Saywell v Saywell

The case of Saywell v Saywell involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute concerned the terms of an order for permanent alimony awarded to Muriel Mindin Saywell (the respondent wife) following a decree of judicial separation against her husband, Frank Horace Saywell (the appellant husband). The core of the disagreement lay in the conditions and duration of the annual sum the husband was ordered to secure for his wife's maintenance.

The legal issues before the High Court were whether the order for securing an annual sum to the wife should be subject to termination upon the husband's death, whether it should include a clause requiring the wife to remain chaste (a *dum casta* clause), and whether it should incorporate protective trusts to safeguard the payments. The Court also considered the applicability of Section 45 of the *Matrimonial Causes Act 1899-1929* (NSW) to orders made under Section 39 of the same Act, and the propriety of appointing court officers as sole trustees.

The High Court, in allowing the appeal, reasoned that while Section 43 of the *Matrimonial Causes Act* empowered the Court to make alimony orders in judicial separation cases as if it were a dissolution of marriage, the distinct nature of judicial separation required careful consideration. The Court held that the order securing the annual sum should not automatically terminate upon the husband's death, as this would be unreasonable and leave the wife without provision. However, it found that a *dum casta* clause was appropriate and prudent given the circumstances, including the pending divorce proceedings initiated by the husband on grounds of adultery. Furthermore, the Court determined that protective trusts, modelled on Section 45 of the *Trustee Act 1925* (NSW), should be included to prevent the wife from being deprived of the payments through her own actions. The Court also expressed reservations about appointing court officers as sole trustees, suggesting independent trustees be appointed instead.

The High Court ordered that the appeal be allowed, the variation made by the Supreme Court regarding the pending divorce suit be discharged, and the matter be remitted to the Supreme Court to settle and approve an instrument securing the annual sum. This instrument was to include a *dum casta* clause and protective trusts, and substitute independent trustees for the Registrar. The appellant husband was ordered to pay the costs of the appeal.