Maria Anuntiata McKeever Phillips v Guy Alfred McKeever Phillips ((1963 - 1964) Z and NRLR 150) [1964] ZMHCNR 11 (23 November 1964)

MARIA ANUNTIATA McKEEVER PHILLIPS v GUY ALFRED McKEEVER PHILLIPS (1963 - 1964) Z and NRLR 150 1963 - 1964 Z and NRLR p150 [Before the Honourable Mr. Jus�ce CHARLES on the 23rd November, 1964.] Flynote Divorce - collusion - agreements made by par�es contempla�ng divorce - role of the court - rule 2A of the Matrimonial Causes Rules, 1957, as amended. Headnote The par�es were contempla�ng divorce proceedings and proposed to make a property setlement in rela�on to, but in advance of the proceedings. They sought the approval of the court to the proposed agreement. Held: The court should not be asked formally to approve any such agreement. The court is solely concerned with whether or not the proposed agreement is collusive, and if so what consequent direc�ons should be given. Applicant given leave to have the mater adjourned for the filing of addi�onal evidence or have the applica�on reserved for considera�on on the hearing of the pe��on. Cases cited: (1) Emmanuel v Emmanuel [1945] 2 All ER 494. (2) Noble v Noble and Ellis (No. 2) [1964] 1 All ER 577. (3) Mulhouse v Mulhouse [1964] 2 All ER 50. A O R Mitchley for the pe��oner The respondent appeared in person. Judgment Charles J: This is an applica�on by a wife for the approval of an agreement which she and her husband wish to make in contempla�on of, or in connec�on with, a proposed pe��on by the wife for divorce. She also asks for direc�ons. The applica�on was made in chambers on an origina�ng summons under rule 2A of the Matrimonial Causes Rules, 1957, as amended by the Matrimonial Causes (Amendment No. 2) Rules, 1963. I understand that the applica�on is the first of its kind in this country. On that account I have moved it into court for judgment. According to the affidavit which has been filed in support of the applica�on the prospec�ve respondent has been living with a woman other than the prospec�ve pe��oner and has had a child by her: he le� the matrimonial home on or about the 30th December, 1963, and has not lived with the prospec�ve pe��oner since: and the prospec�ve pe��oner and respondent have agreed, subject to the approval of the court being given, to execute a deed of setlement in contempla�on of the prospec�ve pe��oner obtaining a divorce. A copy of the proposed deed is exhibited to the affidavit. Shortly stated, the proposed deed provides for the following: Reten�on by the wife of all chatels, contents and effects in the former matrimonial home as her separate property; payment of a sum of £45 per month to the wife by way of maintenance, with effect 1963 - 1964 Z and NRLR p151 CHARLES J from the 1st May, 1964; conveyance of a half - share in a freehold property to the wife, with provision for use and enjoyment of the whole property by the wife during her life�me; assignment to the wife of one - half of the net proceeds from two insurance policies, one for £300 and the other for £1,200; and conveyance, in certain circumstances, to the wife of any property coming to the husband from two estates. Sec�on 4 of the Matrimonial Causes Act, 1950, as amended by sec�on 4 of the Matrimonial Causes Act, 1963, provides that on a pe��on for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged and whether any collusion exists between the par�es, and that the court shall not be bound to pronounce a decree if it finds that the pe��on is presented or prosecuted in collusion with a respondent. The sec�on as amended thus makes collusion a discre�onary bar to the pronouncing of a decree. Prior to the amendment of the sec�on by sec�on 4 of the Matrimonial Causes Act, 1963, collusion if reasonably suspected but not disproved was an absolute bar. By sec�on 4 of the later Act the duty of the court to inquire into the existence of collusion is re-stated. Whether that re-statement has the effect of making reasonably suspected but not disproved collusion, as well as proved collusion, a discre�onary bar is a ques�on which may be le� open here. (Rayden, Divorce, 9th edi�on, page 231.) " Collusion " may be defined as being any express or implied agreement or arrangement between the par�es to a divorce suit or their agents which has the following features: (a) It relates to the ini�a�on or conduct of the par�cular suit in respect of which the ques�on of collusion arises. (b) It was intended or has the tendency to pervert the course of jus�ce by misleading the court as to the genuineness of the claim for relief or by preven�ng the court from making a proper determina�on of the suit. (See Rayden, Divorce, 9th edi�on, page 242; Emmanuel v Emmanuel [1945] 2 All ER 494 at pages 495 - 6 per Denning J; Noble v Noble and Ellis (No. 2) [1964] 1 All ER 577 at page 581 per Scarman, J) The trend of the authori�es seems to be that the court will not exercise its discre�on in favour of a collusive pe��oner unless it is sa�sfied that the collusive agreement or arrangement did not actually procure the presenta�on of the pe��on and was not actually intended to impede, and has not impeded, the court in making a proper