England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMLY DIVISION
EXETER CROWN COURT
(HIS HONOUR JUDGE H.G. POLSON, Q.C.)

		Royal Courts of Justice.
		12th March 1975

REVISED

LORD JUSTICE CAIRNS: This is an appeal from a decision of his Honour Judge Poison, sitting as an additional Judge of the family Division of the High Court in a divorce suit. The wife sued for dissolution of marriage under what is now Section 1, subsection (2)(b) of the Matrimonial Causes Act, 1973, namely on the ground that the marriage had irretrievably broken down, the husband having behaved in such a way that the wife could not reasonably be expected to live with him. The husband defended the suit, denying the alleged behaviour, but not cross-praying. The Judge held that the behaviour proved was no more than a wife could reasonably be expected to put up with, and he dismissed the petition.

The wife appeals, contending that the Judge applied the wrong test, inasmuch as he said that the test was objective and not subjective, that he was wrong in saying that the conduct complained of must be serious and convincing and it must go beyond what is involved in taking the rough with the smooth, and wrong in saying that after 21 years of marriage it was too late for a wife to complain of her husband's personality. It is also contended that on the facts the Judge was wrong to dismiss the petition.

The marriage was on the 14th June, 1952 when the husband was 36 years of age and the wife 23. They have a daughter, Jane, now 17 years of age, and a son, Derek, who is now 12. The husband was an airline pilot. Re had been in the Royal Air Force during the war, and had a distinguished record as a pilot there; and after the war he had served as an airline pilot for a number of years up to 1970 when he had to retire because of eye trouble, and he is greatly to be pitied for having his career terminated in that way at the age, I think, of about p4* He had no pension, but he had some £20,000 worth of capital.

After his retirement he and his wife went for a time to Ireland; I imagine his origins were Irish because he served for a time in Aer Lingus. In the course of his work as an airline pilot he and his wife had spent a good deal of their time abroad, living in a number of different places. After the retirement in 1970 they had to find somewhere fresh to live; and having lived, as I have said, for some time in Ireland, they came to England to find a suitable place. Ultimately, in September, 1971, they took a flat at 53 Salterton Road, Exmouth, for which the husband paid from his capital with the assistance of an overdraft from the bank secured on his share certificates. The ground floor flat at this address in Exmouth was secured at a price of something between £3,000 and £6,000, and the husband considered it a bargain at the price. There were considerable decorations and some alterations to the structure made by the vendors of the flat; and in that flat the spouses and their two children lived until the 12th October, 1973, a period of just over two years, when the wife left, taking the children with her; and she presented her petition for divorce on the 11th December, 1973.

A very large part of the wife's complaint was that during most of the time that they were living in the flat the husband was engaged in certain works under the floorboards of the flat involving the floorboards being up in part of the living room and in other rooms in the flat from tiMe to time, cement being mixed in the living room, the lavatory door having been removed for some reason to assist in the work the husband was doing, that lavatory door being off for some eight months. He removed some 30 tons of builders' rubble from underneath the floorboards, and deposited that rubble in the garden, which was otherwise neglected. A further matter of complaint was that throughout the time that the wife was living there with her husband there were no proper curtains in any of the rooms in the flat.

So far as this work under the floor is concerned, the reason for it was that the husband discovered that there was dampness under the floor and the joists were affected by this dampness. It was very unfortunate that that matter was not attended to before the flat was finally bought, a matter which could much more conveniently have been dealt with by some arrangement with the vendors as other forms of alteration and decoration were, but it was not. The husband took no advice as to how this dampness could be dealt with. He proceeded himself to do it in what must be supposed he thought was the best way of doing it in the circumstances; but he was not an expert in these matters, and he certainly was not by training a builder's labourer, and it was the work of a builder's labourer which to a large extent he was doing, carting out bucket by bucket this rubble from underneath the floorboards and depositing it outside. As a result, the flat was in such a condition during most of the time that the family were living there that it was an embarrassment to have visitors brought to it; and there was the particular embarrassment not only for visitors but for the wife and her daughter of the lavatory door being off. When they wanted to use it at a time when the husband was working under the floorboards, there had to be some communication to avoid his coming up when the lavatory was in use, and that kind of thing.

One of the wife's complaints was that the husband failed to keep himself clean. There is no doubt that he got pretty dirty and his clothes got pretty dirty in the course of this work he was doing. The wife said he hardly ever bathed himself; the husband said he bathed once a week. The Judge made a specific finding that he was a reasonably clean man, and I do not think that that particular finding is open to review in this court.

