England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
EXETER COUNTY COURT
(HIS HONOUR JUDGE TYZACK, QC)

		Royal Courts of Justice Strand London, WC2 Friday, 22 November 2002

Friday, 22 November 2002

1. LADY JUSTICE HALE: This is a wife's application for permission to appeal against a decree nisi of divorce that was pronounced by His Honour Judge Tyzack QC in the Exeter County Court on 21 May 2002 in defended divorce proceedings. The appellant's notice is dated 22 August 2000, so she also needs a considerable extension of time. The reason for the delay explained in the notice are communication problems principally with the Exeter County Court, exacerbated by the fact that she had changed her address in Ireland.
2. This is, of course, a divorce case in which the husband has s decree nisi and is now entitled to his decree absolute. He has plans to remarry and in such circumstances the court obviously has to be fair to both parties but ensure that matters are brought to a conclusion as quickly as reasonably possible; and so it would be wrong to grant an extension of time unless the merits of the application for permission to appeal were extremely good.
3. I am most grateful to the wife for making it over here today from Ireland. She has obviously had a long journey and not a great deal of sleep, but she has been able to put before me her own statement, her account of the courtship and marriage, and how she feels about the trial before His Honour Judge Tyzack; and I have listened carefully to everything that she said.
4. Defended divorces are very rare in this country these days. They are always extremely sad because the situation is that one party is adamant that the marriage is irretrievably broken down and the other is clinging to the belief that it could be saved. The court is in the middle between those two views.
5. The parties married in August 1998 in Ireland. The husband was then approximately 53 years old and the wife approximately 43. The husband had been married twice before and he has three children who are all now over 16. The wife, as I understand it, has not been previously married. They are both members of the Seventh Day Adventist Church and had been introduced through its introduction service. Early 1998 they corresponded through letters, phonecalls and tapes. They met in April 1998 when the husband travelled from his home in London for a church blessing in Ireland. He returned to put his affairs in order here and then came back to Ireland for the legal civil ceremony and to set up home together. There are no children of the marriage.
6. The wife has explained to me today that she did not want things to develop so quickly. She had some difficulties, for example because of an attack that had been made upon her some months before, and she wanted time to heal from that. She had explained that she had certain nervous problems and anxiety about animals, and a need to wash her hands frequently, and various health problems, candida and a gum problem, which can lead to very painful surgery. She tried to explain all of these problems to her husband and that she wanted time to heal from those.
7. Nevertheless, the husband was anxious to move ahead quickly and he moved to Ireland, in her view too quickly, and this put extra pressure upon her. She was recovering over time but her husband wanted it to happen overnight. Things were made worse by the fact that they moved several times during the course of their marriage. In her view if he had settled down and allowed her the appropriate time to recover rather than, in effect, increasing the pressures upon her through his presence then things might very well have gone quite differently.
8. The marriage broke down in November 1999 when the husband, who had already left several times, finally returned to England, and he petitioned for a divorce on 10 February 2000 on the basis set out in section 1(2)(b) of the Matrimonial Causes Act 1973:

"That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent."

There were two failed attempts at reconciliation, one for about two months in the middle of 2000 when the wife came over to this country, but eventually the husband asked her to return to Ireland. There is a supplemental petition dated 24 October 2000. There was another attempt for a few weeks late in 2001, but this did not succeed.

9. The husband's petition was based mainly on the wife's compulsive behaviour, her anxiety and fear of animals and animal germs and compulsive frequent washing of hands and also insisting on the husband washing, and on the washing of clothes, and also on a concern with her own health. The picture painted is one which is very familiar to those who have encountered nervous problems of this sort. He also complained that he had been misled by the wife before the marriage, both as to the extent of her problems and as to the sincerity of her commitment to Seventh Day Adventist beliefs.
10. The judge heard evidence from both parties. They were both represented by barristers (although the wife's had only quite recently been instructed) and they were both cross-examined. The wife feels that she was at a disadvantage during the trial. The husband had legal aid, and the benefit, therefore, of legal representation for a longer time; whereas she had not, she had to travel over from Ireland, and she had suffered various health difficulties before travelling. Thus she feels that it was an act of considerable courage to make the journey (just as no doubt it was today) and the judge should have taken that into account when he was considering her evidence against the more relaxed and self-confident presentation of her husband.
11. The judge made findings of fact which were favourable to the husband. He did so in terms which the wife has understandably found very distressing. In essence, that is why she wishes to appeal, apart from the fact, of course, that as a Christian she does not feel that this marriage should be dissolved. She feels that the judge made a judgment on her character and her psychological condition based solely on her performance in the witness box (she calls it the dock - of course it is not the dock but one understands why she feels that it was) and that assessment was at odds with her own doctor's assessment; but because of the late instruction of her solicitors it had not been possible to get the medical notes. She commented that the judge is not qualified to make a psychological assessment. That is the basis upon which she wishes to appeal.
12. I quite understand why the wife feels the way that she does. I find it difficult to believe that the judge could not have couched exactly the same decision on the law in terms which were less hurtful and distressing to the wife. The fact is that there is one ground for divorce in English law - that the marriage has irretrievably broken down. A court cannot grant a decree unless it is satisfied of one of five so-called "facts", although it does not have to be satisfied that this was the sole or even the main reason for the breakdown of the marriage. The "fact" that the husband was relying on in this case is not that the wife has behaved unreasonably. That is not what the Act says; that is why I quoted it in full before. It is not that the wife has been at fault or to blame for the way in which she has behaved. Those are not necessary questions. The question is whether the wife has behaved in such a way as it is not reasonable to expect the petitioner husband to live with her, which is a quite different question. That question involves the court looking at the effect of this behaviour on this petitioner and ask whether this husband should in the circumstances be expected to continue to live with it. Behaviour can meet that test, and often has done, even though it is the result of mental or physical disorder or of somebody's basic character or even permanent brain damage, or simply a clash of personalities or indeed just the very misunderstandings that the wife quite properly accepts arose, as a result of the combination of her problems, her husband's problems, and the hasty circumstances of their marriage.
13. In English law that makes no difference. It may still be a situation in which that fact is made out and the divorce can be granted. It is a secular divorce law and therefore does not rely on any of the principles which are observed by religions, including some denominations in the Christian faith.
14. It may well be that the fact is made out even though the one who is asking for the divorce is more to blame than the one who is not wanting the divorce. It is not a moral judgment. For that reason I am sorry that the judge chose to express his judgment in the way that he did. It was not necessary for him to do so. Nevertheless to a large extent it is agreed between them that there were problems in the marriage which arose in the way that I have described: that the wife had some nervous difficulties, there were misunderstandings and exaggerations. These resulted no doubt partly from the husband's partial sight (because as she said he had to be particularly precise and well-organised about the home) and partly from his impatience to have things sorted out. But that can still result in a situation in which the court is going to say it is not reasonable to expect that the relationship should continue.
15. For those reasons I cannot see any prospect of this court, which does not hear the evidence, which does not put her in the witness box, which does not make that assessment, interfering in the actual decision. It is clear that this marriage has irretrievably broken down. Again it is not a moral judgment; it is not a religious judgment; it is a straightforward fact. There may have been a time when it could have been retrieved, but clearly that time has now gone by. An appeal would therefore have no prospect of success. I cannot give permission to appeal. It would be a cruelty to both of them for me to do that; and so I have to refuse the applications. But I hope I have explained clearly why that is so.

(Applications refused; no order for costs; transcript to be provided at public expense).