Saywell v Saywell [1942] HCA 9

65 C.L.R.]

OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

FRANK HORACE SAYWELL RESPONDENT,

AND

MURIEL MINDIN SAYWELL PETITIONER,

APPELLANT ;

RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Matrimonial Causes—Judicial separation—Permanent alimony—Annual sum secured H. C. or A. to wife—Duration—Dum sola et dum casta vixerit clause—Protective trusts— Trustee— Officer of Court— Matrimonial Causes Act 1899-1929 (N.S.W.) (No. 14 of 1899—No. 5 of 1929), secs. 5, 39,* 40, 43,* 45.*

Where a decree is made for judicial separation the Court may, by virtue of sec. 43 of the Matrimonial Causes Act 1899-1929 (N.S.W.), make an order under sec. 39 of the Act that the husband secure to the wife a gross or annual

sum of money.

Held, in the circumstances of the particular case, that the deed securing payment of an annual sum to a wife who had obtained a decree of judicial separation—(a) should not be subject to determination on the death of the

*The Matrimonial Causes Act 1899- 1929 (N.S.W.) provides as follows :— Sec. 39: '"(1) The Court may on any decree for dissolution of marriage order the husband to secure to the wife for any term not exceeding her life and to the satisfaction of the Court such gross or annual sum of money as it deems reasonable. (2) The Court shall in making such order have regard to the wife's fortune (if any) to the ability of the husband and the conduct of the parties. (3) The Court may settle and approve or refer it to the proper office of the Court to settle and approve of a proper deed or instrument to be executed by all necessary parties. (4) The Court may in such case if it gee fit suspend the pronouncing of its

decree until such deed or instrument has been duly executed." Sec. 43: "Where a decree is made for judicial separation the Court may make all such orders in respect of alimony to the wife as it could make if the decree made was for dissolution of marriage." Sec. 45: "The Court may in all cases in which it makes any decree or order for alimony direct the same to be paid either to the wife herself or to any trustee on her behalf to be approved by the Court and may direct any securities to be given and may impose any terms or restrictions which seem expedient and may appoint a new trustee if for any reasous it appears to the Court expedient to do so."