Another complaint made by the wife is that the husband failed to provide proper maintenance for herself and the children, and after they left he provided no maintenance for them at all. As to that, the evidence was that the husband earned hardly anything during these two years. There was a few months when he was employed part-time as a petrol pump attendant, earning only £5 a week; and there was evidence that he had tried to get other jobs without success. It no doubt was not easy for a man in his late fifties to get work, but apart from his eye trouble it would appear that he was a healthy man, and one would have thought that even if he had taken some quite modest employment, say, even the work of a petrol pump attendant, and earned money with it to pay people to come and do any work that was necessary under the floorboards, it would have avoided having his family live in the conditions in which they wore living during this time. As for the actual shortage of money, there is nothing to show that there was any particular hardship. The amount of housekeeping money which the wife was getting was not very great (never more than £12 a week), but I do not think that that is an important part of the picture here.

Another matter which has been referred to is that the husband in 1972 put the whole of his capital assets into the purchase of an annuity for his own life. That, I think, might have been made a matter of complaint, but in fact it is not included in the Particulars on the Petition, so I therefore say no more about it.

There is one further matter of a different character which I do regard as serious indeed, and that is that after the parting the husband wrote a letter to the wife's solicitors in which he cast doubt upon the paternity of the two children, a suggestion in which it has never been sought to say there is the smallest truth.

As to whether the learned Judge applied the right test under this paragraph, in so far as he quoted the words of the marriage service that a husband or wife was taken for better or for worse, in my opinion he was in error. These matters are to be judged not by the language of the Prayer Book but by the language of the Statute, what exactly is to be understood by his observation that the test was objective and not subjective may be open to some question. The right test is, in my opinion, accurately stated in Rayden, Volume 1, page 216, in the latest edition: "The words 'reasonably be expected' prima facie suggest an objective test. Nevertheless, in considering what is reasonable, the Court (in accordance with its duty to inquire, so far as it reasonably can, into the facts alleged) 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". And if authority is required for that proposition it is to be found in the speech of Lord Reid in Gollins v. Gollins, (1964) Appeal Cases, page 644; where he said; "A judge does, and must, try to read the minds of the parties in order to evaluate their conduct. In matrimonial cases we are not concerned with the reasonable man as we are in cases of negligence, ^e are dealing with this man and this woman and the fewer apriori assumptions we make about them the better". For my part, I do not feel that in assessing the conduct in this case it is necessary to take into account any special characteristics In the character of the husband or the wife.

There was a degree of conflict of evidence between the spouses here as to the extent to which the comfort and convenience of the home was affected by the work that the husband was doing; and the Judge unfortunately made no specific findings as to which evidence he preferred, but there is no indication that he did not, broadly speaking, accept the picture as I have described it, and he went on to characterise that behaviour as trivial. There I cannot follow him. Over these two years this house was during most of the time seriously inconvenienced by what was happening; and it had not come to an end: it is evident from what the husband said in the course of his evidence that even at the time of the hearing in June 1974 the floorboards in the kitchen were up and he thought that it would be another four weeks before they could be put down again.

This was a marriage which had never been an entirely satisfactory one. There was obviously a lack of warmth in it during most of the time, and it was common ground that the husband was a somewhat withdrawn personality; and the Judge held that what the wife was really complaining about was not these difficulties about what was being done in the house, but the husband's general character. At page 8B in his Judgment he said: "I have to have regard in this case for the history of the carriage and the nature of the personality of the two people who came together in marriage. They took each other for better or for worse and it is a bit late in the day, twenty-one years later? to complain about the personality of the man you married, if that is all you have to complain about in reality. It is easy to find other things, when you are minded to leave your husband; it is easy to find other things and to make something of them". Was that a reasonable assessment of the position? I do not think it was. It is true that the husband's personality and the difficulties that had existed during most of the marriage did form a background to the situation which had arisen by the autumn of 1973, but when one looks at the letter which the wife left for the husband when she was departing from the matrimonial home (it is to be found set out at page 33 of the evidence) it is in these terms: "Ivan, I have left you. I am sorry I have had to do it this way, but I could not bear to have an emotional argument at the last moment. I did tell you I intended leaving when I came back from my holiday and again about two weeks later, Each time you did not take me seriously. Now that I have gone I think you will. I have told you my reasons, about the flat, the dirt, etcetera, but it really goes much deeper than that. I know I cannot go on living with you any more. I do not want to hurt you but there is no way to avoid it. We are all hurt. Jane and Derek are with me. Of course you can see them any time you like. I, too, must see you and talk to you so I will come to the flat on Monday after work. I hope your manner towards me will be reasonable.

