B e f o r e :
LORD JUSTICE DAVIES
LORD JUSTICE SACHS
and
MR JUSTICE ORMROD
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PAMELA ANN SANTOS
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-v-
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CASIMIRO SANTOS
(otherwise Casimiro Santos Falagan)
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Ltd., Room 392,
Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London, W.C.2)
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Mr. M.P. PICARD (instructed by Messrs. Stanley Jarrett & Co.)
appeared on behalf of the Appellant (Wife, Petitioner).
Mr. ANTHONY EWBANK (instructed by the Queen's Proctor) appeared as amicus curiae.
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HTML VERSION OF JUDGMENT
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LORD JUSTICE DAVIES: Lord Justice Sachs will deliver the judgment of the Court.
LORD JUSTICE SACHS: This is the petitioning wife's appeal against the dismissal on the 15th July last by His Honour Arthur Cohen of her undefended petition for dissolution of marriage. The petition was brought under section 1 and section 2 (1) (d) of the Divorce Reform Act, 1969, that is to say, the petitioner alleged the irretrievable breakdown of the marriage as shown by the fact that the parties had lived apart for a continuous period of two years immediately preceding the presentation of the petition and the husband consented to the grant of a decree.
The appeal first came before the court, differently constituted, on the 11th November last. Then, after having heard the submissions of Mr. Picard for the appellant, it became apparent that it raised a very important issue as to the meaning of the words "living apart" in section 2 (1) (d). Does this relate simply and solely to physically not living under the same roof, or does it import an additional element which has been referred to in various terms - "absence of consortium", "termination of consortium", or an "attitude of mind" - phrases intended to convey either the fact or realisation of the fact that there is absent something which is fundamental to the state of marriage. It was accordingly decided to refer the case to the Queen's Proctor for enquiry and such assistance as he considered that he could offer to the court. The appeal came on again for hearing on the 16th December, when the Queen's Proctor was represented by Mr. Ewbank, who presented to the court the result of a great amount of research in a most learned and interesting set of submissions - for which we are much indebted.
At the outset it is as well to state that the issue on which the Queen's Proctor's assistance was sought was one to which the learned County Court judge was neither asked to turn his mind or in fact considered. On the contrary, the appeal has been put before us on the footing that the case was one in which he had concerned himself solely with physical separation and had throughout dealt with it on that footing - despite a passage in his discussions with counsel that referred to the wife's attitude of mind. It was also common ground before us that, as appears a little later in this judgment, if in law he was correct in adopting that approach, then he fell into error in refusing a decree - for he was never referred to section 3 (5) of the Act, which deals with periods of living together that ought not to be taken into account.
The facts as put before the trial judge were as follows:
The parties were married on the 30th April, 1960, being then respectively 25 and 19 years of age. The husband is a Spaniard, domiciled in Spain. They have one child, a boy, born on the 3rd December, 1963. There is no doubt on the evidence that the wife had been ordinarily resident in England for three years immediately preceding the commencement of the proceedings, though it was a somewhat close-run thing. The court had, therefore, jurisdiction to entertain the petition.
The evidence called on behalf of the wife, that of herself alone, before the learned judge was somewhat slender. This may have been due to the fact that her learned counsel, who considered that only physical separation was relevant, may have thought that her case was completely straightforward and that no difficulties could possibly arise in the way of her obtaining a decree. We shall attempt to summarise the evidence, such as it was.
The husband owns a hotel, a club and a discotheque at Sitges in Spain. And it would appear that during the marriage the parties lived largely in Spain. In October, 1966 (transcript 3"D") or November, 1966 (transcript 6''C") the wife left the husband and returned to this country. She left her son in Spain with his father. She offered very little explanation for this separation. Her only evidence on the point was (transcript 4"G-"):
"(Q) As far as love for your husband is concerned, do you still have any love for him?
(A) No, I do not.
(Q) How is it that you lost your love for your husband?
(A) Because he hurt me so much. He was running around with other women while we were living in Spain, just at the end of our marriage, while we were living together".
She gave no evidence at all as to any conversations or discussions which she may have had with her husband immediately prior to her departure or, indeed, at any other time.
