B e f o r e :
LORD JUSTICE SINGLETON
LORD JUSTICE BIRKETT,
and
LORD JUSTICE HODSON.
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(Transcript of the Shorthand Notes of The Association of
Official Shorthandwriters, Ltd., 2, New Square, Lincoln's Inn, London, W.C.2,
and Room 392, Royal Courts of Justice, Strand, London, W.C.2.)
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Counsel for the Appellant: MR L. B. STEPHEN,
instructed by Mr Thomas Boyd Whyte.
Counsel for the Respondent: MR EMRYS ROBERTS,
instructed by Mr Norman Barwick.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
LORD JUSTICE SINGLETON: This is an appeal from an Order of His Honour Judge Gamon sitting as Commissioner in Divorce at Durham on the 10th January of this year.
The learned Commissioner had before him the Petition of Archibald Duncan Combe which prayed that a Decree might be granted to him to dissolve his marriage.
Mr Combe had marred his wife, Dora Combe, on the 18th April, 1945. they were both then in one or other of the Services, and the husband was away a good deal. On the 26th December, 1946, the wife gave birth to a male child, and it appears clear that the husband was not the father of that child; he was abroad at the time when the child was conceived; but on his return he forgave his wife and condoned her adultery. They lived together for some time after that, and on the 30th December, 1947, a child of the marriage, a girl, Joyce, was born. They lived latterly, after he was discharged from the Services, at a flat in Plumstead, but they did not get on very well together, and on or about the 28th February, 1949, the wife took her two children from that address to her parents home near Durham. She went with the approval of her husband, and there is no doubt that it was said at the time she was going for a holiday. The husband said she was going for a fortnight's holiday; but the day before she started the husband have her the emergency ration certificates for a month.
When she was about to commence her journey, her husband gave her a railway ticket to Durham. The children were under the age at which fares are payable. The ticket which the husband gave her was a single ticket. It is surprising thing that if someone is going away for a fortnight's holiday or for a month's holiday, a monthly return ticket is not provided, because at that time the buying of a monthly return ticket saved a good deal of money; but it is the fact that the husband bought a single ticket for his wife. He said that that was all the money he had, or he could not afford to buy a return ticket. It was said that while she was away she was to live with her parents and she was to be given, or to be sent, a sum of money each week for her necessary expenses which really were food for herself and for the children. The husband said he sent her 35s. a week for that purpose; she said the sum of 30s. a week, not 35s., but the first week she went she had to send the husband £1; she had difficulty in sending the pound, and the last week before trouble arose she said the husband did not send the weekly money although he did send her £3, or as he said, £3.10s. 0. for the purpose of her purchasing the return ticket for herself.
She did not return to the husband, and it is alleged in paragraph 8 of the Petition:
"That on about the 28th day of February, 1949, the Respondent deserted the Petitioner in that she on the said date without cause and without the consent of the Petitioner withdrew from cohabitation with the Petitioner at 10A, Kelham House, Banfield Estate, Plumstead, in the County of London, with the intention of bringing cohabitation between the Petitioner and the Respondent permanently to an end."
Mr Stephen, in opening this appeal submitted that desertion took place either at that date or at the later date at which she ought to have returned to the matrimonial home, but failed to do so; or, as he said, declined or refused to do so; and the submission made upon behalf of the husband is that her desertion in the year 1949 revived the adultery of 1946 which had been condoned; and upon those issues the husband sought a Decree of dissolution of his marriage on the grounds of the wife's adultery.
The first question to be ascertained is: Was the wife in desertion in the year 1949? We have all the evidence given before the learned Commissioner read to us, and we have seen, too, certain letters and a telegram which passed between the parties. I should like to say that we have been greatly helped by the submission on behalf of the husband made by Mr Stephen who has put his case very clearly and has faced the difficulties which were in his way. Next, I would say that in a matter such as this, great value must be attached to the view of the learned Commissioner who saw and heard the witnesses; he has formed his views, and we ought not lightly to depart from his findings of fact in a case of this type on which so much depends upon the view taken of the witnesses by the judge who sees and hears them.
The husband's case was, "My wife left me; true, she said she was going for a holiday. We had not been getting on very well, but she ought to have returned to me, and certainly she ought to have returned when I sent her the railway fare." The wife's case was, "No: my husband did not want me back; he kept me short of money, and when he sent £3, the return fare, I was in debt. I could not leave without paying my debts, and I had not enough for the fare. He never sent me anything more, and he did not at any time write me a nice letter asking me to come back; I know he did not want me back."
