125-NLR-NLR-V-17-SOYSA-v.-SOYSA.pdf
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Present: Wood Benton A.C.J. and De Sampayo A.J.1M4
SOYSA v. SOYSA.
229—D. Ot Colombo, 36,968.
Deed of separation—Payment of annuity to wife—Dissolution of marriageby Court—Separation deed hote far affected—Annuity by husbandto wife is separate property of wife — Agreement for vohmtaryseparation not iUegat under the Roman-Dutch law—Appeal to thePrivy Council.
A dissolutionof the marriagedoes not of itself affect thepro-
visions in a separation deed as to a settlement of property or theliability of the husband on a covenant to pay an annuity to thewife by way of a permanent provision, though such provisionsmay be varied by the Court in pursuance of its jurisdiction in thatbehalf.
An annuity granted by a husband to his wife belongs to theseparate estate of the wife, and does not, as being movable property,vest in the husband.
Under the Boman-Dntch law an agreement forvoluntary
separation anda provisionasto property are not' onlynot
illegal, bnt valid as between the parties themselves, and are onlyineffectual for certain purposes.
Da SamfatoA.J.—“ Theprovision for the payment ofan
annuity by thedefendant totireplaintiff is good and valid under
the Boman-Dutch law, even if that law applied on this point to thecase of a marriage not in community, but under Ordinance No. 15. of 1876, of which I have serious doubts.”
*jpHE facts are fully set out in the judgment.
Bawd, K.C., and A. St. V. Jayewardene, for plaintiff.
M. de Swam, (with Elliott and Hayley), for respondent.
Cut. adv. vitlt.
August 8, 1914. De Sampayo A.J.—
The plaintiff was the wife of the defendant, having been married.,to him in London on September '22, 1908. Certain differences -having' arisen between them they lived apart since December, 1911,and their marriage was dissolved by final decree of divorce onJanuary 16, 1918, in the action No. 34,307 of the District Court ofColombo brought by the plaintiff against, the defendant. In .themeantime the parties entered into the deed No. 588 dated March25, 1912, whereby, after reciting ^that they were living separate andapart from each other on account of .their differennces, that by anante-nuptial agreement the defendant had settled on certain trustees
J. N. B 18828 (7/62)
1914.
Db SampayoA.J.
Soysav.
8oyea
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for the benefit of the plaintiff) a policy of insurance for £5,000,and had also gifted to her on February 17, 1911, the Keenekelleestate of the value 6f Bs. 250,000, and in July, 1911, a sum of£4,000 in cash, and that it had been agreed that the defendantshould, “ in addition to the provision already made as hereinbeforeset forth, make further provision by way. of annuity (for the plaintiff)upon terms and conditions hereinafter expressed,’* it was witnessedthat, “ in /pursuance of' the said agreement and in considerationof the premises,*’ the defendant covenanted to pay to the plaintiffduring her life the annual sum of Bs. 7,200 in monthly instalmentsof Bs. 600. Under this agreement the defendant duly paid to theplaintiff the monthly instalments which fell due both before andafter the decree of divorce, but he failed to do so since August, 1913,and this action is brought for the recovery of Bs. 600 for the instal-ment due for August, 1913.
The claim is resisted on various grounds, which the DistrictJudge in an able and exhaustive judgment has decided against thedefendant, and which are again pressed before us in appeal.
. It is, in the first place, objected that the plaintiff, not having madea claim for alimony or for a settlement of property in the divorceaction, and no order having been made under section 615 andsucceeding sections of the Civil Procedure Code, the plaintiff isprecluded by the operation of section 34 from maintaining thisaction on the agreement. The deed expressly provided that theplaintiff should, out of the provision made for her before and by thedeed, maintain herself, and should not take any action or proceedings'against the defendant for the recovery of any sum of money by wayof maintenance or alimony. Accordingly, when the plaintiff broughtthe divorce action, she stated in her plaint that she made no claimfor alimony in that action, as the defendant had already madeprovision for her in that respect. The defendant filed no answerand, as a matter of fact, the decree for divorce was entered afterex parte trial. But it is, nevertheless, argued that she should haveobtained an order for alimony under section 615 of the Code, or havesought an inquiry into the antenuptial and postnuptial settlementsand have had an order made under section 617 or section 618 of theCode, and that in default she would not be entitled to enforce thecovenant in the agreement. I should say it was for the defendantto have moved the Court in that respect, if he desired to alter theexisting situation, especially in view of the fact that the plaintiffhad clearly expressed in the plaint her intention to abide by heragreement not ■ to take any proceedings in respect of maintenanceor alimony. Moreover, what section 34 of the Code provides isthat “ every action should include the whole of the claim which theplaintiff is entitled to make in respect of .the cause of action.” Thecause of action in the divorce case was the misconduct of the defend-ant, and the whole claim in respect of it is the claim for dissolution
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of the marriage tie. No doubt the Court is vested* with power, onentering any decree of divorce, to make orders for alimony,, but thatis not a matter necessarily arising from the cause of .action. Inmatrimonial cases the Court is to do what is fair and just in respectof the future of the parties and of their children independently ofany special claim in the plaint, and, indeed, such order may be made,not as part of the decree, but even after decree and in separateproceedings. The objection, however, was even more broadlystated; that is to 6ay, that divorce proceedings put an end altogetherto any previously existing agreements for alimony. Under theEnglish law a dissolution of the marriage does not of itself affect theprovisions in a separation deed as to a settlement of property, or theliability of the husband on a covenant to pay an annuity to the wifeby way of a permanent provision, though, of course, suoh provisionsmay be varied by the Court in pursuance of its jurisdiction in thatbehalf. See the Laws of England, vol. XVI., p. 460, and theauthorities therein cited. I know of nothing in the Roman-Dutchlaw which compels us to hold otherwise, and I think that the Englishlaw, which is in accordance with reason, should be followed. What-ever doubt may arise on this point in the case of a marriage withcommunity of property, there can. be no difficulty in this case,because the parties here are governed by the Matrimonial RightsOrdinance, No. 15 of 1876, which itself is based on English legis-lation regarding .the status and property of a married woman.
Then it is said that the agreement has the effect of conducing tomatrimonial misconduct and facilitating divorce proceedings, andis therefore wholly bad as being contrary to public policy. Thereference is to the clause which, after providing that neither pariyshould molest the other or endeavour to compel the other to cohabitwith him or her by legal proceedings for restitution of .conjugalrights or otherwise, proceeds to state a proviso, thus: “ Providedalways and it is hereby expressly agreed that it shall be lawful foreither of them to sue for and obtain from a Court of competentjurisdiction a dissolution of their marriage by reason of any mis-conduct which has heretofore taken place or which may hereafter
take place, and the dissolution of the said marriageshall
not in any manner affect or prejudice the provision by these presentsmade for (the plaintiff), and the (defendant) shall, notwithstandingthe dissolution of the said marriage, continue to pay the annuityhereinbefore provided. ” I cannot see that this clause has thetendency contended for; it probably has the opposite tendency,for the defended is thereby obliged to pay the agreed annuityand no more, while the Court in divorce proceedings may compelhim to pay more, or, if the plaintiff were the offending party, maycut down the provision, so that both parties, so far as materialconsiderations are concerned, are interested in- preserving thestatus quo. Nor do I think that there is any foundation for the
1914.
Db SampayoAJT.
Soysav.
Soyeu
1M4.
Db SampayoAmT.
Soyaa
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further argument that the agreement is bad because it providesfor a future separation. The document itself recites that the partieshad already begun to live apart, and proceeds to witness that theyhad agreed to live separate and apart thereafter at all times. Bothby intention and by actual provision the separation was to beimmediate.
It is also argued that the covenant in the deed is inoperative, forthe reason that the annuity is movable property, which vests in thehusband under section 19 of the Matrimonial Bights Ordinance,and need not therefore be paid. That section vests the wife’smovable property in .the husband, but (1) “ subject and withoutprejudice to any settlement' affecting the same, and (2) exceptso far as is by this Ordinance otherwise provided.” The presentcase appears .to ine to come under , both these exceptions. Theannuity i$ the subject of settlement under the deed, but it is arguedthat the word “ settlement ” means settlement in the sense of theEnglish law, and does not include a mere covenant to pay money.Whatever the technical meaning of the term may be in the Englishlaw, I think the right to the annuity is vested in the plaintiffunder the Ordinance. Section 13 authorizes “ any voluntary grant,gift, or settlement,” which appears to me to embrace all modes ofvoluntary bestowal of property. If the provision in the deed isnot a ” setlement,” it is a gift, and the money belongs to thewife's separate estate and so comes under the second exception insection 19.
I come now to the main, and in some respects the strongest,argument on behalf of the defendant. It is conceded that underthe English law such an agreement as this is valid, but it is contendedthat under the Boman-Dutch law, which, it is said, is still applicableto the parties, a voluntary separation is wholly illegal, and thatconsequently the provision for an annuity in consideration of it.goes .with it. I cannot find any authority for saying that under theBoman-Dutch law, an agreement for separation is wholly illegal.Brouwer, de thor. et men. Bepaw. 2, 29, 4, which is relied on, say6 thatthe reason why a voluntary separation is prohibited is that at thattime (hodie) the marriage itself is a public contract, at which theparties make a promise to the Judge to observe unity of life {indivi-duam vitae consuetudinem), and that therefore .the Judge alone, towhom the promise is made, can dispense them from the chiefobligation so undertaken, viz., the living together (vitce scilicetconsortium). This reasoning does not seem to be applicable to us,and, moreover, Brouwer does not explain what he means by " pro-hibited ” (interdicta). There is no doubt that the general rule isthat a separation a mensa et thoro as much as a divorce a vinculoshould be effected by decree of Court, but it is necessary to under-stand the scope and extent of the law so stated. Voet, de divor etrepud, 24, 2, 19, says that the effect of the non-interposition of a
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decree of Court is that all the consequences ol the marriage remainunaffected, unless the parties otherwise agree (nisi oliud inter con-,jugea pacto actum asset), in whioh case the agreement will be bindingon the parties themselves though not on the creditors. Bruyn,in his Opinions of Orotiua, at page 33, referring to Vanderlinden1, 3, 8, and certain South African cases, states the law in the same. way. Delaney and Hutton’s Leading Cases on Vanderlinden,at page 13, quotes the following passage from the judgment of ChiefJustice de Villiers in Scholtz v. Felmore:1 “ The general rule is thatvoluntary separation between parties is binding only between theseparties, but where a creditor knows beforehand'the terms of theseparation, he cannot have any right? greater than those of thewife with whom he is dealing,” showing that in the case mentionedeven creditors would be bound. In Boos and Beitz’s Principlesof Roman-Dutch Law, at page 21, the authors State that in theTransvaal, if the parties enter into a notarial deed of separation,either party may make application to a Judge in chambers for ajudicial separation subject to the terms of the notarial deed, andthey refer to Ex parte Van der Hove and Van der. Hove,2 which is saidto have been followed in numerous cases. As regards the law asunderstood and applied in Holland itself, I may refer to two decisionswhich are to be found in Neostadius, de pactis antenup. observ. VII.
& VIII. In the first of these cases, the question arose betweenthe wife and a creditor in respect of a judgment entered againstthe husband after the separation. The creditor sought to sell inexecution a house whioh had belonged to the community. TheProvincial Court decided in favour of the wife, but in appeal theCourt of Holland set aside the decision and held that the house wasexecutable for half the judgment debt. In a note on the caseNeostadius explains the ratio decidendi and shows that .the wholequestion turns upon the potestas maritalis, which he says oontiuuesnotwithstanding the separation, and by virtue of which the husbandcan subject the common property to his debts; but he adds that,if under the same circumstances the potestds maritalis had ceasedby his death before execution, the mandate which a debtor issupposed to give to his judgment-creditor to realize the debt bysale of property would have expired too, and the house would haveremained to the wife as her absolute property by virtue of the termsof the agreement. In the other case reported by Neostadius, theseparation was affected by a notarial instrument, by which inconsideration of the separation and in redemption of the husband’sinterest in the community the wife agreed to pay him a certain sunAin annual instalments. The husband received the agreed annuity,but afterwards returning to the house occupied himself as anagricultural labourer of the wife for wages. After his death hisdaughter claimed a half share of the property against the widow,
3 4 S. C. 192.* [1908) T. S. 317.
1014.
b Sammw
A-*'
Soy tap;
Soyia.
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1914. Hie Provincial Court held in her favour, and the decision wasAWv affirmed by the Appellate Court. In the comment on the case,A.J. Nohstadius, as usual, discusses its ratio, and he puts the question,Sousa v " ®ow *ar the separation good and valid so long as the potestasSvys* * maritalis continues and so long as the husband's right to administerthe common property has not been taken away from him ? ” Hisanswer is.that both the poiesias maritalia and the right of administra-tion Can be determined by agreement so far as the wife is concerned(mqrito ahrogan quoad mulierem potent), though it may be differentas regards creditors, because the creditors have a vested right topursue the common property, unless at the time of the separationthe husband had been publicly interdicted either as regards thewhole community, or as regards her share (nisi simul cum divisionebonis. m.&rito ifr 'imiversum vel pro uxoris parte publice sit interdictum;turn enim et potestas maritalis corruet et administrate cessabit). Thelast sentence hare.:quoted appears to support Chief Justice do Villiers*opinion above; referred to, that creditors who have knowledge ofthe. terms Of' the separation are thereby affected. As regards thereason for dividing the estate between the daughter and the widow,Neostadius explains that the division of property by consent wasia law temporary and provisional, for the aeparatio a mensd et thorolasts only, till the death of one, when the marriage is finally dissolvedand the division of property is made afresh. Grotius goes fartherthan any- other Dutch jurist as regards the effect of voluntaryseparation on the community of property, for he says in book 3,chapter 21, section 11, “ Such partnership (i.e., community ofproperty) 13 dissolved by the death of either spouse; also by decreeof divorce on the ground of adultery, or, in as far as the partiesthemselves' and their beirs are concerned, by voluntary separationof property," Referring to this passage, Abraham a Wesel 2, 4, 28& 99, says-that this is inconsistent with the decision of the Court ofHolland in the case between the widow and the daughter whichI have cited from Neostadius. Finally, 3 Burge 817 (new edition)states that the view of the law as understood in South Africa alsois that as regards the spouses an agreement for separation whichprovides for the division of the community to which the innocentspouse would have been entitled if a judicial separation had beenobtained is considered a legal and effectual contract." The resultof all the authorities is that an agreement for voluntary separationand a provision as to property are not only not illegal, but validas between the parties themselves, and are only ineffectual for certainpurposes. 1 therefore think that the provision for the payment ofah annuity by the defendant to the plaintiff in this case is good andvalid .under the Roman-Dutch law, even if that law applied on thispoint to the. case of a marriage not in community but under theOrdinance No. 15 of 1876, of which I have serious doubts. Thisbeing so, R is unnecessary to deal with the further point discussed
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during the argument as to whether the part of the deed relatingto the annuity can be severed from that relating to the separation,and can be held to be by itself operative and enforceable. TheSouth African cases, Ziedeman v. Ziedeman1 and Albert™ tJ. Albert™,8to which, since preparing the above judgment, I have been ableto refer, quite bear out the conclusion I have arrived at.
I would dismiss the appeal with costs.
Wood Benton A.C.J.—
I had commenced the preparation of a judgment of my own.But I feel that I cannot usefully add anything to the elaborate and,if I may venture to say so, illuminating judgment of my brotherDe Sampayo, which I have had the very great advantage of perusing,and with which I entirely agree.
Thp appeal is dismissed with costs.
Appeal dismissed.
This is an application for conditional leave to appeal under the rules inschedule 1 to Ordinance No. SI of 1909. Objection has been taken that thecase is not one that falls within the scope of rule I (a) of the rules referred to.The applicant moves, not only for a declaration that the contemplated appealinvolves indirectly (if not directly) a question respecting property or a civilright amounting to or of the value of Bs. 5,000 or upwards, bat for an orderthat in the opinion of this Court the question involved in the appeal would beone which by reason of its “ great general or public importance or otherwise ”ought to be submitted to His Majesty in Council for decision. The actionis based on *.an agreement between the defendant and the plaintiff, who werehusband and wife, for a separation a mensd et thorn. The averment in the secondparagraph of the plaint is that the defendant agreed) to pay -to the plaintiffduring her life the annual sum of Bs. 7,900, payable in monthly instalments ofBs. 600 each, payable on or before the 10th of each and every month. Theactual claim made in the plaint is that the defendant be condemned to paythe plaintiff the Bs. 600 that became due on the 10th August, 1913. 'l?ievalidity of the agreement in question was put in issue by the defendant, and theDistrict Court, after trial, held that the agreement was valid. The validityof the agreement thus became matter that was res judicata between the parties.(See Saimtchi e. Pieris—14 N. L. R. 357.) That being so, the-.right to be valuedin the case is the right of the defendant to receive from the plaintiff Bs. 7,200a year during her lifetime.' The actual valne of this right would, of course,depend largely upon the number of years that the plaintiff was still likely tolive. In view of the fact that the plaintiff has so far lived since the 10th August,1913, more than a year, and has become entitled to recover at the rate ofBs. 600 during that period, it is not difficult to see that the right in .questionexceeds Bs. 5,000 in value.
I am, moreover, of opinion that the question involved in this' appeal is onewhich by reason of its importance ought to be submitted to His Majesty, inCouncil for' decision, and I would allow the application with costs.
The applicant should*, of course, give the' necessary security, which I wouldfix at Bs. 3,000.
Db Sampavo A.J.—I agree.
1014.
De SampayoA.J.
Soysa v.Soysa
1 (1838) 1 Mem. 238.
2 (1859) 3 S. 202.