About a month after her return to this country in the autumn of 1966, the husband came here and, it would seem, though there is no specific evidence about it, stayed with her in her flat. After that, for purposes not specified, she went to South Africa and eventually returned to this country on the 30th March, 1968. She gave no evidence at all as to where or for what purpose she went to South Africa.
It would appear (transcript 3"'F") that the husband was in this country when she returned from South Africa. At any rate, on her return she stayed with him in the same flat for some five days before he returned to Spain.
Then came a matter which troubled the judge a good deal. On three occasions since 1968 she has been to Spain and occupied the same room as her husband; for one week she actually occupied the same bed, though she denied ever having sexual intercourse with him since, it seems, 1966.
In the summer of 1969 she was at Sitges for about a month to see her son and during that time again shared a bedroom with her husband at his flat. She made a similar visit in the same circumstances in the summer of 1970. Then at Christmas, 1970, she again visited Spain. On this occasion she did not see her son; but she spent a week at Sitges as before and went on for a week to Andorra, where they shared a bed in a hotel belonging to a friend of her husband.
With regard to that last period she was asked by her counsel:
"What was your husband's feeling towards you during that holiday you had together at Christmas?",
and she replied:
"My husband thought it was a last chance to get me back, knowing that I would probably try to get a divorce this year. He thought it was his last chance to try to persuade me to go back with him. We had a lot of arguments during that holiday and I wanted to leave Spain, but I could not get out of Andorra because we were snowed in over Christmas and I had to stay. I had no choice."
The learned judge, as already indicated, was somewhat concerned as to the effect of those visits. He need rot have been, even if he rejected and disbelieved the wife's evidence as to the absence of sexual intercourse, had his attention been called to the provisions of section 3 (5) of the Act, which it was not. That sub-section, so far as material, provides as follows:
"In considering for the purposes of section 2 (1) of this Act whether ....the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken, of....any two or more periods (not exceeding six months in all) during which the parties resumed living with each other...."
It is that provision which has led Mr. Ewbank rightly to concede that the three periods during which the wife consorted with the husband in Spain, even if coupled with sexual intercourse, would have been no bar to the success of her petition provided that she was living apart from him for the rest of the relevant two years.
The learned judge gave no formal judgment. But it is apparent from the discussion that took place between him and counsel after the conclusion of the evidence that the main ground on which he refused a divorce related to the periods when the parties were together in Spain coupled with a conclusion that he had not been told the full truth by the appellant. The passage, already mentioned, which refers to the state of her mind will be considered later.
Section 1 of the Divorce Reform Act, 1969, provides that the sole ground upon which a petitioner can secure a divorce is by proving that the marriage has irretrievably broken down. But as a condition precedent to securing a divorce on that ground the petitioner has to satisfy the court of facts that come within one or other of the five heads specified in section 2 (1) (a) to (e). Once such facts are proved, a presumption - in practice a strong presumption - is raised that there has been a breakdown which is irretrievable; though it is open to the respondent under section 2 (3) to show that that is not the fact.
Under section 2 (1) a petitioner who, as in the instant case, relies on head (d) must satisfy the court "that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted".
When considering the meaning of ''living apart" in that head it is, of course, necessary to have regard both to the scheme of the Act as a whole and to any specific provisions dealing with that meaning. It is thus convenient at this stage to recite in full some of the further provisions of section 2 of the Act. Section 2 (1) commences:
"The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably" unless the petitioner satisfies the court of one or more of the following facts, that is to say...."
There follow the five heads, and in addition to head (d) there are to be noted head (c), "that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition", and head (e), "that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition".
Then section 2 (5) reads:
"For the purposes of this Act a husband and wife shall be treated as living apart unless they are living with each other in the same household".
It is perhaps as well to state at once that obviously the words "have lived apart" in head (d) and the same words in head (e) must have exactly the same meaning. Similarly it is germane to observe that head (c) - desertion - is one of three heads where fault on the part of the respondent has to be established, whilst heads (d) and (e) do not require fault to be imputed. It follows that care must be taken not to equate "living apart" with "has deserted" - a point to which we will return.
