Neutral Citation no. [2001] NIFam 6
Ref:     
GILF3366

 
Judgment: approved by the Court for handing down
Delivered:
21.03.2001
(subject to editorial corrections)

 

 

 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 ________ 
 
FAMILY DIVISION
 
PROBATE AND MATRIMONIAL OFFICE
 ________ 
 
BETWEEN:
 
ELIZABETH IRWIN
 
Petitioner;
 
-and-
 
ALFRED JOSEPH IRWIN
 
Respondent.
 
 ________ 
 
GILLEN J
 
            This matter comes before me as a petition issued by the petitioner against the respondent in which she seeks dissolution of her marriage on the grounds of irretrievable breakdown of the marriage on the ground that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
            Before turning to the facts of this case, it may be helpful if I set out the legal principles that govern a case of this nature:
1.         In considering what is reasonable the court will have regard to the history of the marriage and to the individual spouses before it and from this point of view will have regard to this petitioner and this respondent in assessing what is reasonable.  Allowance has to be made for the sensitive as well as for the thick skinned and the conduct must be judged up to a point by reference to the victim’s capacity for endurance and in assessing the reasonableness of the respondent’s behaviour the court would consider to what extent the respondent knew or ought reasonably to have known of that capacity.  The court has to decide a single question whether the respondent has so behaved that it is unreasonable to expect his wife to live with him.  In order to decide that, it has been necessary for me to make findings of fact as to what the respondent actually did and also what the petitioner actually did.  Any conduct, active or passive constitutes behaviour.  Any and all behaviour may be taken into account and the court will have regard of the whole history of the matrimonial relationship.  That behaviour may be an act or omission or course of conduct.  Regard will be had to the cumulative effect of the behaviour for while conduct may consist of a number of acts, each of which is apparently reasonable in itself, the conduct may well be even more effective if it consists of a long continued series of minor acts no one of which could be regarded as serious if taken in isolation, but which if taken together are such that the petitioner cannot reasonably be expected to live with the respondent.
2.         Under the former law, cruelty was a ground for divorce.  This as a concept has been specifically repealed.  There is no need now to prove injury to health, although if injury to health is proved in consequence of the respondent’s behaviour the court would be more readily satisfied that the petitioner cannot reasonably be expected to live with the respondent.  Broadly speaking, the phrase “the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent” is within the same range as conduct amounting to constructive desertion, that is, grave and weighty conduct, serious conduct which reasonably results in one party leaving the other.
3.         It may in any given case be unreasonable for a respondent to make inordinate demands for sexual intercourse or for sexual intimacy.
4.         The burden of proof is on the person alleging that the other spouse has behaved in such a way that he or she cannot reasonably be expected to live with the respondent.  It is for the person making the allegation to prove the behaviour by the other party and that he or she cannot reasonably be expected to live with the respondent.  Unless she satisfies the court of both of these matters, the court will not hold that the marriage has broken down irretrievably.  Divorce is a civil matter, and the allegations may be proved by a preponderance of probability.  It has been said, however, that in proportion as the offence is grave, so ought the proof to be clear.  (See Blyth –v- Blyth and Pugh 1966 AC 643.  However, I have approached this case on the basis of H –v- H (a minor) 1990 Fam 86 where the court said that the test which is appropriate is still the balance of probabilities as applied to the facts of each case.  Accordingly, I have sought in this case to see if the petitioner has proven her case on the balance of probabilities as applied to the facts that she alleges.
5.         Corroboration of the petitioner’s evidence is not required as an absolute rule of law, but in matrimonial cases corroboration is desirable, although much less so than in former times (see Rayden on Divorce 17th Edition paragraph 8.25).
6.         A petitioner may not lead evidence of particular facts not referable to any specific allegation in the petition (see Gunner –v- Gunner 1954 1 AER 695 and Thompson –v- Thompson 1957 P. 19).  However an adjournment might be granted to enable the petition to be amended and the respondent to meet the charge.  
            I turn now to the facts of this case.  The petitioner’s evidence was that the parties were married on 12 April 1973.  The parties are domiciled in Northern Ireland and there were two children of the marriage, one of them is now 25 and one of whom is now 27.  There had been no previous proceedings with relation to their marriage.  There was a substantial age gap between the parties, the petitioner now being 45 years of age (having married at the age of 17) and the respondent is now 62.  Essentially counsel adduced evidence from her that there were three classes of allegations:
(a)        Financial matters
