United Kingdom House of Lords Decisions

Parliamentary Archives,
HL/PO/JU/4/3/1107

HOUSE OF LORDS

COLLINS (A.P.)

v.
COLLINS (A.P.)

Lord Reid

Lord

Evershed

Lord

Morris of

Borth-y-

Gest

Lord
Hodson

Lord
Pearce

27th June 1963
Lord Reid

MY LORDS,

In 1961 the Shropshire justices made an order that the Respondent be
no longer bound to cohabit with the Appellant, her husband. This order was
made because the justices found that he had been guilty of persistent cruelty
to her. On appeal a Divisional Court (Sir Jocelyn Simon, P. and Cairns, J.)
made an extensive and valuable analysis of the authorities and held, chiefly
on the authority of Kaslefsky v. Kaslefsky [1951] P. 38 and Eastland v.
Eastland [1954] P. 403, that the facts proved did not amount to cruelty. Their
decision was reversed by the Court of Appeal (Willmer and Davies, LJJ.,
Harman, L.J. dissenting).

We have before us notes of evidence given before the Ludlow justices
and a note of their reasons. Both are admirably prepared, but they cannot
be a full equivalent of a transcript of evidence and a judgment in the High
Court. So it is even more necessary for us to be cautious in attempting
to substitute a different view of the facts from that taken by the justices. In
this case I think I might have taken a different view of some of the facts
but I do not find any sufficient grounds for rejecting the view of the justices:
it may well be that if I had seen the witnesses and heard the whole
of the evidence I would have agreed with them. So I shall state briefly
the facts as they appear to have presented themselves to the justices.

The parties were married in 1946. They were then aged 43 and 38. There
are two daughters born in 1947 and 1949. The husband owned a farm
but he was unsuccessful and ran into debt. He sold the farm in 1957 and
bought a house at Church Stretton. His wife had given or lent to him
considerable sums and he transferred the house to her. The wife has carried
on the house as a guest house for elderly people. The husband did little
or nothing to help her in running the house: if he had chosen to do so
he could have obtained paid employment but he did not do so. He spent
a good deal of time and money in trying to invent agricultural machinery,
but the justices appear to have regarded this as a mere excuse or as a
selfish indulgence. He was incorrigibly and inexcusably lazy, and that has
been at the root of the whole trouble. She was an active and capable
woman and with little assistance she earned some £25 per week from the
guest house, but this was little more than enough to meet expenses. I accept
the view of Harman, L.J. that " all that he had done is to hang up his hat
" in the hall". He was being constantly dunned by creditors. She was
alleged to be liable for some of his debts—it is not clear why. But certainly
creditors were trying to make her pay and she did pay some of the debts.

There was never any suggestion that he was deliberately trying to hurt
her or that there were any violent quarrels. She does say that her
husband was arrogant and bigoted and not a mild man and did not think
of anyone else but himself. But the evidence shows that what worried
her and made her ill was his refusal to try to help her or to earn money
and clear off his debts. She says: " Many times people have come to the
" door seeking my husband because of long standing debts and also the
" County Court bailiff has been to the door many years. This has worried
" me to death and I cannot stand any more of it". It would seem that
she would have been quite content if she could have put him out of the
house and continued to maintain herself and her children without being
troubled by him and his creditors. She did refuse to cook for him or do
anything for him and he left for a time but came back again. First she
tried to get a non-cohabitation order without alleging cruelty, but then



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2

her health began to be affected and she brought the present proceedings.
It is true that he did obtain paid employment for a while but the justices
apparently did not see that as a sign of genuine reform.

So we have a normal, active and capable woman against whom nothing
is said brought to a state of health when she can no longer earn her living
or maintain her children solely by the shiftless and selfish conduct of her
husband. We must take it that the justices found that he was well aware
that his conduct was reducing her to a physical and mental state where
she would no longer be able to maintain herself or their children, that if
he had chosen to behave as any decent minded man would this could easily
have been avoided, but that in spite of his awareness of the consequences
he chose to continue to sponge on her in selfish idleness. The question is
whether the law of England requires that these two shall continue to live
together and would regard her as guilty of the matrimonial offence of deser-
tion if she left him. If that is the law, then she must be told that it is her
legal duty as a wife to sink into poverty and ill health and become with her
children a charge on the State. But does the law not permit us to say that
such conduct in such circumstances amounts to persistent cruelty?

No one has ever attempted to give a comprehensive definition of cruelty,
and I do not intend to try to do so. Much must depend on the knowledge
and intention of the respondent, on the nature of his (or her) conduct, and
on the character and physical or mental weaknesses of the spouses, and
probably no general statement is equally applicable in all cases except the
requirement that the party seeking relief must show actual or probable
injury to life, limb or health. So I shall first exclude the kinds of case
with which I am not dealing, with the caveat that much of what I am going
to say may not apply to them. First I exclude cases where the respondent
acted with a desire or intention to hurt. That kind of case was dealt with
in Jamieson v. Jamieson [1952] A.C. 525, and I need say no more than that
if one spouse sets out to hurt the other and causes injury to health the
means whereby that happens can hardly matter. Then there are difficult
cases where the conduct complained of would have caused no damage
to a spouse normal in health and temperament, but that does not arise
here because this wife was a normal, healthy woman. And there are other
cases where the offending spouse suffers from some mental abnormality.
The next case which we have to decide, Williams v. Williams, is such
a case, and I shall not anticipate what I have to say there. With such cases
I associate cases where the offending spouse is too stupid or obtuse to realise
the effect which his conduct is having on his wife or her husband. In the
present case there is nothing in the husband's condition to palliate his
conduct and he must be regarded as fully responsible for it. And no question
arises here of the guilty spouse having been provoked in any way.

This appears to me to be a plain, uncomplicated case of a husband fully
responsible for his conduct, knowing that it was injuring his wife's health
and yet persisting in it, not because he wished or intended to injure her but
because he was so selfish and lazy in his habits that he closed his mind to
the consequences. The facts of this case appear to me to go well beyond
the ordinary wear and tear of married life—adopting Lord Asquith's phrase
in Buchler v. Buchler [1947] P. 25. So the question must be whether the
husband's conduct was of a kind which can in law be called cruel and
whether the law requires an intention to injure before there can be cruelty.

I shall not make any extensive examination of the authorities now. I
intend to look at a good many in Williams's case and I understand that others
of your Lordships will do so in this case. Sometimes a distinction is drawn
between conduct which is and conduct which is not cruel in itself. That
distinction has some validity. Where, for example, there is physical violence
of a grave and weighty kind there is no need to look further, as I shall try to
show in dealing with Williams's case. But more often the conduct must take
its colour from the state of mind which lay behind it. Sometimes it is said
that the matter can be left at large: that although you cannot define cruelty
you can recognise it when you see it: and that therefore the trial judge
should not be hampered by legal niceties and refinements. But that appears
to me to be placing too great a burden on the trial judge and to be likely



3




to lead to a multitude of appeals: for without further guidance borderline
cases, which are numerous, will make a different impression on different
minds, and moreover a judge must give reasons—he cannot just say " I think
" that these facts prove cruelty ".

Nevertheless, I would try to reduce tests, rules and presumptions to a
minimum. 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. We are dealing
with this man and this woman and the fewer a priori assumptions we make
about them the better. In cruelty cases one can hardly ever even start
with a presumption that the parties are reasonable people because it is hard
to imagine any cruelty case ever arising if both the spouses think and behave
as reasonable people.