It is true that in that letter she did say it goes much deeper than the flat, but that is a very different thing from saying that the flat was not a matter of importance, and when she was further cross-examined about it she said, at letter F on the same page, when she was asked: "But you are really complaining about his personality? (A) Yes. (Q) And that is why you are saying it has broken down? (A) It is one of the causes and it is a basic cause. It has been aggravated and the last straw is the condition under which I am living. I have lived in very many places and I know you cannot have everything in life. I know that my Marriage was not the best and I could not get the love and affection I needed. I thought when I had a home of my own we would have something and we would get the opportunity to get to know people. I thought we would have reasonable friends and lead a decent life, but I had nothing". The learned Judge does not say that he disbelieved that, and I see no reason why he should. It strikes me as evidence coming from the heart of this witness, and what she is saying again is that the basic cause had been the unhappiness which went very deeply, but the last straw came when they were living in conditions "which not only made it uncomfortable for me and my children to live there but made it impossible for us to have the friendships which we would like to have had at that stage of our lives".

The wife's case received corroboration from one witness, apart from the doctor who was called on her behalf, and that was a neighbour, Mrs. Pawson, and I read just very briefly from her evidence at page 41, letter C: "(Q) Did you gain any impression about his attitude towards his family in connection with the work? (A) Well, I think he believed that he was doing the right thing for the house, but it involved considerable discomfort for the family. I think he believed that it was the right thing, but, in fact, it went on so long that it caused great discomfort and hardship to the family". Then, at the foot of page 42: '(Q) was there obvious unhappiness or was it simply that they were living in some confusion? (A) I think there was obvious unhappiness. Although they had acquired a home, which Mrs. O'Neill had been waiting for for a long time, she was not able to make it into a home or to have visitors or have any friends there".

The wife had complained in her Petition that the husband's behaviour had affected her health. She said that the duodenal ulcer from which she had suffered for some time was aggravated and that she was not able to sleep without the aid of sleeping pills. She called a doctor to support that part of her evidence, and the doctor gave evidence that she had had this increasing abdominal pain during these years and that he also had provided her with sleeping pills because she complained of sleeplessness; and what seems to me to be striking about the doctor's evidence is that he said that since she has left her husband he has only had to treat her once or twice; her condition has obviously very greatly improved.

Coming to the matter of the letter to which I have referred, it arose in these circumstances. After the wife had left she instructed solicitors almost immediately, and they wrote a letter to the husband on the 10th October, 1973; saying why, according to their instructions, the wife had left, saying that she was contemplating divorce, and suggesting that he should consult a solicitor. Re wrote on the 12th October a very long letter to the solicitors seeking to justify what he had been doing in respect of the house, and in the course of it he said this: "Divorce proceedings initiated. To assist you in offering advices to my wife I give you the nucleus of my case, (l) Desertion took place by my wife on the 5th Oct. 1973. (2) I will order medical evidence to determine whether or not I am the Father of Jane. (3) I will order medical evidence to determine whether or not I am the Father of Derek. (4) I will fight for the custody of Jane". At the end of the letter he appended this note: "Copies of this letter are to be distributed to: (l) My wife - Mrs. Maureen O'Neill (2) My Daughter - - Miss Jane O'Neill (3) Your Surveyor", That was a piece of conduct which appears to me to be so unreasonable that if it was taken by itself it would be such as to entitle the wife to say that she could not be expected to continue to live with her husband.

The husband says that it was written in haste. The fact is that he had some days previously in conversation with his wife expressed doubt as to the paternity of Derek. In the letter he goes further. He says that it was written without legal advice. Of course it was. If he had had legal advice he would have been restrained from doing anything so wicked as to write this letter. He says that he had no previous experience of courts of law. If he had courts of law in his mind when he wrote the letter, it is not any explanation of his doing so.

Strangely, the learned Judge made no reference to this part of the wife's complaints in his Judgment. I am satisfied that there was here, both in respect of the conditions in which the wife was called upon to live in during those two years and in respect of that letter, such conduct as would lead to the conclusion that the husband behaved in such a way that the wife could not reasonably be expected to live with him. In those circumstances a decree of divorce should follow unless the husband could establish that despite his conduct the marriage had not irretrievably broken down. Although he said that he wanted to resume cohabitation with his wife, he really adduced nothing to go to show that the marriage had not irretrievably broken down, and I have reached the conclusion that the wife's case has been wholly established here, and that the appeal should be allowed and a decree nisi pronounced.