In the course of the argument before us reference was frequently made to the position of diplomats en poste in insalubrious foreign capitals, to those serving sentences in prison, to those in mental and other hospitals, and to prisoners of war - in the main, involuntary separations. None the less there are larger and no less important categories of separations which start voluntarily, such as business postings, voyages of exploration or recuperation trips when one party has been ill - all of which must also be looked at when endeavouring to determine what the legislature intended by the words "living apart".
As part of the fruits of that research already mentioned, there was fully and fairly put before us material enabling us in relation to those words to examine a considerable range of parallel Commonwealth statutes and also decisions upon them reached in Australia, Canada and New Zealand. In addition, Mr. Ewbank referred us to the comprehensive and helpful review by Professor Waddington in Volume 52 of the Virginia Law Review (1966) of the effect of comparable provisions in the legislation of a large number of individual States of the U.S.A. He also offered to quote to us judgments as to the interpretation of these provisions, but as the Review made it plain that there were considerable variations as between the laws of individual States, this additional offer was not accepted; the Review itself provided sufficient material to avoid the need of such further citation.
Commonwealth Statutes and Cases.
This wide survey enabled a notable fact to emerge. It became manifest that over the decades preceding our 1969 Act there had developed in the relevant Commonwealth countries in statutes relating to divorce a distinct pattern in provisions as to what has been termed '"non-fault" breakdown, though in other respects they in some ways differed from each other. The first of the statutes cited to us as providing a "non-fault" ground for divorce parallel to our head (e) was the 1945 Supreme Court Act Amendment Act of Western Australia (see section 2 (6)). There followed, inter alia, the New Zealand Acts of 1953 and 1963, the Australian Matrimonial Causes Act, 1959 (see section 28 (m)), and the Canadian Divorce Act, 1968 (see section 4). Each of those statutes provided as a ground for divorce "living apart" (New Zealand) or "living separately and apart" (Australia and Canada) for various periods. This country was the last to adopt this pattern - of which the Law Commission which drafted the 1969 Act can hardly have been unaware. Similarly the major decisions of the higher courts of those countries touching the meaning of the relevant words also conformed to an identifiable and substantially uniform pattern - a matter of which again those who drafted our Act cannot have been ignorant. (The only exception put before us was Kallwies v. Kallwies (12 Dominion Law Reports 206) a first-instance Manitoba decision of April, 1970 - after our 1969 Act had gone onto the books).
The relevant series of authorities commences with Main v. Main (1949) 78 Commonwealth Law Reports 687, a cogent decision of the High Court of Australia (Chief Justice Latham, Mr. Justice Rich, Mr. Justice Nixon and Mr. Justice McTiernan) on appeal from the Supreme Court of Western Australia. The next decision of weight was Sullivan v. Sullivan (1958 New Zealand Law Reports 912), in which five judges of the New Zealand Court of Appeal gave very full judgments in the course of which were cited persuasive judgments delivered in our own courts (e.g. The King v. Creamer 1919 1 King's Bench 654; Eadie v. Commissioners of Inland Revenue 1924 2 King's Bench 198; and Nugent-Head v. Jacob 1948 Appeal Cases 321) to which reference will be made herein later. Of the remaining Commonwealth cases brought to our attention Collins v. Collins (Tasmania; Mr. Justice Crisp ; 1961 3 Federal Law Reports 17); and Rowland v. Rowland (Ontario; Mr. Justice Donohue; 1969 2 Ontario Reports 615) can in particular be referred to with advantage.
The stream of authority ran uniformly and clearly in favour of mere physical separation NOT constituting "living apart" - as was specifically stated in those words in more than one judgment (e.g. Mr. Justice Hutchinson in Sullivan's case at page 924). The additional element to be imported was, as already indicated, referred to in various phrases. As regards the approach to be adopted when considering the existence or non-existence of that element we found very persuasive that approved by the High Court of Australia in Main v. Main (supra) in citing the observations of Mr. Justice Cussen in Tulk v. Tulk (1907 Victoria Law Reports 64); "In deciding whether there was at any specified date an existing matrimonial relationship, it is, I think, right to say that such a relationship does not end so long as both the spouses bona fide recognise it as subsisting, and in particular it does not end by reason of a separation brought about by the pressure of external circumstances such as absence on professional or business pursuits, or in search of health, or, it may be, even of pleasure. Marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and in private, correspondence during separation, making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist. The weight of each of these elements varies with the health, position in life, and all the other circumstances of the parties".
We also wish particularly to call attention to the way in which Mr. Justice Crisp in Collins v. (Cj3lJLLn_s (supra) summarised his view on the matter. After having examined a wide range of judgments, including those in Creamer's case (supra), Eadie' s case (supra) and Main v. Main (supra), he ended by saying (see page 22) in reference to the last-mentioned authority:
"That case really reinforces the conclusion to which I have already come that the court must look for a definite termination of the consortium before the physical fact of being apart can be said to constitute separation".
There was a certain amount of discussion in this court as to whether in the Commonwealth statutes there was any relevant distinction in law as between the phrase "living apart" in the New Zealand statutes and "living separate and apart" in those of Australia and Canada. We very much doubt that there is any such distinction, for the latter - a well-hallowed set of words already before section 4 of the Summary Jurisdiction (Married Women) Act, 1895 - is in our view merely an expanded version of the former, both phrases being the antithesis of "living together". (Compare the discussion of these and similar phrases by Lord Justice Denning, as he then was, in Hopes v. Hopes 1949 Probate 237). If, however, that view is not correct, then it will be observed that Mr. Justice McTiernan in Main v. Main at page 642 appears to attribute the physical element to "separately" and the mental element to "apart" - the word used in our 1969 Act; so if there is a distinction between the two phrases it would not assist Mr. Picard's general submission.
Decision in England
Turning now to the pre-1969 decisions of our own courts, whilst it can be rightly said that two of those cited to us concerned Revenue statutes and one the Larceny Act, 1916, yet here again there emerged a uniform stream of judgments which make it plain that physical separation does not of itself constitute living apart - or to be precise does not of itself preclude the parties being in a state of "living together". The series started with Bradshaw v. Bradshaw (1897 Probate 24; a Divisional Court decision), where Sir Francis Jeune, President, in relation to the words "separately and apart" made it clear that "cohabitation does not necessarily imply living together physically under the same roof".
It went on through The King v. Creamer (supra; in the Court of Criminal Appeal), which came before Mr. Justice Darling, Mr. Justice Avory, Mr. Justice Lush, Mr. Justice Shearman and Mr.
Justice Sankey - a strong court. There Mr. Justice Darling, delivering the judgment on a receiving case where the prosecution had to prove that the husband and wife were not "living together", said (page 659) "In determining whether a husband and wife are living together the law has regard to what is called consortium of husband and wife, which is a kind of association only possible between husband and wife. A husband and wife are 'living together' not only when they are residing together in the same house, but also when they are living in different places, even if they are separated by the high seas, provided the consortium has not been determined".
Then came Eadie v. Commissioners of Inland Revenue (supra), where Mr. Justice Rowlatt was also dealing with the words "living together", this time in a Revenue statute. He came to a similar conclusion, making specific reference to the cases of men away on public service and on business.
Finally we were referred to Nugent-Head v. Jacob (supra). There, albeit in relation to the somewhat obscurely worded provisions of the All Schedules Rules of the Income Tax Act, 1918, the House of Lords had to consider whether the wife, an American citizen residing in London, was "living with her husband", an Englishman who had at the relevant time already been overseas on military service for a continuing period of almost three years without home leave. She was held to be living with him, Lord Simon stressing (at page 324) that there had been "no rupture of matrimonial relations" and Lord du Parcq referring to the relevant words as "apt to describe a wife living in amity with her husband" even if for the time being separated from him.
No case was cited to us in which a view was expressed contrary to those just related: the authorities were all one way.
"Living Apart": prima facie meaning.
The cogent volume of authority to which we have been referred makes it abundantly clear that the phrase "living apart" when used in a statute concerned with matrimonial affairs normally imports something more than mere physical separation. This is something which obviously must be assumed to have been known to the legislature in 1969. It follows that its normal meaning must be attributed to it in the 1969 Act unless one is led to a different conclusion either by the general scheme of the statute coupled with difficulties which would result from such an interpretation or alternatively by some specific provision in that statute.
The 1969 Act: general scheme: questions for consideration.
Accordingly it is now appropriate first to turn to the general scheme of the 1969 Act and some of the special problems which can arise in relation to this question of "living apart". It is to be observed when looking at the picture as a whole that the provisions of section 1 (1) (a) (iv) of the 1965 Act (relating to incurable insanity coupled with continuous care and treatment for five years), having become virtually obsolete owing to changes in the management and treatment of the mentally ill since such provisions first appeared in the 1937 Act, were repealed; moreover no special provision was made for cases where a spouse became by reason of mental or other disability an inmate of some hospital, either permanently or for some very long period. Similarly there is no provision relating to very long prison sentences - a provision which in the United States has a place in the legislation of what has been described in the Virginia Law Review article as "a surprisingly large number of States".
These factors tend to highlight some linked problems bearing on the meaning of "living apart" which have caused us concern. If these words import an element additional to physical separation, can that element depend on a unilateral decision or attitude of mind; if so, must its existence be communicated to the other spouse; and in any event how can it be identified so that it is in practice capable of judicial determination?
Obviously this element is not one which necessarily involves mutual consent, for otherwise the new Act would not afford relief under head (e) in that area where it was most plainly intended to be available - where the "innocent" party adheres to the marriage, refusing to recognise that in truth it has ended despite the fact that the "guilty" one has been living with someone else for very many years. So it must be an element capable of being unilateral: and it must in our judgment involve at least a recognition that the marriage is in truth at an end - and has become a shell, to adopt a much-used simile.
If the element can be unilateral in the sense of depending on the attitude of mind of one spouse, must it be communicated to the other spouse before it becomes in law operative? That is a question that gave particular concern in the course of the argument. There is something unattractive in the idea that in effect time under head (e) can begin to run against a spouse without his or her knowledge. Examples discussed included men in prison, in hospital, or away on service, whose wives, so far as they knew, were standing by them: they might, perhaps, thus be led to fail to take some step which they would later feel could just have saved the marriage. On the other hand, communication might well be impossible in cases where the physical separation was due to a breakdown in mental health on the part of the other spouse, or a prolonged coma such as can occasionally occur. Moreover, need for communication would tend to equate heads (d) and (e) with desertion - which comes under head (c) -something unlikely to be intended by the legislature. Moreover, bowing to the inevitable is not the same thing as intending it to happen.
In the end we have firmly concluded that communication by word or conduct is not a necessary ingredient of the additional element.
On the basis that an uncommunicated unilateral ending of recognition that a marriage is subsisting can mark the moment when "living apart" commences, "the principal problem becomes one of proof of the time when the breakdown occurred'' - as was stated in the Virginia Law Review article (page 70). How, for instance, does a judge in practice discharge the unenviable task of determining at what time the wife of a man immured long-term in hospital or one serving a 15-year sentence changes from a wife who is standing by her husband (in the sense of genuinely keeping the marriage alive till he recovers or comes out) to one who realises the end has come but visits him merely from a sense of duty arising from the past? Sometimes there will be evidence such as a letter, reduction or cessation of visits, or starting to live with another man. But cases may well arise where there is only the oral evidence of the wife on this point. One can only say that cases under heads (d) and (e) may often need careful examination by the first instance judge and that special caution may need to be taken. In some cases, where it appears that the petitioning wife's conduct is consistent with a continuing recognition of the subsistence of the marriage, automatic acceptance of her uncorroborated evidence inconsistent with such conduct would not be desirable. On the other hand, there can be cases where a moment arrives as from which resumption of any form of married life becomes so plainly impossible (e.g. on some grave disability becoming known to be incurable) that only slight evidence is needed - for the nature of the breakdown is so patent.
The difficulties arising from some of these problems at one stage led to hesitation as to whether after all "living apart" in this particular Act might not refer merely to physical separation. But there are at any rate two cogent reasons against holding that the standard meaning does not apply. Firstly, in any statute in which those words are used the same problems are normally inherent to a considerable degree - and it cannot be said that they have such a special impact in the 1969 Act as to lead to the inference that the standard meaning is negatived. Secondly - perhaps more importantly - there are the injustices and absurdities that could result from holding that "living apart" refers merely to physical separation; these in our judgment outweigh any hard cases or difficulties that can arise from the standard interpretations.
One category under head (e) is exemplified by the case of a long-sentence prisoner whose wife has, with his encouragement, stood by him for five years - only for her to find that when he comes out he files a petition for divorce relying on ground (e). But the more usual categories relate to men who could unjustly find time running against them through absences on public service or on business in areas where, out of regard for the welfare of the wife or the children of the family, the former remains in this country; particularly hardly could this bear on men whose home leave did not for some years total the six months referred to in section 3 (5).
Turning from hardships under head (e) to absurdities under head (d), read in conjunction with section 3 (5) of the Act, it is plain that in cases arising under the latter head the spouses can spend up to 20 per cent, of their time together without interrupting the continuity of the separation (i.e. six months in two years and six months). Thus if living apart means mere physical separation, a man who got home on leave for less than 20 per cent, of the two to two and a half years immediately preceding the filing of the petition would be in a position to satisfy the court under head (d) even though he and his wife had been on excellent terms until they had a row on the last day of his last leave. As petitions under head (d) are normally undefended there would be no evidence to rebut this presumption that the breakdown of the marriage was irretrievable and the decree would be granted. Unless - contrary to our view - the Act intended to permit divorce by consent simpliciter such a result would be absurd. On the contrary the tenor of section 2 (1) is to ensure that under heads (c), (d) and (e) a breakdown is not to be held irretrievable unless and until a sufficiently long passage of time has shown this to be the case.
Accordingly in our judgment there is nothing in the scheme of the Act as a whole nor in the problems arising under it to negative the standard meaning of the relevant words.
Section 2 (9) of the 1969 Act.
The only specific provision of the Act upon which Mr. Picard felt able to rely if his general submissions failed, was section 2 (5), the terms of which have already been recited. Those terms, he contended, should be interpreted as making it clear that no other element than physical separation could be taken into account under grounds (d) and (e).
It is unfortunately by no means plain what exactly the legislature had in mind when enacting this sub-section - nor even what is its general objective. Three points on its phraseology are however to be noted. Firstly it does not use the word "house", which relates to something physical, but "household", which has an abstract meaning. Secondly, that the words –"living with each other in the same household'' should be construed as a single phrase. Thirdly, it specifically refrains from using some simple language referring to physical separation which would achieve the result for which Mr. Picard contended: on the contrary, use is again made of words with a well-settled matrimonial meaning - "living together", a phrase which is simply the antithesis of living apart, and "household", a word which essentially refers to people held together by a particular kind of tie, even if temporarily separated and which has been the subject of numerous decisions in matrimonial as well as in other cases.
Whatever the object of this sub-section, the combination of the first and third points makes it plain that it does not produce the result which has been urged on behalf of the wife.
We are however inclined to think that its object is simply to ensure that the long drawn out conflict - so fully and comprehensively discussed in Naylor v. Naylor (1961 Probate 253: Divisional Court) - between on the one hand the series of cases exemplified by Smith v. Smith (1940 Probate 49) and the views expressed by Lord Justice Denning (as he then was) in Hopes v. Hopes (supra at page 236), and on the other hand the series started by Evans v. Evans (1952 2 Queen's Bench 627: Divisional Court) should for the purposes of the 1969 Act be conclusively resolved in favour of the former. Thus the sub-section makes it clear beyond further debate that when two spouses are living in the same house, then, as regards living apart, a line is to be drawn in accordance with the views of Lord Justice Denning and they are to be held to be living apart if not living in the same household. If the sub-section has some other meaning it will, incidentally, give rise to many problems, as for instance where husband and wife are in different arms of the Services and there is for some time no matrimonial home.
Conclusions.
It follows that in our judgment there is nothing in the general scheme of the 1969 Act nor in any of its specific provisions which results in the words "living apart"- not having in that Act the standard - one might say settled - meaning which they normally have in statutes relating to matrimonial affairs. Therefore "living apart" referred to in grounds (d) and (e) is a state of affairs to establish which it is in the vast generality of cases arising under those heads necessary to prove something more than that the husband and wife are physically separated. For the purposes of that vast generality, it is sufficient to say that the relevant state of affairs does not exist whilst both parties recognise the marriage as subsisting. That involves considering attitudes of mind; and naturally the difficulty of judicially determining that attitude in a particular case may on occasions be great. But the existence of such a difficulty cannot be in point, for heads (d) and (e) are not the only ones in which the identification of an attitude of mind is required: indeed the whole concept of a breakdown being "irretrievable" may involve coming to conclusions on attitudes of mind, when an issue is raised under section 2 (3).