In the present case I think that the Divisional Court went wrong because
they proceeded on the authority of Kaslefsky's case. They are in no way to
blame for that because they were bound to follow it. But I do not regard
Kaslefsky's case as a good guide, so I must now examine it and its implica-
tions. As was inevitable in the existing state of the law, that case was
argued and decided in an atmosphere of phrases and presumptions more
picturesque than of easy practical application. The trouble began in a way
which was not uncommon. The husband after the birth of his son went
abroad for two and a half years on war service. While he was away the
wife told him she wanted her freedom. She and the child were living with
her mother and he returned to her there in April, 1946. She was lazy and
sluttish and left much of the care of the child to her mother and then to her
husband. She refused sexual intercourse and there were some quarrels
about the child ; and after a couple of years he met another woman and went
off with her. Then he tried to get a divorce for cruelty. There was some
evidence of injury to his health, but it was not clear that that was really
caused by his wife's conduct. There was nothing to shew that she knew
or must have known that her conduct was injuring his health, or that the
real cause of his leaving her was that he could not stand her conduct any
longer. There was some evidence of failure to treat the child properly but
nothing that I would regard as cruelty. On any view of the law I would
think that cruelty had not been proved.

The case was decided by the learned Commissioner on the ground that
there was " no evidence before me that those acts were what are called inten-
" tional acts or aimed specifically at the husband ". In the Court of Appeal
the eminent Counsel engaged could not do other than take the familiar line:
" The husband's health was not injured merely by the natural development of
" the wife's character but by her wilful and unjustifiable conduct towards
" him ... a spouse must be presumed to intend the natural and probable
" consequences of his or her own acts ... it is not necessary ... to prove that
" the respondent intended to be cruel, provided that her intentional acts
" amounted in fact to cruelty "; and then they argued that the test of " in
" some way aimed at", first introduced in Westall v. Westall, 65 T.L.R. 337,
was obiter and inconsistent with Squire v. Squire (1949] P. 51.

Bucknill L.J., with whom Somervell L.J. agreed, said (at p. 44): " I venture
" to think that that is one of the tests which has to be applied: is the conduct
" of the wife, unless done for the express purpose of injuring the health of the
" husband, innocent in the sense that it is justified or justifiable under the
" circumstances? In cases such as refusal of sexual intercourse, or sheer
" laziness, or neglect of a child, I think that is conduct which is innocent, so
" far as any charge of cruelty is concerned, unless it is done for the express
" purpose of causing injury to the health of the complaining spouse ". That
appears to me to go much too far, but I need not develop the point because
in the next paragraph he appears to me to have watered it down by agreeing
with what Denning L.J. had said in Westall: "... intention is an element in
" this sense, that there must be conduct which is, in some way, (my italics)
" aimed by one person at the other ".

Lord Denning elaborated what he meant by " aimed at ". First it included
" action or words actually or physically directed at him ". I am not at all
sure what this is meant to include. Suppose a husband speaks derogatory



4

words to a third person in his wife's presence. They are physically directed
at her: they impinge on her ears. But in Kaslefsky's case it appears to have
been accepted that cruelty to a child in the mother's sight and presence is
not aimed at her unless done with the express purpose of hurting her. And I
cannot think that speaking derogatory words to a stranger can be cruelty if
brutality to the child is not. So this test seems too vague to be satisfactory.

Then Lord Denning deals with cases where there is only " misconduct
" indirectly affecting him or her, such as drunkenness, gambling or crime ".
Then he says there must be in some part " an intention to injure the other
" and inflict misery on him or her ". But he goes on to say: " Such an
" intention may readily be inferred from the fact that it is the natural
" consequence of the conduct, especially when the one knows, or it has been
" brought to his notice what the consequences will be, and nevertheless he
" does it, careless and indifferent whether it distresses the other or not".
There are many cases where such an inference is justified but there are
many where it is not. The drunkard may know, at least in his sober
moments, what damage he is doing to his wife. The gambler sees his wife
and children deprived of proper food and clothing. But it must be a rare
case where either desires or intends to hurt his wife.