determina�on of the suit (Mulhouse v Mulhouse [1964] 2 All ER 50 and authori�es therein cited). By sec�on 4 (3) of the Matrimonial Causes Act, 1963, provision may be made by rules of court " for enabling the court, upon applica�on made either before or a�er the presenta�on of a pe��on for divorce, to take into considera�on for the purpose of the said sec�on 4 (that is, of the Matrimonial Causes Act, 1950) as amended by this sec�on any agreement or arrangement made or proposed to be made between the par�es, and to give such direc�ons in the mater as the court thinks fit." The rule under which this applica�on has been brought was made under that subsec�on. 1963 - 1964 Z and NRLR p152 CHARLES J It is to be noted that the subsec�on does not authorise the court approving of an agreement or arrangement upon an applica�on made under it. Neither does the rule made under it purport to confer such authority. Further, the form of origina�ng summons prescribed for an applica�on before presenta�on of a pe��on does not contain a request for approval. In that respect the origina�ng summons here departs from the prescribed form. What the subsec�on does is to authorise the court, upon a preliminary applica�on, to consider whether or not a made or proposed agreement or arrangement is or is not collusive and to give such direc�ons with reference to it according to its conclusion as will save expense to the par�es, save the �me of the court and facilitate the trial on the ques�on of collusion and its effect as a discre�onary bar. As the court may give such direc�ons as it thinks fit, it may direct that a collusive agreement or arrangement be cancelled and that a pe��on presented pursuant to it be struck out, if the collusive agreement or arrangement appears to be such that the court at the trial would refuse a decree in the exercise of its discre�on; it may direct that a collusive agreement or arrangement, made or proposed, be disclosed in the pe��on as collusive with a prayer for the exercise of the court's discre�on in the pe��oner's favour or if it appears not to be conclusive, with a request for approval; or it may refuse to give any direc�ons. The direc�ons which I have men�oned are by way of example only; any other direc�ons which may be appropriate in the par�cular applica�on may also be given so long as they do not preclude the court at the trial from deciding that the agreement or arrangement to which they relate is collusive and should be a bar to a decree. In short, on what is really an interlocutory applica�on, the court may give final disapproval to an agreement or arrangement but not final approval. In this applica�on there is insufficient informa�on for me to consider whether or not the proposed deed of arrangement is collusive and if it is, whether it should not be made. Those ques�ons can only be determined with regard to whether or not there is any collateral agreement or arrangement as to the ins�tu�on or defence of the suit, and as to the circumstances in which the deed came to be proposed, nego�ated and accepted. The financial posi�on of the par�es is also relevant as they may show the proposed agreement to be so unreasonable as to render it collusive. (Emmanuel v Emmanuel, supra). The proposed pe��on is also relevant in respect of the collateral relief it is intended to claim. The affidavit in support of the applica�on is silent on all those respects. In fairness to the applicant and her legal advisers, rule 2A of the Matrimonial Causes Rules, 1957, does not require the affidavit to cover those subjects: all that it requires is that the affidavit sets out par�culars of the agreement or arrangement and the grounds on which the applica�on is made (sub- rule (2)). But the rule making authority cannot reduce the court to a rubber stamp, contrary to the inten�on of the legislature. The court's duty under sec�on 4 (3) of the Matrimonial Causes Act, 1963, is to consider whether or not the submited agreement or arrangement, made or proposed, appears to be collusive and to give appropriate direc�ons according to the conclusions which it makes from its considera�on. That necessarily means that the applicant shall place before the court 1963 - 1964 Z and NRLR p153 CHARLES J all the facts necessary for a conclusion and for giving appropriate direc�ons. It follows, in my opinion, that the present English rule requires either to be supplemented by a prac�ce direc�on or to be replaced by a more defini�ve rule of this court. Having regard to the deficiency of the applicant's affidavit, three alterna�ves appear open to me: to dismiss the applica�on: to direct that the applica�on be reserved for considera�on of the court at the hearing of the pe��on and that the pe��on includes a prayer therefor (see Matrimonial Causes (Amendment No. 2) Rules, 1963, rule 4 (3)); or to adjourn the applica�on with leave to the applicant to file a supplementary affidavit. As the applicant has substan�ally complied with the inadequate rule 2A of the Matrimonial Causes Rules, 1957, the first alterna�ve does not seem to me to be appropriate. I shall therefore give her the choice of the other two alterna�ves.