Julie Ann Speight Williams v Glyn Rhys Williams ((1963 - 1964) Z and NRLR 186) [1964] ZMHCNR 10 (10 December 1964)

JULIE ANN SPEIGHT WILLIAMS v GLYN RHYS WILLIAMS (1963 - 1964) Z and NRLR 186 1963 - 1964 Z and NRLR p186 [Before the Honourable Mr. Jus�ce CHARLES on the 10th December, 1964.] Flynote Divorce - applica�on for ancillary relief made a�er decree absolute - exercise of court's discre�on. Headnote The pe��oner obtained a divorce from the respondent, but a�er decree absolute realised that her pe��on contained no prayer for permanent maintenance. She therefore applied for leave to add the prayer. Held: This was a mater for the exercise of the court's discre�on and in this case it would be exercised in favour of the pe��oner. Applica�on granted: Ques�on of maintenance adjourned to the registrar. Case cited: Aggett v Aggett [1962] 1 All ER 190. C J I Cunningham for the pe��oner J H Jearey for the respondent Judgment Charles J: This is an applica�on, made a�er decree absolute, by the pe��oner for leave to add to the pe��on a prayer for permanent maintenance, which had been omited from the pe��on. The pe��oner was married to the respondent in the United Kingdom on the 18th May, 1963. On the 4th May, 1964, she was granted leave to file, within three years of the marriage, a pe��on for divorce on the ground of cruelty. On the pe��on filed pursuant to that leave a decree nisi was granted on the 8th June, 1964, and that decree was made absolute on the 8th September, 1964. In an affidavit in support of the present applica�on, Mr. Cunningham has deposed that the omission to include a prayer for maintenance in the pe��on was due to an inadvertent oversight by him of a change in prac�ce, and that he has been instructed by the pe��oner that at present she only desires nominal maintenance and her return fare to the United Kingdom. In an answering affidavit, the respondent has deposed that he did not defend the suit because the pe��on did not contain a prayer for maintenance and he had been advised that the pe��oner could not obtain maintenance when it was not prayed for unless she had suffered a material change in her financial posi�on. He also deposed that a further reason was " that the pe��oner is a young and atrac�ve woman who is qualified both as a nurse and as a typist and . . . that our marriage had subsisted for less than one year at the date of the service upon me of the applica�on for leave to present a pe��on ". Mr. Cunningham's argument for the pe��oner was that leave should be granted in order to preserve the pe��oner's rights to maintenance in the future. Mr. Jearey's argument for the respondent was that leave 1963 - 1964 Z and NRLR p187 CHARLES J should not be granted as the respondent had been misled into not defending the suit by the omission of a prayer for maintenance in the pe��on. In support of that argument, he relied upon the following passage from the judgment of Holroyd Pearce, LJ, in which Davies, LJ, concurred, in Aggett v Aggett [1962] 1 All ER 190 (C. A) at page 192: " There could be cases where a husband is misled into not defending a pe��on because of the absence of some prayer for ancillary relief, and for that reason one has to consider all the circumstances before giving leave to assent." Aggett v Aggett is authority that the court has power to amend a pe��on by adding a prayer for ancillary relief even a�er decree absolute. The passage quoted, however, was only obiter dicta which was no more than a direc�on of aten�on to the effect of the omission of a prayer for ancillary relief on a respondent's decision to defend the suit being an important factor, but not the only one, to be taken into account in deciding whether to grant leave to amend or not. Other factors which have to be taken into account here are: In favour of the respondent. His apparent recogni�on and acceptance of the marriage having finally broken down so early, and his apparent opinion that it was beter for both par�es that it be dissolved as soon as possible; and the pe��oner's immediate purpose being not her present needs but to preserve her rights for a future which cannot be predicted, of course, with any degree of certainty, and to obtain a bargaining factor for obtaining from the respondent her return fare to the United Kingdom, an item which is not maintenance. In favour of the petitioner. The fact, which has been conclusively determined by the court, that the pe��oner was brought to this country by the respondent and treated by him with great cruelty from the beginning of the marriage; the fact that the respondent apparently considered the obtaining of a divorce, with freedom from any obliga�on to maintain the young woman he had married, as more important than presen�ng any answer which he may have had to the serious charges which were made against him; that, while the pe��oner may not now be in need of maintenance, there is no guarantee that the need may not arise in the future, and that the difficul�es in pursuing a claim therefor in future will progressively increase with the passage of the years; the public interest in the pe��oner not being le� as a poten�al charge upon the State or already over - taxed chari�es when she has an ex - husband who should be responsible for her necessary maintenance; the power of the court to order or allow payment of maintenance in a lump sum; the fact that the omission of the prayer for maintenance from the pe��on was not the pe��oner's fault but her legal adviser's; and the fact that it will not necessarily follow from the gran�ng of leave to amend, that the pe��oner will obtain maintenance. A�er taking those maters into considera�on, it appears to me that my discre�on should be exercised by gran�ng the leave sought and adjourning the ques�on of maintenance to the registrar. There will be an order accordingly.