On some date before this Petition was heard, there were proceedings in the Magistrates' Court at Durham, and the husband, in the course of his evidence, was asked as to what happened there.
The Commissioner said to him:
"Both you and your wife were there on the 27th July, 1949, when the Magistrates came to the conclusion it was not a question of desertion, was anything said as to coming back again?
(A) Yes."
It was the wife's summons for desertion, and this is the husband's account of what was said before the Magistrates upon this summons, and I have seldom read a better account given by a man in this position of the happenings in a Magistrates' Court as far as I am a judge. He said:
"The Magistrate asked my wife if she wanted to live with me any more, and she says: No, I don't think so. Can you give a good reason; and she said: It is the things he does, he will sit and read the paper and let the fire go out. Well, he said: husbands are likely to be absent-minded, I am; is there anything else he does? She says: he pats my hair and says it is a style he does not like, and it annoys me. So the Magistrate asked me: is there any reason why you do not wish to live with your wife, so I told him there was. He said, Why? I said, because I have done enough for her. What do you mean, you have 2 children. I said, that is one of the troubles, the first child is not mine, so he said: I see. He said, what happened? I said, she resents me acting as a father should the little boy be naughty."
This is the description of the Police Court hearing, and it is quite easy to see what happened. The Justices made no Order in favour of the wife, but, by agreement, payments were ordered under the Guardianship of Infants Act of £1 in respect of each of the children, and the Magistrates hoped that husband and wife would come together again, but they did not.
Some time later, as I shall show, the wife wrote a letter to her husband asking him to try again. The date of that letter is the 25th October, 1949, and it says:
"Dear Duncan, I am willing to make another start if you are. But for the children's sake I hope you will think it over. I hate to thing of John and Joyce growing up without a father. Dora."
No doubt that is what the Magistrates hoped would happen, but the husband's reply to that was by telegram:
"Re your letter most emphatically no. Once bitten twice shy. Will gladly relieve you of Joyce if willing."
The husband had had a finding of the Magistrates in his favour on her desertion Summons, and he said "Once bitten twice shy"; he was not going back to her. As a matter of fact, before that time he had sold up the contents of the flat in London and had given the flat up; or, perhaps I should say, he had divided up the contents of the flat.
In those circumstances the wife took out another Summons before the Magistrates, and they made an Order in her favour on the ground of desertion granting her 10s. a week. That is, of course, in no way binding upon the learned Commissioner who had to consider the issue which I have stated. Before him the husband gave evidence, and the husband's evidence was supported by that of a neighbour who said she had had a talk to Mrs. Combe before Mrs. Combe went on this holiday to Durham, and Mrs. Combe had been very unhappy and had said, "If I do go I shall not come back." The witness gave the impression that Mrs. Combe did not like London. Upon that evidence it is said the husband had established a case that his wife went for a holiday; she was provided with money for the train faire which he sent to her to come back; she did not come back and her failure to do so is desertion and a matrimonial offence. Against that the wife herself gave evidence, and she said her husband kept her short of money all the time. She was asked,
"He told you to go home?"
(A) Yes. For a fortnight at first and he went and got the tickets for a month, and he told me just a fortnight."
She was given a single ticket and all she had in her purse was 2s. she said he sent her 30s. a week fairly regularly, and she said that the arrangement was that she was to save out of the money he sent her for her return fare. "But he asked me for £1 when I got home and I sent him £1." She said when the money was sent to her she had debts to pay.
The husband's letter of the 19th April, 1949, is:
"My Dear Wife, I thought I'd better give you advance warning that I am sending you the full fare plus a few shillings for extras (£3 in all), this coming week-end, but no wages. You'll get your allowance when you arrive here. Please let me know what time you will be leaving Durham, so that I can make arrangements to meet both you and the children at King's Cross. Your Husband, Duncan."
Hardly a pressing invitation to return; there is nothing very kind about it. About that time there is a letter from the wife:
"Dear Duncan, I bet you thought you were clever sending my money as late as you did. So your dear Mother is coming and who do you think is going to look after them (not me) I think your mother should have asked me if they could come, where do you think they are going to sleep. If you don't send me any money how can I pay for my milk (Fortnights) 12s. 10d. and 5s. 6d. for Chesterlestreet. By the way I want to know before I come back where you got the money for my fare and how you are going to pay it back."