Why should we have to drag in intention at all? It seems to me a very
poor defence to say: " I know the disastrous effect on my wife of what I
" have been doing. Probably I could have resisted temptation if I had
" really tried. But my conduct is innocent because I had not the slightest
" desire or intention to harm my wife. I have acted throughout from pure
" selfishness ". And the evidence may make it quite clear that he had no
intention at all of causing pain to his wife. If he knew, or the evidence
shews that he must have known, the effect of his conduct, if there was no
justification or excuse for it, if the effect was really serious, if the wife
was not unusually sensitive and he had not reached the stage of mental
disorder, why does intention matter? As I have said, I am not dealing
with cases where the wife from illness or temperament cannot stand what
an ordinary woman could be expected to tolerate, or where for any reason
the husband's responsibility is diminished. I am dealing with cases like
this case where nothing of that sort can be said. If it can the case becomes
much more complicated. And I wish to make it quite clear that I am not
criticising Lord Denning. Sitting in the Court of Appeal he was bound
by a host of authorities which do not bind us. Probably his attempt at
rationalisation went as far as he was entitled to go, but I do not think that
anyone would say that the present state of the law is satisfactory. I shall
try to explain why I think that is so.

" Aimed at" is a phrase in ordinary use understood by everybody. If
you aim at something you intend to hit it and if you hit something un-
intentionally you have not aimed at it. Intention is a state of mind. You
cannot see into other people's minds but ordinary people have little difficulty
in inferring intention from what a man does and says viewed in light of the
circumstances. Juries deal daily with the burden of proof of intention,
whether it has to be proved beyond reasonable doubt or on a balance of
probability. And a man can intend to kill two birds with one stone.

If it were the law that an intention to hurt is a necessary element in cruelty
there would be no difficulty in theory. The only difficulty would be to
evaluate the evidence and decide whether the burden of proving such
intention had been discharged. But no one now supposes that that is the
law. Everyone agrees that something short of proof of actual intention
will do. If the test is that conduct must be " in some way " aimed at the
petitioner I must admit that I find that difficult. In real life either you are
aiming at something or you are not: in law either you have proved an
intention or you have not. But aimed " in some way" takes us into a
region where you assume or presume an intention which has not been
proved because it cannot be inferred as a fact from the evidence. But
you do not treat a presumed intention as equivalent to a proved intention.
Jamieson's case shews that a proved intention to hurt can make conduct



5

cruel where a mere presumed intention would not. Presuming an intention
which has not been proved as a fact causes such confusion that I will with
your Lordships' permission, deal with this matter in some detail.

Sometimes it is said that a person must be presumed to have intended
the natural and probable result of what he did. That, if taken literally,
must mean that it would be irrelevant to prove that in fact he did not intend
that result: it would introduce a purely objective standard not depending
at all on the state of his mind. In fact people often intend something
quite different from what they know to be the natural and probable result
of what they are doing. To take a trivial example, if I say I intend to
reach the green people will believe me although we all know that the
odds are ten to one against my succeeding; and no one but a lawyer would
say that I must be presumed to have intended to put my ball in the bunker
because that was the natural and probable result of my shot Irrebuttable
presumptions have had a useful place in the law of tort in facilitating the
change from a subjective to an objective standard. For a long time it
was thought that, at least in theory, intention or mental state of some kind
was a necessary ingredient in negligence. But life would be impossible
in modern conditions unless on the highway and in the market place we
were entitled to rely on the other man behaving like a reasonable man.
So we now apply a purely objective standard. The other man may have
been doing his best and he may not realise that his best is not good enough,
but if he causes damage by falling short of the ordinary standard he must
pay. In matrimonial affairs we are not dealing with objective standards,
and it is not a matrimonial offence to fall below the standard of the reason-
able man (or the reasonable woman). We are dealing with this man and this
woman. There appears to be no recent authority which expressly approves
an irrebuttable presumption in such cases, so I pass to the next stage.

