)
is assumed to be sound, and not only sound, but to have such
soundness and fundamental principle as to enable it to be

GU) 7h Jes ID Ue. (2) [1929] P. 55.

A. C. AND PRIVY COUNCIL.

quoted effectively not in a separation case but in a divorce

case, and with the result that it contracts parties to a divorce ©

case out of the provisions of an Act of Parliament, and
impedes and cripples the power of Courts of law in settling
alimony in such cases upon the grounds comprehensively and
definitely set forth by statute. In my opinion the whole of
this reasoning is a mistake.

But I think it right to begin at the beginning by saying
that I do not think that Gandy's case (1) was rightly decided.
I am of opinion that the decision was wrong, and I am
pretty well assured in that opinion by the course of
subsequent English decisions.

Sir James Hannen, President of the Probate Court, declined
to accept the argument, even in a separation case, that a
married person was bound by a voluntary contract from
asking a judicial remedy both of separation and of allowance
of alimony. Quoting from his own judgment in Benyon v.
Benyon (2), he says it would be an evil example and morally
dangerous if the wife's pecuniary position could not be altered by
reason of her adultery subsequent to her husband's acceptance
of an allowance. "In this changed condition of things," he
says (3), "I think the husband is entitled to ask for a larger
allowance than he agreed to accept at the time of the
separation." He then refers to Morrall v. Morrall (4), to
which he adheres, Morrall being a case in which a decree
of the dissolution of the marriage had been pronounced.
Thereupon he adds these sentences :—

"It was argued that these cases are not applicable, because
in each of them the marriage of the parties was dissolved,
and thus a change of their status was effected. But if the
reasons on which my judgment in those cases rests are well
founded, I am of opinion that they are equally applicable
where the wife has become entitled to a decree of judicial
separation." He adds: " After much consideration, I remain
of opinion that to adopt the opposite conclusion would not
only be to make the general words of the contract extend to

(1) 7P. D. 168. (3) 7 P. D. 77, 81, 82.
(2) 1P. D. 447. (4) 6P. D. 98.

61¢

.H. L. (E.)

1929
—_
HyMAN
v.
HyMAn.
Lord Shaw
of

Dunfermline.

620

H. L. (E.)
1929
—_—
HyMan
v.
HYMAN.
Lord Shaw

Ce)
Dunfermline.

HOUSE OF LORDS [1929]

a state of things not in the contemplation of the parties, but
would lead to results in a high degree prejudicial to morality,
it would be, in fact, to hold that a husband who has entered
into an agreement with his wife to live apart, making her a
certain allowance, obtains thereby a licence to commit adultery
for the rest of his life without subjecting himself to any
liabilities beyond those imposed by the deed.' And he
concludes: '' It appears to me that in all cases such as this
it is implied in the contract contained in the deed that it
has reference only to the parties living separated, without
more, and not to their living apart in a state of adultery."

As will be seen presently, I go further, and hold that the
words in this opinion which suggest the possible idea that the
parties were openly consenting in their voluntary deed to a
known life of adultery being continued is no argument in
defeat of the principle of rejecting such a deed as a bar to the
performance of its statutory duties by the Court. I think,
on the other hand, that the deed so proponed as expressive
of such knowledge and consent, is more subject to objection
and repudiation than the other. I shall recur to that topic
presently.

The gist of the Court of Appeal's decision of the first
Gandy case (1) is plainly stated by Sir George Jessel M.R. :
"In the case of dissolution of marriage the Court has had
conferred upon it the right to vary not only post-nuptial
but ante-nuptial settlements, and to deal with them in any
way which may be thought just and expedient. But in the
case of judicial separation, there being no such power, the
deed remains binding. The wife is entitled to the annuity
secured her by the deed, the husband is liable to pay the
annuity. . 2. . Why should the Court interfere with the
contract ? I see that the learned judge put it on the ground
of public policy. I have explained more than once, and
especially in a case which has been referred to by the learned
judge himself of Besant v. Wood (2), that there is no reason
more dangerous to give, and no reason on which such difference
of opinion exists, as public policy. He has said: 'If you do

(1) 7P. D. 168, 172. (2) (1879) 12 Ch. D. 605.

A.C. AND PRIVY COUNCIL.

not allow the wife to ask for increased alimony in such a
case as this you allow the husband to commit adultery with
impunity.' I am by no means prepared to say that this
remark is correct. It is not impunity merely because he is
not obliged to pay more money. I do not consider that
payment of alimony is the only punishment for adultery if
the word ' punishment' should be used in connection with
ibs It appears to me a very strong thing to say that by
his committing an act which does not affect the wife either
directly or indirectly her rights to participate in his fortune
should be altered..... It seems to me that, having regard
to the relative positions of the husband and wife, there has
not been misconduct on the part of the husband so affecting
the position of the wife as to entitle her to repudiate the
contract she entered into, therefore the contract is still
binding and the appeal must be allowed." My Lords, I
respectfully disagree with such doctrine. The wife in the
case figured cannot legitimately be treated as merely
repudiating the voluntary contract of separation. The
violator of the essence of such contract, the true repudiator,
was the husband himself, and it is the wife's position to found
upon his conduct amounting to such repudiation. There are
two ways of it. The contract either contemplated, or it
did not, adulterous conduct subsequent to its date. If it
did not, such conduct not in contemplation and not provided
for opens legitimately and effectively the attack upon the
continuance of the contract as mutually binding. If, how-
ever, it did contemplate such misconduct, and this whether
expressly or by implication, then, in my opinion, it was a
contract immoral in its nature, opposed to the fundamental
sanctity of marriage and contrary to the law of England.
It was a species of condonation ab ante.

Such a condonation is unknown to the law. Were it
supported, it would be equivalent not to condonation ;
condonation is of the past. It would be equivalent to an
indulgence for the future—an indulgence obtained or purchased
for mutual convenience or for money—that the marriage tie
should be maintained and yet its obligations defied.

A. C. 1929. 3 2U

621

H. L. (E.)
1929

—
HyMan
v.
HYMAN.
Lord Shaw
of

Dunfermline.

622

H. L. (E.)

Lord Shaw

te)
Dunfermline.

HOUSE OF LORDS [1929]

This indulgence is claimed in the name of the sanctity
of contract. But in my opinion the law of England would
not uphold the sanctity of any contract the plain object
and effect of which is to undermine the sanctity of marriage,
for this would be contrary to and subversive of one of
the fundamental elements upon, which society itself is
based. Gandy (1) has been a confusing and troublesome
decision, and it has been roughly handled by the Courts,
and such weight as it ever had has, in my opinion, long
been lost. I refer in particular to Bishop v. Bishop (2)
and Judkins v. Judkins (2), both of which are rightly and
highly approved by the majority judges below, and I note
with respectful agreement the review of the cases in the
judgment by the Master of the Rolls. In the judgment in
Hughes v. Hughes (3) Lord Merrivale puts the point alluded
to above thus: "'No doubt an express undertaking by a
wife, in this country, that she would not sue her husband for
maintenance if he should be guilty of adultery would be held
to taint with immorality a contract of which it should be
found to have formed part." I agree with that, and Lord
Merrivale would no doubt assent to the view, which I think
also sound, that this would apply whether the undertaking
was expressed or was inferred by implication.

The true principle is that whenever the aid of a Court is
invoked to grant a judicial allowance and there is presented
to it an agreement as in bar of the exercise of the right or
the discharge of the duty under statute then the Court is
bound to look at such an agreement and to decline to be
turned from the performance of its judicial duty or the
exercise of its judicial rights when the agreement so tabled
is of a nature repugnant to and defiant of those obligations
which are inherent in the sanctity of marriage itself. To
hold otherwise would bring the law into confusion and Courts
into contempt, for, as already indicated, it would be using
Courts of law for purposes essentially subversive of society.

It will be seen, my Lords, that the principle, so put, applies

(1) 7 P. D. 168. (2) [1897] P. 138.
(3) [1929] P. 1, 10.

A. C. 'AND PRIVY COUNCIL.

all round, that is to say, not only to applications for alimony
in cases of divorce but in those also of judicial separation.
The authors of the Gandy doctrine themselves confined it to
the latter and disclaimed its application to the former. Yet
here it is again—and in a divorce case application. I will
not further dwell upon the merits of Gandy: it had none.
Nor could I be even now sure of its final disappearance. For
nothing will apparently avail—not the judgment of this
House, not even the words of an Act of Parliament—to stay
the spade of the legal resurrectionist.

Lorp BuckmastTEeR. My Lords, the facts in this case are
plain, and need no repetition. The judgment appealed from
can be supported on either one of three independent grounds :—

(1.) That the covenant by the respondent in clause 3 of
the deed not to take steps to compel the appellant to allow
her any "alimony or maintenance " beyond the covenanted
sums did not apply to her rights arising on divorce.

(2.) That the covenant if applicable to divorce was void
in law as contrary to public policy.

(3.) That it was impossible by covenant to exclude the
statutory rights in favour of the wife arising on divorce.