            The petitioner’s evidence was that the respondent had worked on a farm but had ceased work after a number of years on the basis that he was unfit and thereafter was in receipt of benefits.  The petitioner worked in a hotel as a kitchen-hand and earned in or around £100 or thereabouts per week.  She said that he did not give her any money from his benefits at all.  She claimed that she paid for food/telephone/clothes for the children/electricity and that he paid scarcely anything, save possibly for the rates and the mortgage repayments on their matrimonial home which she thought were essentially paid for by the State.  She alleged that he spent his money on abuse of alcohol and that when she asked him for money he refused.  As time went on she ceased asking him for money because he simply would never give any to her.  
(b)       Abuse of alcohol
            The petitioner alleged that the respondent regularly was drunk two or three times per week.  Sometimes he was engaged in all day sessions of alcohol abuse.  She alleges that each time he went out he participated in abuse of alcohol and often returned home in a drunken condition at 12 midnight or 1.00 am in the morning.  When he returned in this condition he was barely fit to walk and often drove his car home a distance of 5 to 6 miles from the local public house to the matrimonial home.  She said that when he came home she was subjected to verbal abuse, swearing at her, calling her a bastard/a whore and other vulgar and offensive names.
(c)        Sexual abuse
            The petitioner alleged that the respondent regularly committed acts of marital rape upon her.  She said that if she did not want to have sex, he would have torn her clothes off and had sex with her against her will.  She said this happened quite often and mentioned a regularity of 2 to 3 times per week.  She described how on one night when he tried to rape her, he had forgotten that her son was there and he came and struck the respondent.  She alleged that her husband was ripping her clothes when her son came in and struck her husband.  His son was then aged 18/19 years of age.  She said that on occasions he pulled off her clothes without damaging them and other times her clothes were damaged.  She claims that she told him that she did not want to have sexual relations with him and to leave her alone, but he just laughed.
Physical abuse
            Apart from the sexual abuse I have mentioned above, the petitioner alleged that the respondent often hit her on places where no-one would appreciate that she had been struck.  She alleges he struck her with his fists on the back and on her arms.  She said she never went to see a doctor or a social worker about these matters and did not make complaints because she did not think “that she should be doing that”.  She told me that she thought you never did make complaints about things like that.
            The petitioner then outlined a number of specific incidents:
(a)        In October 1997, her husband was in a public house in Fintona.  She claims that as a result of a telephone call she drove to the pub to collect him.  He was drunk and unfit to walk.  When she asked him for the keys of the car he called her a stupid bastard and said she was good for nothing.  He insisted on driving the car home himself.
(b)       In early November 1997 she recalls an argument between herself and the respondent about him coming home drunk.  He verbally abused her.  In the following days he did not speak to her.  
(c)        On 8 November 1997 she decided to leave him.  There had been a quarrel again because of his drinking.  She said that she had had enough and that she was leaving him.  She told me that she went to her daughter’s.  She alleged that the respondent simply laughed and said that she would be back.  She said that she went to her daughter’s in Fintona and was relieved to get away and vowed never to return.  She said that this was a build up over a number of years and now that the family was raised she left.  She claims she took nothing with her.  By that stage her son had left home (at 18 or 19 years of age) and her daughter left when she was 18.  She went on to say that she stayed with her daughter and that her husband came over periodically.  She said that she escaped from the house when she saw him coming.  She then indicated that she obtained a flat in Beragh, a few miles away.  
            She concluded her evidence-in-chief by indicating that she is presently living with a Desi Wilson in Scotland.  She alleged that she became friendly with him towards the end of 1997, although she had known him for some time before that.  She alleges that after she had formed a relationship with Mr Wilson, the respondent came to the house where she was living and said that she had gone too far, “the party’s over, some night you’ll hear a bang and that will be the end of you”.  She took this as an allegation that he would shoot her.  At that stage she was living with Mr Wilson.  She and Mr Wilson therefore departed for Scotland in 1998.
            In cross-examination the petitioner conceded that although she had six sisters and her mother living in relatively close proximity in the geographical area where she lived with her husband, she never made any complaint at all to them about his behaviour.  She did not go to the doctor and she called on evidence to substantiate or corroborate either the behaviour alleged against her husband or the effect that it had on her.  Moreover, she told me that she did not even tell her mother about what had caused her to leave her husband and that her mother apparently never asked her why she left her husband.  Her explanation for this was that she simply kept herself to herself and did not think it right to carry problems home to her mother.  I found this part of her evidence particularly unimpressive.  Protracted behaviour of this kind over a lengthy period of years would undoubtedly betray some telltale signs which I would have thought would have been picked up by those who knew her best eg. her sisters or her mother.  The frequency of the rapes alleged and the physical abuse would have undoubtedly have taken their toll on her appearance, her mental attitude and indeed her overall emotional state.