LORD JUSTICE ROSKELL: I so entirely agree with the judgment which my Lord has just given in every respect that I hesitate to add to it. I do so only because we are disagreeing with the judgment of his Honour Judge Polson, a judgment from which I must firmly, respectfully, but without any hesitation dissent, for I think that the learned Judge not only applied the wrong test in point of law to the question of considering whether or not the wife's case was proved, but also failed sufficiently to consider the submissions or to analyse the evidence which was carefully placed before him. Had he done either of those things, I cannot think, with the utmost respect to him, that he would have reached the conclusion he did.

As was pointed out in this court in the well-known case of Wachtel, the 1969 Act (and the 1973 Act which has replaced it) was a reforming statute; and, as was pointed out by Mr. Justice Dunn in LiVingston-Stallard v+ Livingston-Stallard, (1974) 3 Weekly Law Reports 302 at page 307, Section 1(2)(b) Is expressed in very simple language. The relevant paragraph, to which my Lord has already referred, is expressed in especially simple language, to quote Mr. Justice Dunn, "which is quite easy for a layman to understand". Instead of applying the facts as he found them to the simple language of that subsection, the learned Judge referred no less than twice in his judgment, as my Lord has already pointed out, to words taken from the Book of Common Prayer, With the greatest respect, that is not the relevant test. I would respectfully adopt as correct what Mr. Justice Dunn said on the same page of the report in Livingston-Stallard: "Coming back to my analogy of a direction to a jury, I ask myself the question: Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties?" That sentence is quoted in Note (e) on page 217 in paragraph 25 of Chapter 7 of the current (12th Edition) of Rayden; which correctly states the law which has to be applied. Accordingly, I ask myself the same question that Mr. Justice Dunn asked himself in the LiVingston-Stallard case. When one asks that question, I venture to think it is capable, on the almost unchallenged evidence, of only one answer, that this husband has behaved in such a way that the Petitioner cannot reasonably be expected to live with him. At the end of his judgment the learned Judge, on page 9, said: "No, she"- - that is, the wife – "has not begun to make out any of these allegations. carriage is far too serious a thing to have it thrown out on trivialities", As my Lord has already said, that means that the learned Judge was saying that the charges made by the wife against her husband, so far as they were relevant, were true, but they were trivial. I can only say that I emphatically hut respectfully disagree. The learned Judge appears to have thought that it was right to dismiss the wife's petition on the ground that the husband's conduct, such as he found it to have been, was based upon some defect of personality, Even if that were true, and I am content to assume in the husband's favour that it is or may be true, that does not excuse his conduct; nor does it make His conduct any less unreasonable. It may explain it, but it cannot possibly excuse it.

Then there is the striking fact which my Lord mentioned at the end of his judgment, the husband's letter of the 10th October, 1973, written to the wife's solicitors five days after the separation had taken effect. The learned Judge does not mention the letter. I entirely agree with my lord that that . letter alone would justify the grant of a decree under Section 1(2)(b), for to describe it as wicked is an understatement. As I read it, it was a deliberate attempt to wound the wife, in the most cruel way in which it is possible for a husband to wound his wife, by accusing her of gross infidelity in that he was not the father of her children. He made no attempt, when challenged with this letter in the witness box, to defend his conduct. He sought to excuse it in a manner which I can only regard as pitiful. If I had been the learned Judge, I think I would have granted a decree on the strength of that letter alone. But in addition there was the evidence about the condition of this house brought about by work done by the husband which was done deliberately and one suspects unnecessarily (even though he may have persuaded himself it was necessary) and I cannot, for my part, accept for one moment that what the wife was expected to put up with at the hands of her husband was something that any reasonable woman should be expected to put up with or to endure at the hands of any husband.

I would unhesitatingly allow this appeal.

LORD JUSTICE BROWNE: For the reasons given by my Lords this appeal should be allowed. I do not feel that I can usefully add anything to what has already been said.

(Order: Appeal allowed. Decree nisi pronounced. Costs here and below; not to be enforced without further order. Certificate of satisfaction and ancillary matters to be dealt with by a Judge at Exeter other than Judge Polson).