The first of these points is special to this case, and a decision
resting upon it alone would leave the general and important
question untouched. None the less I think it well to say
that in my opinion the respondent's contention upon it is
right. At the date of the deed, after the separation of the
parties, previous cruelty not being suggested, divorce was at
the wife's instance impossible, except upon grounds which,
apart from bigamy, are so revolting and fortunately so rare
that it may be safely assumed they were outside the considera-
tion of the parties. At the date of the deed, therefore, so
far as the wife's position was concerned, the only contem-
plated dissolution of the marriage was by death. It would,
therefore, be indeed an astonishing thing if the wife's
covenant were to be construed as relating to a set of cir-
cumstances that no one thought would arise. Nor is there
anything in the covenant that could properly apply to a

A. C. 1929 3 2X

623

H. L. (E.)
1929
HYMAN
v.
HyYyMANn.
Lord chew

Co)
Dunfermline.

624

H. L. (E.)

1929
~~
HyMan
vw.
HYMAN.
Lord
Buckmaster.

HOUSE OF LORDS [1929]

condition of divorce except the two words 'alimony"' or
''maintenance," which strictly refer to the names used in the
statute for the allowance made to a woman, as to alimony
while the marriage tie continues, and as to maintenance when
it is unloosed. To my mind this fact is wholly insufficient
to displace the considerations to which I have called attention.
If this clause was intended to operate on (a) The husband
committing bestiality, bigamy, rape, sodomy or incest—the
only grounds on which the wife could, after separation, obtain
divorce—or (b) An enlightened Legislature at an unknown
future date enabling a woman to obtain divorce on the ground
of adultery alone, it was in my opinion necessary that it
should be plainly expressed by words or irresistible inference,
and this the deed has wholly failed to do—the phrase " alimony
or maintenance "' is, in my opinion, a legal pleonasm rather
than a legal exactitude. On the first point, therefore, I
think the appeal fails.

The second case is more difficult. The case of Gandy v.
Gandy (1) is a clear authority for the proposition that
provisions in a deed framed so as to operate after the
commission of adultery are not ipso facto void. It is
unnecessary to examine this authority, but I think this
doctrine must be very narrowly confined. A deed based
upon a contemplated adultery would, I apprehend, be
certainly bad, and so also would be a deed so framed as
upon its face to show that adultery would bring a positive
advantage to the wrongdoer.

It is not in my opinion necessary to proceed further and
examine if Gandy v. Gandy (1) is good law, since I agree with
the view expressed by Lindley L.J. in Bishop v. Bishop (2), in
a passage already quoted, and I should hesitate a long time
before I differed from a considered opinion expressed by that
learned judge, but in this case hesitation is unnecessary.

In 1857 divorce was for the first time placed within the
jurisdiction of the Courts. Before that date it was only
obtainable by Act of Parliament, and in such Act it was
competent to introduce whatever provisions Parliament

(1) 7 P. D. 168. (2) [1897] P. 138, 163.

A. C. AND PRIVY COUNCIL.

thought fit for protecting or penalising either party. Divorce
wholly differs from any form of separation. Judicial separa-
tion, which has been the subject of much learned and weighty
censure, is nothing but enforcing through an order of the
Court an arrangement which the parties could—were they
willing—equally effect for themselves; it merely makes in
the form and with the force of a decree an arrangement for
the parties to live apart, but divorce destroys the whole
relationship, and only by remarriage can it be restored. It
is, In my opinion, associated with and inseparable from the
power to grant this change of status that the Courts have
authority to decree maintenance for the wife. And in the
exercise of this authority they are in no way bound by the
contracts made between the parties though, as pointed out
by the Lord Chancellor, the consideration of all contractual
rights possessed by the wife must be borne in mind.

Lorp Atkin. My Lords, it is unnecessary to recapitulate
the facts. We have to deal with a separation deed, a class
of document which has had a chequered career at law. Not
recognized by the Ecclesiastical Courts, such contracts were
enforced by the common law. Equity at first frowned.
Lord-Eldon doubted but enforced them: cf. St. John v.
St. John (1) and Bateman v. Countess of Ross (2); and see
the arguments of Sir Fitzroy Kelly and Mr. Turner and of
Mr. Bethell in Wilson v. Wilson. (3) Finally they were fully
recognized in equity by Lord Westbury's leading judgment
in Hunt v. Hunt (4), in which he followed Lord Cottenham's
decision in Wilson v. Wilson (3), where his argument for the
respondent had prevailed. Full effect has therefore to be
given in all Courts to these contracts as to all other contracts.
It seems not out of place to make this obvious reflection,
for a perusal of some of the cases in the matrimonial Courts
seems to suggest that at times they are still looked at askance,
and enforced grudgingly. But there is no caste in contracts.
Agreements for separation are formed, construed and dissolved

(1) (1803) 11 Ves. 525, 529. (3) 1H. L. ©. 538, 550-553,
(2) (1813) 1 Dow 235. 564, 565,
(4) (1861) 4D. F. & J. 221.
3 2X2

625

H. L. (E.)
1929

——

HymMan
v
HYMAN.

Lord
Buckmaster.

VU.
HyMAN

Lord Atkin.

HOUSE OF LORDS [1929]

and to be enforced on precisely the same principles as any
respectable commercial agreement, of whose nature indeed
they sometimes partake. As in other contracts stipulations
will not be enforced which are illegal either as being opposed
to positive law or public policy. But this is a common
attribute of all contracts, though we may recognize that the
subject-matter of separation agreements may bring them more
than others into relation with questions of public policy.

Endeavouring therefore to apply the ordinary law of
contract to the agreement in question, as at present advised
I should find it difficult to agree with the view that has found
favour with some of the learned judges below, that on the
true construction of the contract it is only intended to
operate during the joint matrimonial life of the parties, so
that its provisions terminate on divorce. This construction
appears to be untenable in view of the fact that the husband's
covenant for payment expressly binds his executors, and
necessarily and no doubt intentionally operates after his
death during the life of the widow. I may add that this
separation deed appears to be in an usual form ; and it would
be an unfortunate result if this House had been compelled
to come to the conclusion that agreements so drawn ceased
to operate on dissolution of marriage. There must be many
cases of wives who have obtained divorces who still draw
the separation allowance who would find it difficult or
impossible now to obtain a maintenance order for the same
or any amount. It would also in the case of such deeds
be impossible to obtain any variation of them as marriage
settlements, for they would have ceased to operate with the
dissolution of the marriage. The practice has been to regard
them for this purpose as continuing after the divorce: see
Worsley v. Worsley (1), though no doubt in that case there
were express provisions that the deed should continue to
operate after the death of the husband.

I have also difficulty in accepting the view which found
favour with other of the learned judges below, that the agree-
ment was dissolved by what is now known as " frustration."

(1) (1869) L. R. 1 P. & M. 648.

A. C. AND PRIVY COUNCIL.

627

I am in some doubt as to the event which is said to produce 4. L. (E.)

this result—whether it is the passing of the Matrimonial
Causes Act, 1923, or the commission by the husband of
adultery since the passing of the Act or the decree absolute

1929
HyMAn

Vv.
Hyman.

which dissolved the marriage. If the last, then a subsequent ,,,4 atuin.

divorce would dissolve and have dissolved all separation
deeds, whether before or after the Matrimonial Causes Act,
whether the parties so desired or not. I cannot myself think
that the event of divorce is something so unforeseen, or the
continuance of the marriage tie so essentially a condition
of the contract that the dissolution of the marriage can
properly be treated as automatically dissolving the provisions
for paying the allowance. I find myself the less able to
believe that the law should now impute this implied condition
to the parties, or impose it on the contract, whichever be the
correct formula, when I find that fifty-four years ago, in
Charlesworth v. Holt (1), the Court of Exchequer held the
contrary ; and that separation deeds must have been drawn
on this footing ever since. For myself I am satisfied that the
words of the wife's covenant not to compel an allowance of
further alimony or maintenance indicate that the parties'
advisers had the possibility of divorce in their minds, the
two words being especially appropriate to judicial separation
on the one hand and divorce on the other. And on this
point Worsley v. Worsley (2), to which I have referred above,
is a relevant authority.

If on the other hand the frustration is confined to this
particular case and the unforeseen event of the passing of
the Act of 1923, I cannot think that this alteration of the
law can have the destructive effect on the contract which is
suggested. All that the Act did was to enable the wife to
obtain a dissolution for simple adultery, which before she could
only obtain for adultery together with some additional fact.
But before the Act and during the separation deed the
existing law provided grounds for divorce which might have
resulted had the facts been so in a dissolution of this marriage,
incestuous adultery, bigamy, adultery with cruelty, and indeed

(1) L. R. 9 Ex. 38. (2) L. R. 1 P. & M. 648.

628

H. L. (E.)
1929

~_

Hyman
v.

Hyman.

Lord Atkin.

HOUSE OF LORDS [1929]

all the other grounds other than adultery with desertion. It
seems to me unreasonable to think that the separation deed
remained operative if effect was given to the existing law,
but that the basis of the contract fell away if divorce became
easier, some of the grounds still remaining the same. The
change in the law did not make the performance of the
contract either impossible or more difficult. Indeed it did
not necessarily affect it at all.