            The plaintiff went on the acknowledge that she was living with Mr Wilson in a country hotel in Scotland.  She initially told me that she was simply a kitchen hand there, but photographs were then produced to me which illustrated her and Mr Wilson advertising the services of the hotel.  It was perfectly clear from the photographs and advertisements that she played a much larger role in this whole enterprise than a simple kitchen hand.  It seemed to me that this was another example of where she was being less than candid in dealing with her relationship with Mr Wilson.  It also emerged that she had known Mr Wilson for some time before she left her husband and that the two of them had been attending a local dance class at the local British Legion Hall.  She then conceded that after she left her husband she had only stayed with her daughter for about two days and then moved to a flat on her own.  She certainly had led me to believe in her earlier evidence that she had stayed with her daughter a much longer time before moving in to a flat on her own.  In terms I suspect that I did not hear a candid account of her relationship with Mr Wilson either before she left her husband or after.  I watched her carefully when she gave her evidence about this matter.  I believe her relationship with Mr Wilson has played a much larger part in the breakdown of this marriage than she disclosed to the court.
            Mr Jones, who acted on behalf of the respondent, also drew attention to the fact that these very serious allegations of rape did not appear in her petition, albeit, that there was an allegation of general physical abuse.  I should add that in re-examination by her counsel it emerged that she had never disclosed any of these allegations of rape until close to the hearing when she had disclosed them prior to the start of the case to her counsel.  So glaring was this omission that I offered Mr Jones the opportunity to avail of an adjournment in order to meet the allegations, but since he had been told of them that morning he had taken instructions and was in a position to deal with them to emphatically deny them.  Nonetheless the absence of these allegations in this petition and their extremely late arrival into the case, particularly in light of the failure to complain about them to anyone else, including even her solicitor, persuaded me that this was but a bold attempt on the part of the petitioner to shore up her case with extravagant and unfounded allegations.  Her evidence about them, although tearfully given, was singularly unimpressive.
            At the end of her evidence I found the thrust of her account to be shrouded in uncertainty and I was already occasioned grave misgivings as to its truth.
            Mr Irwin gave evidence that the parties had been married for 27 years.  Initially he had worked on a farm, but for health reasons he had subsequently retired.  His wife worked as a waitress during the later part of the marriage.  He emphatically denied that he had ever been violent to her sexually or otherwise.  He denied that he drank to excess, although he admitted that he would indulge in the consumption of alcohol, perhaps 2/3 times per week.  However, he said his wife drank as much as he did.  His view of the marriage was that there were comparatively few arguments and certainly no violence.  He denied that he was mean with money.  From about 1991/1992 when he had retired on health grounds from work he was in receipt of incapacity benefit of about £120 per week.  He emphasised that during the course of the marriage the parties socialised with Sandra and Eric Halliday.  The children of the Hallidays came to stay from time to time with the Irwins and indeed on one occasion the petitioner had gone to the passing out parade of one of the Halliday children in the RAF in England.
            Far from being violent to his wife he depicted himself as a man who was caring for her needs and particularly described how on most nights when she returned from work he would obtain water and bathe her feet.  The petitioner had strongly denied this had ever happened.
            Mr Irwin’s account of the parting was that his wife said she was going to stay with her daughter for a break and that this had happened on irregular occasions in the past.  She gave no explanations to why she required a break at that stage.  Two weeks thereafter she told him she wanted to take a flat and indicated that she was not coming back.  He alleged that this was a bolt from the blue after 28 years of marriage.  He rejected her claim that she thereafter went to live in a flat in Beragh for any material time.  He said that he went to the alleged flat late at night in the village, but never saw any sign of her being there.  On the contrary he saw her car parked at Mr Wilson’s house.  He believed that she was living with Mr Wilson.  He recalled how subsequently he went up to speak to her at Mr Wilson’s house.  He denied the facts alleged by his wife and the threat which she accused him of making.  His account was that she simply closed the door when she saw it was him.  The final communication from her according to the respondent was within 4 or 5 months after she had left to go to Scotland when she wrote seeking a share of the former house.