I draw attention to the fact that that letter does not disclose any refusal to return. It may be that the wife was not very pleased at the idea of his mother along with someone else coming to the flat – who was going to look after them; where were they going to sleep? They were pressing questions for her. She put at the end of the letter, "I want to know before I come back where you got the money for the fare." That is not saying "I am not coming back", but "Before I come back I want to know something."
Then, as I have said, a good many months later, after the first Police Court proceedings, she wrote him the letter asking him to make a new start, and he sent her the telegram definitely refusing to do so.
Whilst she was being cross-examined, Mrs. Combe broke down in tears, and Mr. Stephen, considerate as Counsel always are, said he did not thing he could go much further in his cross-examination, and the learned Commissioner agreed with him. I do not think he could have got much further; he had brought out his points, as he has done here; so the Commissioner had to decide the case upon that evidence, and his conclusions are stated by him, according to the transcript before us, in this way:
"Mr. Stephen wanted to say if she went away with the intention of deserting the husband at that time, the mere fact she may have changed her mind would not affect the case, and there may be substance in that, if I was satisfied she had a desire to desert. Of course Mrs. Giles may be quite right, that she said if she went she would not come back, but you cannot take those things, they are not always meant. Where I thing the Petition fails – and I think it does fail – is, I do not think, taking the evidence on the whole, the husband did a reasonable thing about sending her back. I think he was glad to get rid of her, and that is the sad thing about the marriage, but the idea of giving the wife a single ticket, and telling her to go for a month, does not show any desire he should have her back, and I think he did keep her definitely too short of money when she was there, and I am satisfied, when she got the £3, she was in debt, and that he had not been treating her kindly, I do not think I am satisfied, on the evidence I have had, that there was any settled intention to desert on the part of the wife when she went home, and that she did go merely for a holiday."
This is a finding of fact of the learned Commissioner that the wife went for a holiday, not with any intention of deserting her husband at that time.
The learned Commissioner added:
"Of course he writes a letter later on. If he had then sent her a reasonable amount to get her back, and showed enthusiasm to get her back, then I think she would not have been justified in staying, but he never did send her a reasonable amount, and in the circumstances I think the mere fact he sold out when he says in chief he did, after only something like three months, he had made his mind up he did not want her back, and told the Magistrates so, so it was rather he who was the deserting party then she, so in the circumstances the Petition must be dismissed on the ground the adultery has not been revived by sufficient misconduct on the part of the wife to justify me in saying it has been revived, and therefore the Petition will be dismissed."
Mr. Stephen complains of the passage in which the Commissioner said that it was rather the husband who was the deserting party, and it may be that there is some ground for that complaint. It may be the true position is that the husband did not want the wife back very much, and the wife was not very anxious to go back; but for him to succeed on his Petition he must show a matrimonial offence on the part of the wife at the time which he alleges; that is, in the year 1949; and if it is said the matrimonial offence is desertion it is for him to show an intention on the part of the wife to bring cohabitation permanently to an end. That is something which can be decided by the Judge or Commissioner who sees and hears the witness, and the view which the learned Commissioner took was that it was not proved that this wife did intend to desert her husband in the sense in which I have used the word at all. He expressed the view that if the husband had sent his wife sufficient money, including the railway fare, it would have been her duty to return; with that I agree; but if the husband acts, as the learned Commissioner finds he did, and kept the wife short of money so that when he sent the £3 there was nothing like that left for the railway fare, then I think he is justified in saying it is not shown that the wife deserted her husband; in other words, I am not satisfied that the wife was showing an intention to break up the home permanently by reason of the fact that she did not return to it then. The husband, the Commissioner finds, did not act reasonably; he kept her short of money. I add that for myself I think the letters which passed show, not an intention on the part of the wife to desert her husband, but show rather that at one time she was stalling or putting off the day. At a later stage she did that which a wise woman sometimes does and asked her husband to take her back and try to make a go of it again. His reply was definitely conclusive. I think probably Mr. Stephen is right in his submission that if prior to that time the wife had shown definitely she intended to leave her husband permanently and to break up the home, that October letter would have been too late, but on the findings of the learned Commissioner that position never arose.
Mr Stephen, on behalf of the husband, has taken every point which could be taken on his behalf, but he has not satisfied me that the learned Commissioner erred in any sense whatever in the findings which he made; nor has he satisfied me that on the learned Commissioner's findings there ought to have been a Decree in favour of the husband. I think the only course which this Court can take is to say that the Appeal be dismissed.
LORD JUSTICE BIRKETT: I agree and have nothing to add.