We have deliberately refrained from speaking unequivocally of "all cases" (as opposed to ''the vast generality of cases") arising under heads (d) and (e) for the same reason that we have not sought to attempt any definition either of "consortium" or of "absence of consortium": similarly we have gone no further than to specify the attitude of mind that precludes its being said that the parties are living apart. This is because there may arise wholly exceptional cases: to take an extreme and one hopes a particularly unlikely example, there may one day fall to be dealt with a case where some misfortune has caused both spouses to be of unsound mind for more than five years. Such cases can only be dealt with when they arise - and it can then be decided whether resort can be had to inferences to be drawn from the hopelessness of the situation in which the parties find themselves (cf. Main v. Main at page 683).
Returning to the facts of the instant case, it has at the outset of this judgment been mentioned that the learned trial judge was never asked to address nor indeed did address his mind to the real issue for consideration. It is true that after the close of the evidence he said of the wife that "she had not made up her mind whether she wanted to live separate and apart or not, and I do not think she had really made up her mind until probably after this last visit when she found the thing was quite hopeless". But in all the circumstances it does not seem fair to her to treat that observation as an adverse determination of an issue he never considered. So we have decided to order a new trial, which should, as is usual, come before a judge of the High Court.
It will be essential in this, as indeed in all cases under heads (d) or (e), where a physical separation starts on a voluntary basis, for the judge to examine closely exactly how the separation originally came about; what the petitioner's attitude to the marriage then was; and whether he is satisfied that then or at some and what later stages she ceased to recognise and continued to cease to recognise the marriage as subsisting, but on the contrary regarded it as in truth a mere shell, intending never to return to her husband.
It is clear from our examination of the issues inherent in petitions founded on heads (d) and (e) that the bulk of such cases need careful judicial scrutiny and ought not (as might else be suggested) to be determined on affidavit evidence or otherwise than by a judge. It has sometimes been said that the object of the Act is to make divorce easy, but that hardly seems correct when in some instances it has made it more difficult - as witness head (a) and the reconciliation provisions of section 3. It is more appropriate to say that whilst in practice additional ground: for divorce are provided by the 1969 Act, yet it is designed to assist maintenance of marriages other than those reduced to a mere shell. Whilst sympathising from experience with those judges who have to take the undefended list, it is still the case that the legislature in our judgment intended the procedure before them to involve judicial care as opposed to rubber-stamping.
LORD JUSTICE DAVIES: Then, Mr. Picard, the order of the court will be: Appeal allowed: order a re-hearing by a High Court judge; and the case will be transferred to the Family Division.
MR PICARD: If your Lordship pleases.
LORD JUSTICE DAVIES: Now obviously this lady wants to get on with this. It has been held up. It is desirable that this re-hearing should take place as soon as possible. I do not know - I do not know whether Mr. Justice Ormrod does - the technicalities. Does it have to be re-set down?
MR PICARD: My Lord, I think it may have to be. But it can be done very quickly, if your Lordships have ordered, as you have, the transfer to the High Court and having regard to what your Lordships have just said.
LORD JUSTICE DAVIES: We can go further and say we think that this should be re-heard as soon as possible. I understand that some of the judges of the Family Division — I say this without any disrespect to my brother Ormrod! — are not wholly employed all the time.
MR PICARD: Having regard to what your Lordship has just said I am sure that it can be heard very quickly.
LORD JUSTICE DAVIES: Are you legally aided?
MR PICARD: No, my Lord. I wonder whether, if your Lordship would make this "Costs in the cause", the wife will be able to recover any of this from the husband.
LORD JUSTICE DAVIES: Well, it is not the husband's fault.
MR PICARD: It is not the husband's fault.
LORD JUSTICE DAVIES: No; I do not think we will make any order as to costs.
(Appeal allowed. Order below set aside. Re-hearing ordered before a High Court judge, as soon as possible. Case transferred to Family Division. No order as to costs)
