Monsanto v Monsanto

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Wooding, C.J.
• Judgment Date: 21 November 1968
• Neutral Citation: TT 1968 CA 100
• Docket Number: Civ. App., No. 29 of 1968
• Date: 21 November 1968

Court of Appeal

Wooding, C.J.; Phillips, J.A.; Fraser, J.A

Civ. App., No. 29 of 1968

Monsanto

and

Monsanto

Appearances:

Mr. S. Wooding for the appellant.

Mr. R. Procope Q.C., for the respondent.

Family Law - Husband and wife — Separation — Alimony

Practice and Procedure - Costs — Matrimonial causes

Wooding, C.J.

1 On June 14, 1965 the respondent filed a petition against her husband, the appellant, praying that she might be judicially separated from him. He did not contest the suit. Her prayer having been granted on February 23, 1966, she filed another petition on April 18, 1966, praying that he be ordered to pay her permanent alimony. By a consent order made by Peterkin, J. on February 28, 1967, he was ordered to pay permanent alimony in the sum of $600 per month from January 1, 1967, together with a lump sum calculated at the gate of $400 per month from April 18, 1966, the date of her petition, to the end of that year less such sums as had already been paid to her by the appellant during that period. And by the same consent order he was ordered to provide security for the monthly alimony payments by a charge on such of his real property as might be agreed between the parties or in default of their agreement as might be determined by the court on notice by either party in that behalf. No such agreement having been reached, the respondent on notice to the appellant dated January 26, 1968, applied to a judge in chambers for a further order determining what real property of the appellant should be charged pursuant to the order of Peterkin, J.

2 At the hearing in chambers the appellant contested the court's jurisdiction to make an order providing for security of the alimony payments by way of charge. But the respondent contended that he was thereby seeking unilaterally to vary the consent order made by Peterkin, J. and that he should not be heard in that regard. This contention was accepted by Corbin, J. who accordingly made an order requiring the appellant to provide security by charging six of his properties are specified in the schedule to the order. The appellant appealed.

3 The first question which this court must decide is whether the High Court is vested with any jurisdiction to make an order for security. “Section 9 (1) (a)” of our Supreme Court of Judicature Act, 1962, provides that in relation to matrimonial causes and matters the High Court shall have all such original jurisdiction as is vested in or is exercisable by the High Court of Justice in England under the (English) Supreme Court of Judicature (Consolidation) Act, 1925. Under the latter the court is given jurisdiction, where a decree for judicial separation is made on the application of a wife, to make such order for alimony as it may think just. It may be argued, as indeed it has been, that an order far security is ancillary to an order for the payment of alimony. But examination of the Act will show that the very same section makes a clear distinction between the two. On a decree for divorce or nullity of marriage, subs. (1) gives the court jurisdiction to order security to be provided by the husband for payments of the wife and, quite separately, by subs. (2) jurisdiction is given, either in addition to or instead of an order for security, to direct the husband to pay during the joint lives of himself and the wife such monthly or weekly sums for her maintenance and support as the court may think reasonable. Also, it is to be noticed that on a decree for restitution of conjugal rights “s. 187” provides by subs. (1) for ordering a husband to make periodical payments to the wife, and by subs. (2) for ordering security to be given therefore. All the textbooks say explicitly that a husband cannot be ordered to give security for payment of alimony: see, for instance, Rayden on Divorce (9th edn) p.759 and Latey on Divorce (14th edn) p.27. And in Burrowes v. Burrowes (1929) 141 L.T. 201 Hill, J. commented as follows at pp 203/4:

“Why Parliament should have provided for security in the case of desertion which follows upon disobedience to a decree of restitution of conjugal rights, and not also provided for security in cases of judicial separation based upon desertion for two years and upwards or upon cruelty, I cannot say. I can explain it historically, but I am wholly unable to explain it logically had the wife proved a single act of adultery on the part of her husband she would have been entitled to a decree of divorce and power to order security would have followed, but inasmuch as all she has done is to prove that her husband was guilty of such cruelty that the courts think it is necessary that they should protect her, she is not entitled in law to get a decree for divorce, and is not entitled to obtain an order far security; but I must not be surprised.it that. The law which, this court has to administer is full of inconsistencies, and it is often very difficult to reconcile with common sense. But, at any rate, as to...