            In cross-examination he said that he had done everything to get her to come back, but that now he realised it was all in vain.  Nonetheless he was not prepared to consent to a divorce essentially because of what she had done.  He was adamant he was going to make her await the passing of the five year period before she could obtain a divorce.  He emphatically denied any violence to her.  While admitting that he did consume alcohol two to three times per week he argued that he simply did not have the money to drink to the level that his wife alleged.  Whilst he conceded that money was tight and at times clothes were passed down from friends to their family, however, he said that when he was working he gave his money to his wife to pay the bills and that really the only real contribution she made from her own money was to buy clothes for herself, materials for the house and also the telephone bill.  He denied the specific incidents alleged by the petitioner and in particular denied using bad language to his wife.  Indeed the respondent said that when quarrels emerged he gave up and walked away allowing time for his wife to cool down.  He admitted that there had been an occasion when his son had intervened in the course of an altercation and had struck him.  He denied however that this was caused as a result of him attempting to rape his wife.  He was unable to remember the source of that argument, but certainly was clear that it had not arisen out of any attempt on his part to coerce his wife into having sexual relations.  He denied the incident alleged by his wife that he had gone to the house of Dessie Wilson with a stick or that he had told her that some night she would hear a bang.  His account of this evening was that he had gone to Wilson’s house in order to seek an explanation from his wife and to ask why she had told lies to him.  He asserted in cross-examination that the Halliday had regularly socialised as often as two to three times per month with himself and his wife over a number of years.
            I watched Mr Irwin carefully during the course of his evidence.  I do not doubt for one moment that there may well have been occasions when he over indulged in alcohol, that he engaged in bad language and that he may have exercised rather more than a banker’s caution from time to time in providing finance to his wife.  I have also no doubt having observed him that he was probably not an easy man to live with and that he may have been given, on occasions, to intemperate outbursts during the marriage.  Nonetheless I did not find in his evidence the marked implausibility that characterised the evidence of his wife and which has served to unhappily undermine her credibility in my mind.  Like many marriages it seems to me there may have been many ups and downs, but the petitioner is now seeking to exaggerate and embellish the latter category.
            The misgivings which I held about the petitioner’s evidence, were heavily underlined when I heard the evidence of the two witnesses called on behalf of the respondent, namely Mr and Mrs Halliday.  I found both of the witnesses, and particularly Mrs Halliday, to be very impressive.  They were both measured in the manner in which they gave their evidence and they did not display in either instance any degree of partisanship in favour of the respondent which would have served to negate the thrust of what they said.  Mrs Halliday, who has been a residential social worker for some years, told me that she had been friends with the Irwins since about 1972/1973 and certainly up to the 1990s had visited them regularly twice per month.  Thereafter the visits had been somewhat less coincidental with their children having grown up.  These visits had occurred on domestic occasions in their respective matrimonial homes and later at restaurants and bars.  She readily conceded that the respondent took drink, but no more and no less than the rest of the group (with the exception of Mr Halliday who apparently is now tee-total).  She had never witnessed either direct or indirectly any violence or aggression on the part of Mr Halliday.  She never observed any friction between Mr and Mrs Halliday during the many occasions on which they were together socially.  She asserted, and I accept, that she and Mrs Irwin were close friends and they talked together as such.  In the course of that friendship they exchanged intimacies, including personal medical histories and the like.  They discussed their families on a personal level.  Tellingly she recalled how when Mrs Irwin had been learning to drive she had complained that her husband had not shown enough patience with her.  But there had never been the slightest complaint during any of those intimate conversations which the two women shared about his drinking, his financial control or his alleged sexual or physical violence.  Mrs Halliday recorded that she felt the degree of the friendship was such that such intimacies would have been confided to her.  Moreover, she indicated that the two women often went swimming together or sunbathing together in swimming attire and she never on any occasion saw the slightest indication of a mark or bruise on her body suggesting that Mr Irwin had been violent to his wife.  I regard it as of some significance that she gave evidence of specifically seeing Mr Irwin washing and massaging Mrs Irwin’s feet on one or two occasions.  It stuck in her memory because she remembers saying to her husband that she wished someone would wash her feet.  She gave this evidence without any hint of exaggeration or pretence.  She has experience of working with families in their community where children and adults have been subjected to abuse and therefore she is not unfamiliar with those signs that often betray the unspoken abuse.  That experience, coupled with the intimacy of her friendship with Mrs Irwin, has served to persuade me that the complete absence of any indiciae of discord, distress or trauma emanating from the petitioner is extremely significant and points me to where the truth lies in this case.  Moreover, I also find it extraordinary that even after the petitioner had left her husband, she made no attempt whatsoever to contact Mrs Halliday her long term friend and to confide in her reasons as why their friendship was no longer to continue and as to the direction that her life was now taking.  In short if I was to accept what the petitioner has said, she found no receptacle for her distress – neither her mother, her sisters nor her intimate friend allegedly afforded an opportunity for the slightest hint of the unhappiness upon which she relies in front of me.  
            Mr Halliday, although perhaps less knowledgeable in terms of his assessment of Mrs Halliday, reiterated that his wife and the petitioner were very close and regularly talked together on the phone, in their private homes and of course on the social occasions when they met together.  He never saw the petitioner withdrawn or exhibiting reluctance to engage with her husband.  He also witnessed the bathing of her feet on one occasion by her husband.  I regard Mr Halliday as an experienced man of the world and an informed businessman who would not be blind to evidence of distress, whether physical or mental, in someone who was a close friend to his wife.  On a number of occasions he reiterated that he knew this petitioner and the respondent extremely well and I accept that he was being truthful with me when he said this.  He did not remember any evidence of any criticism emanating from the petitioner of her husband and he never observed her betray any hint of unhappiness with the relationship.  I have concluded that both he and his wife were too often in the presence, company and confidence of the petitioner and the respondent for neither of them to have observed the slightest hint of the problems related to me by the petitioner.
            My conclusions in this matter therefore are as follows:
1.         Making due allowance for the sensitivity of both the petitioner and the respondent I am not persuaded that this petitioner has in the balance of probabilities proved that the respondent has so behaved that it is unreasonable to expect his wife to live with him.  I find that the three primary allegations she makes namely, excessive drinking, financial impropriety and sexual and physical abuse have not been proven to the appropriate level.  I have had regard to the cumulative effect of the overall behaviour which is alleged, but again I do not find the evidence proven to the necessary standard.
2.         If the respondent had been as financially irresponsible or restrictive as alleged by the petitioner, I would have expected some veiled criticism of this aspect of their life to have surfaced with the Hallidays over the years or that some sign would have surfaced.  Similarly if there had been physical or sexual violence of a kind described over such a prolonged and regular period, I find it inconceivable that some sign of the distress or trauma would have inevitably surfaced during the many occasions that she shared the company of the Hallidays.  As I have indicated, I find particularly impressive the evidence of Mrs Halliday whom I believe is armed with the benefit of maturity and shrewdness and who would have undoubtedly noticed some sign.  Similarly, whilst I recognise that the respondent may have from time to time over indulged in alcohol, I am not persuaded that his abuse of alcohol was such as to make it unreasonable to expect the petitioner to reside with him.  Neither of the Hallidays ever saw any evidence of this on any of the many occasions that they socialised together.  I find it inconceivable that if they are telling the truth this man apparently confined his excessive drinking to times when they were not there.
3.         I have found it highly significant that not only did the petitioner fail to address the question of marital rape in her petition, but that she apparently did not make this allegation until very shortly before the hearing of this case.  It seems inconceivable to me that she would not have revealed allegations of this kind or of the excessive drinking or financial deprivation to any member of her family or her close friend, Mrs Halliday, either before or after the time she left her husband.
4.         It is my view that Mr Wilson has played a more prominent role in the breakdown of this marriage than has been disclosed to this court.
            It may well be a very unhappy postscript to this broken relationship that this court is not going to end this marriage at this stage.  The purpose of keeping them bound together in this marriage may be elusive.  Nonetheless I am constrained to act within the law and I cannot grant a divorce on the basis of this petition unless I am persuaded on the balance of probabilities by the evidence brought forward by the petitioner that she cannot reasonably be expected to live with the respondent.  I am not so persuaded and therefore she has satisfied me neither that her allegations are true nor that she could not reasonably have been expected to live with the respondent.  In all the circumstances I must therefore dismiss this petition.  The petitioner of course can bring a further petition once five years have elapsed from the date of separation but I cannot anticipate what may be a future and obvious conclusion to this marriage at this stage.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 ________ 
 
FAMILY DIVISION
 
PROBATE AND MATRIMONIAL OFFICE
 ________ 
 
BETWEEN:
 
ELIZABETH IRWIN
 
Petitioner;
 
-and-
 
ALFRED JOSEPH IRWIN
 
Respondent.
 
 ________ 

J U D G M E N T
O F
GILLEN J
 ________