(Sitting at Ipswich)
Ipswich IP1 1EJ |
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B e f o r e :
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VW | Petitioner/Respondent | |
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BH | Respondent/Petitioner |
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THE RESPONDENT/PETITIONER appeared in Person.
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Crown Copyright ©
This judgment was delivered in public. The Judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
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JUDGE LYNN ROBERTS:
The background
"On the morning of 8 May 2017 the respondent told the petitioner that he had been having an adulterous affair with the petitioner's closest friend over the course of the preceding twenty-five years, although in the course of that twenty-five years he had twice ended that relationship. He then went on to say that he was also having an adulterous affair with another woman whom he had recently introduced to the petitioner. The petitioner elects not to name either of these two women with whom the respondent has admitted he has committed adultery, and she does find it intolerable to live with the respondent who has moved out of the family home."
"The reason why the marriage has broken down is not through the adultery mentioned by the petitioner in her petition but because of her unreasonable behaviour as described in my own petition."
"The petitioner cites two allegations of adultery in her petition. The first over the last twenty-five years and the other more recently. The respondent denies that he has committed adultery as alleged and denies admitting the same to the petitioner as alleged. As to the allegation spanning twenty-five years, the respondent admits he did commit adultery on a regular basis over the last twenty-two years with a woman known to the petitioner but the petitioner knew of it more than ten years ago and in that knowledge continued to live with him, although not having sexual intercourse for the last two years due to the respondent's ill health and did so for a period in excess of six months after the last act of adultery, being sometime in or around July/August 2016. As to the second allegation, this is totally denied by the respondent as it did not occur as alleged or at all."
"I deny that I have behaved in such a way that BH cannot be expected to live with me. I specifically deny each and every allegation in the additional notes to paragraph 7.2 of his divorce petition. Our marriage broke down irretrievably for the reasons set out in my own divorce petition, namely that BH committed adultery, as admitted by him in part 3 of his answer to my divorce petition in which I relied upon his adultery, and that I find it intolerable to live with him. I do find it intolerable to live with BH. In support of my divorce petition I have filed my own statement of truth together with six witness statements. My petition preceded the respondent's petition."
The law
"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 [in this case], that is to say-
"(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent..."
"(1) One party to a marriage shall not be entitled to rely for the purposes of section 1(2)(a) above on adultery committed by the other if, after it became known to him that the other had committed that adultery, the parties have lived with each other for a period exceeding, or periods together exceeding, six months.
(2) Where the parties to a marriage have lived with each other after it became known to one party that the other had committed adultery, but subsection (1) above does not apply, in any proceedings for divorce in which the petitioner relies on that adultery the fact that the parties have lived with each other after that time shall be disregarded in determining for the purposes of section 1(2)(a) above whether the petitioner finds it intolerable to live with the respondent."
"Where in any proceedings for divorce the [respondent] alleges that the [petitioner] has behaved in such a way that the [respondent] cannot reasonably be expected to live with [her], but the parties to the marriage have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the [respondent] and held by the court to support his allegation, that fact shall be disregarded in determining for the purposes of section 1(2)(b) above whether the [respondent] cannot reasonably be expected to live with the [petitioner] if the length of that period or of those periods together was six months or less."
"If in any proceedings for divorce the respondent alleges and proves any such fact as is mentioned in subsection (2) of section 1 above (treating the respondent as the petitioner and the petitioner as the respondent for the purposes of that subsection) the court may give to the respondent the relief to which he would have been entitled if he had presented a petition seeking that relief."
"In the light of the authorities, I agree that the law is correctly set out in the current edition of Rayden...:
'6.82 The words "reasonably be expected" in the statute 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 in assessing what is reasonable.
6.83 Allowance will 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.
6.84 The approach has been summarised obiter in Balraj v Balraj:
(i) the court has to decide the single question whether the respondent has so behaved that it is unreasonable to expect the petitioner or applicant to live with him;
(ii) in order to decide that, it is necessary to make findings of fact as to what the respondent actually did, and findings of fact as to the impact of that conduct on the petitioner or applicant;
(iii) there is, of course, a subjective element in the totality of the facts that are relevant to the solution, but when that subjective element has been evaluated, at the end of the day the question falls to be determined on an objective test.
6.85 It has been said that the correct test to be applied is whether a right-thinking person, looking at the particular husband and wife or civil partners, would ask whether the one could reasonably be expected to live with the other taking into account all the circumstances of the case and the respective characters and personalities of the two parties concerned.'
36. Rayden continues, paras.6.86, 6.88:
'6.86 Any and all behaviour may be taken into account: the court will have regard to the whole history of the relationship.
…
6.88 The court will have regard to the cumulative effect of behaviour. Conduct may therefore consist of a number of acts each of which are apparently reasonable in isolation, but which taken together are such that the petitioner or applicant cannot reasonably be expected to live with the respondent.'
37. ... What the authorities show is that, in a case such as this, the court has to evaluate what is proved to have happened (i) in the context of this marriage, (ii) looking at this wife and this husband, (iii) in the light of all the circumstances and (iv) having regard to the cumulative effect of all the respondent's conduct. The court then has to ask itself the statutory question: given all this, has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent? ...if the marriage is unhappy a particular piece of 'conduct' may have more impact and be less 'reasonable' than exactly the same conduct if the marriage is happy."
The witnesses and the evidence
The evidence of Ms R
KH
"I am very clear. I was gobsmacked. I had not heard of the affair before. L told me he had learned the previous day too and he could not comprehend it. It was very surreal what had been disclosed to everyone."
The three sons of Ms Y
AD
CD
"I do not believe for one minute that V knew the full facts before B told her, which she said was on 8 May, the day before he and my mum set up their meeting with my brothers and me on 9 May".
"She was angry at it being portrayed that she had known about it for years and it was quite clear from how she spoke that she did not. She would not have been so angry if they had known for so long."
ED
"She was still very upset. I think she needed to talk about it. I did as well. I am satisfied in my own mind that there was no way that V could have known about any of this beforehand."
MM
FP
Ms W
"On 8 May you had moved to the Hare and Hounds but kept coming back every day giving me more and more information and saying many things, but on this day I was in the garage and you started again, and you told me of the night before, and then you said, 'By the way, I've been having a sexual relationship with U for the past twenty-five years'. After 8 May, you kept going on, saying more and more and more. Being told that on 8 May was very, very upsetting. You and my best friend had done that to me. I had done everything for her. It felt like a dagger through the heart being betrayed by my husband and by my best friend."
Mr H
"I am accused of having another adulterous relationship which again is not true. In my answer I then elaborated that although I had been in an adulterous relationship, which V knew about, crucially that relationship had ended after her knowledge of it. As I understand it, as we had been living together for a full six months after knowledge, she cannot rely on the past adultery as a basis for the divorce."
"As usual, she brought up U saying that I would rather be with U than her. I told her that wasn't true, but I also said that I never felt less for her than I did that day. In fact, I believed our relationship was getting worse and worse."
"V started at me again about my relationship with U. She was saying, 'Just tell me. Just tell me. Are you having an affair with U?'. She was screaming at me, 'I just need to know'. At first, I said nothing, but when she kept on saying repeatedly, 'Just tell me. are you having an affair with U?' I said, 'Okay. Take that as a given. What do you want to do about it?'."
"From that day, although we had some pleasant times through the next few years, our marriage was irretrievably damaged. I had no intention of ending my affair with U and V had no intention of doing anything about it, or so I thought. However, she started collecting evidence and being financially deceitful from that time."
Ms Y
Conclusions, findings and decision
LATER: