Sanders v Sanders

Sanders v Sanders - [1967] HCA 33 - HCA 1967 case summary — Zoe

[26]

Before I refer to the form of the application, I should observe that in any case the objection to the form of application misconceives the place of s. 86 (1) in the Matrimonial Causes Act and its relationship to ss. 84 and 87. Section 86 (1) is not, in my opinion, built upon nor in any wise related to provisions such as s. 55 of the Matrimonial Causes Act, 1899 of the State of New South Wales. No elements of punishment or deprivation of a party such as might be considered in exercising the power given by such provisions are appropriate in considering whether any and if so what order should be made under s. 86 (1). If any of the judgments in Smee v. Smee [1] , properly understood, is to the contrary, I am respectfully unable to agree with it. No doubt an order dealing with property vested in a wife, whether or not beneficially, can be made under the latter sub-section in an appropriate case: but, if made, it will be upon the ground that in the circumstances of the case, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances, it is just and equitable that it should be made. Section 86 (1), with the great width properly to be given to the word "settlement", gives an extensive and flexible power to the court to "settle" property upon a wife as a means of providing for her maintenance and for that of the children of the marriage. In this respect, in my opinion, it is evidently intended to be and is aptly expressed and so placed in the Act as to be complementary to s. 84. Consequently, I can see no reason to doubt that a court exercising jurisdiction in proceedings for maintenance under the Matrimonial Causes Act can exercise the powers given by s. 86 (1), though there be no greater claim made by the petitioner in the petition than a claim for maintenance, without specifying a settlement as the desired means or as a component of the desired means of the provision of such maintenance. Section 87 as clearly appears from its terms is as applicable to the exercise of power under s. 86 (1) as it is to an exercise of power under s. 84. Both powers, in relation to the provision of maintenance, are grounded on the same considerations which earlier in these reasons I have expressed by combining expressions taken from each section. In my opinion, the Court is not limited in the exercise of the power given by s. 86 (1) to cases where the wife has contributed to the property which it is thought appropriate to settle on her as a means of providing her maintenance, or which it is thought ought to be settled upon her in adjusting as between them the rights or moral claims of the spouses upon the dissolution of their marriage. With respect I am unable to agree with expressions to the contrary to be found in Smee v. Smee [1] .

[40]

I wish however to state for myself what I consider to be the effect of s. 86 (1) of the Matrimonial Causes Act 1959 Cth. The power (under s. 84) to make an order for maintenance, and the power (under s. 86 (1)) to order a settlement are not mutually exclusive. They overlap and may be exercised separately or in combination to produce a total result which in the circumstances of the case is just and equitable. An order under s. 86 (1) may be a means of providing maintenance. Section 87 shows how flexible and far-reaching are the powers which a court dealing with a matrimonial cause may now exercise. The discretion must of course be exercised according to accepted principle, for what is just and equitable in this jurisdiction is not a matter of unfettered individual opinion. One party is not to be required to make over property to the other simply because the judge thinks his (or her) conduct was reprehensible. There is a distinction between s. 84 and s. 86 (1). But it is not, as I read the Act, a distinction between two different ends: rather it is between two different means directed to the same end, a just and equitable arrangement of proprietary rights and interests, ancillary to one of the forms of principal relief for which the Act provides. The basic distinction between s. 84 and s. 86 (1) is that a provision for maintenance under s. 84 does not involve an order relating to some particular item of property or an interest therein. An order may be made under s. 84 providing simply for periodic payments, or for a lump sum, by way of maintenance. The party liable to perform it may then satisfy the obligation out of any resources available to him (or her). That is a matter for him (or her) to decide. An order under s. 86 (1), on the other hand, must be for a "settlement of property to which the parties are, or either of them is, entitled (whether in possession or reversion)". I agree with what Walsh J. said in Smee v. Smee [1] , that an order that one party should "settle" a sum of money, not being any existing separate fund, upon the other is not an order which can be made by virtue of s. 86 (1). But that does not mean that such an order cannot be made; for a provision for maintenance under s. 84 is not restricted to a sum sufficient to provide subsistence. A lump sum may be ordered. And the order is not the less valid because it be described as a "settlement" and the party liable is permitted to raise it out of whatever of his assets he chooses. Moreover if an order be made that a party "settle" a sum upon the other as a means of providing maintenance, it would be well within the powers of the court to direct that it be secured, or in a strict sense "settled". For example the order could provide for payment to trustees for the benefit of the party in whose favour it was made, he (or she) maintaining the children.

[41]

The use of the word "settlement" in s. 86 (1), instead of, say, "disposition", has it seems been taken to narrow the application of that provision by separating rigidly the power it gives from the power given by ss. 84 and 87 and by colouring it by the past history of earlier enactments going back to their remote ancestor, s. 45 of the English Act of 1857. This I think is a mistake. Sugerman J. in Smee v. Smee [2] summarized the history of the earlier provisions. I agree with what his Honour said in that case. One consideration, and in many cases no doubt the main or only consideration, when an order for the settlement of specific property is sought is how that property came to belong to the party entitled to it. Was it acquired directly or indirectly through the other party? Was it, for example, obtained as a result of a marriage settlement? Was it the result of material contributions or the endeavours or enterprise of the other party? Considerations of this sort may justify an order under s. 86 (1) notwithstanding that, because of the respective means of the parties or for some other reason, an order for maintenance in the ordinary sense would not be thought necessary. But that these considerations may be cogent does not mean that they alone are relevant. When a decree for dissolution of marriage has been made then, to adopt what was said by Kitto J. in Lansell v. Lansell [1] "a re-adjustment of the property rights of the spouses may be required if consequential injustice to one or both of the spouses and to the children is not to result. The making of a settlement may be a way of carrying to completion, or nearer to completion, the task of dealing fully with the relationship which is the subject of the matrimonial cause. Orders with respect to maintenance are familiar as one means of dealing with an economic situation arising from the granting of substantive matrimonial relief. Orders varying ante -nuptial or post-nuptial settlements, as provided for by s. 86 (2), provide another example: see Dewar v. Dewar [2] . The orders which s. 86 (1) authorizes are more akin to the latter than to the former, for in considering under s. 86 (1) what is just and equitable in the circumstances the court is not restricted to considerations relevant to maintenance; but they share with both the character of relief incidental to, because consequential upon, the dissolution of a marriage or the granting of one of the other forms of relief which identify a cause as a matrimonial cause in the ordinary English sense of the expression."

At a glance

Court

Decision date

Before

Source

Judgment (46 paragraphs)

Parties