In view of the effect of the doctrine of frustration in the
automatic destruction of contracts in spite of the will of the
parties, and of the caution which is required before applying
still more before extending the doctrine, I should be reluctant
to decide this case against the respondent on this ground,
though as we have not heard the respondent I do not express
a final opinion upon it.

a | think, however, that the wife is entitled to succeed upon
another ground. Her marriage has been finally dissolved
upon her petition. The Legislature has invested the matri-
monial Courts in such a case with powers to make such
provision for the future maintenance of the wife as the Court
may think reasonable. Some powers were given by the
Matrimonial Causes Act of 1857. They have been extended
by the Acts of 1866 and 1907, and are now contained in
ss. 190-192 of the Judicature Act of 1925. The necessity
for such provisions is obvious. While the marriage tie exists
the husband is under a legal obligation to maintain his wife.
The duty can be enforced by the wife, who can pledge his
credit for necessaries as an agent of necessity, if, while she
lives apart from him with his consent, he either fails to pay
her an agreed allowance or fails to make her any allowance
at all; or, if she lives apart from him under a decree for
separation, he fails to pay the alimony ordered by the Court.
But the duty of the husband is also a public obligation, and
can be enforced against him by the State under the Vagrancy
Acts and under the Poor Relief Acts. When the marriage
is dissolved the duty to maintain arising out of the marriage
tie disappears. In the absence of any statutory enactment
the former wife would be left without any provision for her

A. C. AND PRIVY COUNCIL.

629

maintenance other than recourse to the poor law authorities. H. L. (E.)

In my opinion the statutory powers of the Court to which
I have referred were granted partly in the public interest
to provide a substitute for this husband's duty of maintenance
and to prevent the wife from being thrown upon the public
for support. If this be true, the powers of the Court in this
respect cannot be restricted by the private agreement of the
parties. 'Quilibet potest renunciare juri pro se introducto."'
"T beg attention to the words ' pro se,' "' says Lord Westbury
in Hunt v. Hunt (1), "because they have been introduced
into the maxim to show that no man can renounce a
right of which his duty to the public and the claims of
society forbid the renunciation." To apply another maxim,
**Privatorum conventio juri publico non derogat." In my
view no agreement between the spouses can prevent the Court
from considering the question whether in the circumstances
of the particular case it shall think fit to order the husband
to make some reasonable payment to the wife, " having
regard to her fortune, if any, to the ability of her husband
and to the conduct of the parties.' The wife's right to
future maintenance is a matter of public concern, which she
cannot barter away. 'This is not to say that in any particular
case the Court must make an order; still less that in this
case it must do so. I could well understand the Court coming
to the conclusion that the parties' pre-estimate of the wife's
reasonable needs was judicious, and that the allowance, con-
tinuing as it does after the husband's decease, and being
independent of any fluctations in the amount of his fortune,
needed no supplement. But the present objection of the
husband to the Court considering the matter at all in my
opinion cannot prevail.

In argument the case of Gandy v. Gandy (2) was pressed
upon us as an authority of the Court of Appeal upholding
the validity of a covenant in similar terms in a case where
the wife had obtained a decree for judicial separation. In
that case the argument against the validity of the cove-
nant seems to have proceeded on the grounds accepted by

(1) 4D. F. & J. 221, 233. (2) 7 P. D. 168.

1929
HyMAN
v.
Hyman.
Lord Atkin.

630

H. L. (F.)
1929

HyMan
v.
Hyman.

Lord Atkin.

HOUSE OF LORDS [1929]

Sir James Hannen, that the deed was subject to an implied
condition that neither party should commit adultery: or
that the conduct of the husband in committing adultery was
a repudiation of the deed which the wife could accept: or
that, if this were not so, the deed was a licence to commit
adultery, and so would be void as being against public policy.
The Court of Appeal in my judgment rightly rejected all
these contentions. The particular ground that the wife could
not make a valid agreement to prevent the Court from —
considering a claim for future alimony on the ground that she
might thereby be depriving herself of any support does not
appear to have been considered by the Court. It is, I think,
sufficient to say that there is such an obvious distinction
between judicial separation and divorce, between the con-
tinuance of the marriage tie and its dissolution, and the
rights of the spouses in the two events, that the decision may
possibly be supported notwithstanding our conclusion in the
present case. In view of the course of the discussion about
this case I do not feel justified in saying more than it may
hereafter be distinguished. If it prove incapable of dis-
tinction, so far as it conflicts with the decision in this case,
it must be considered to be overruled.

I am of opinion that this appeal fails and should be
dismissed with costs.

Order of the Court of Appeal affirmed and appeal
dismissed with costs.

Lords' Journals, April 30, 1929.