What is most often said is that there is a presumption in cruelty cases
that the respondent intended the natural and probable results of his conduct,
but that that presumption can be rebutted. That is equivalent to saying
that proof of the natural and probable consequences transfers the onus
of proof so that now the respondent must prove that he did not intend that
result. I suppose that on this theory the respondent would have to produce
evidence, including his own, sufficient to shew that on a balance of probability
he did not intend harm to the petitioner, and of course it might be more
difficult to prove that he did not intend a likely result than to prove that
he did not intend an unlikely result, but quite often he could prove it. A
person accused does not have to prove his defence beyond reasonable doubt.
I think that Lord Denning must have had something of this kind in mind
when he said that such an intention " may readily be inferred ". But in
many authorities the objective test seems to persist. In the present case
Willmer, L.J. stated the propositions of law which he deduced from the
decided cases. He said " there must always be some element of intention
" in relation to the impact of the conduct complained of in the other
" spouse . . . such an intention may in a proper case be inferred where,
'' for instance, the conduct complained of is persisted in ... in circumstances
" in which any reasonable person would appreciate that it was likely to
" injure the other spouse. For any spouse may be presumed to intend the
" natural consequences of his own behaviour ". That seems to me to be
very vague. I do not blame Willmer, L.J. because he was trying to sum up
the authorities and it is impossible to reconcile a good deal of what has been
said in the various decisions. But what is " a proper case " and when
" may " the presumption be applied? This is as vague as " in some way
" aimed at " It is said that although this is not a definition it is a useful
yardstick. But it is a very elastic yardstick, and practical people do not use
elastic yardsticks except perhaps for nefarious purposes. All this seems to
me merely to distract our attention from the real problem.

It appears to me that the time has come to decide whether or not intention
really is a necessary element in cruelty. I shall have more to say about
that in Williams's case. If it is a necessary element, then we must go by the
evidence. If the evidence shews, as it often does, where the respondent is



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6

obtuse and selfish, that it is extremely improbable that he had any real
intention to hurt his wife, then we must either refuse a remedy or say that
something else will do instead. Judges, bound by the existing state of the
law, have shewn much ingenuity where justice demands a remedy but where
it is extremely improbable that the respondent had any intention to cause
harm. The objective test of what a reasonable man would have had in mind
slips in—though it is quite obvious that no reasonable man could have
behaved as the Respondent did. Once we say that the state of this Respon-
dent's mind does not matter, and proceed, against the weight of evidence,
to attribute to him an intention which he did not have, we base ourselves
on a fiction and that is bound to lead to trouble. However useful fictions
may have been in the past in other branches of the law, they seem to me both
unnecessary and confusing in this realm of cruelty. I must pay this tribute
to learned judges in recent years: in spite of the difficulties created by all
these artificial tests, there are very few reported cases where they have not
been circumvented when justice required that. Indeed, the only decision
cited to us which on a more direct approach would seem to be wrong on
the facts is Eastland v. Eastland [1954] P. 403, where the test in Kaslefsky
was applied too literally. With regard to other decisions, a few may be
doubtful, because sometimes the full facts do not emerge very clearly. I
must, however, say a little about Lang v. Lang (1955] AC 402. It is not an
easy case. There had to be an agreed single judgment and such judgments
are not infrequently obscure. The husband was undoubtedly cruel. But
cruelty was not a ground of divorce in Victoria and it was necessary to
establish constructive desertion. The Act required that " the respondent has
" without just cause or excuse wilfully deserted the petitioner ". So the ques-
tion was whether the constructive desertion was " wilful "—whether there was
animus deserendi. A great deal was said about intention and presumption,
but as I read the judgment the facts were quite simple. The man deliberately
ill-treated his wife. He knew that this was likely to cause her to leave him
but he desired or hoped that she would not leave. He did not act with the
intention of driving her out, but he acted with the knowledge that that was
what would probably happen. There are references to what a reasonable
man would have known ; but it is said that this man must have known,
which I take to mean that it was proper to hold on the evidence that he did
know. So in the result his desire to keep his wife or lack of intention to
drive her out was irrelevant. The Act said nothing about intention: it used
the word " wilful". So the decision was that if without just cause or
excuse you persist in doing things which you know your wife will probably
not tolerate, and which no ordinary woman would tolerate, and then she
leaves, you have wilfully deserted her, whatever your desire or intention
may have been. That seems to me to be in line with what I am now submit-
ting to your Lordships is the law in cases of cruelty.

I shall now re-state briefly the result at which I have arrived. If the
conduct complained of and its consequences are so bad that the Petitioner
must have a remedy, then it does not matter what was the state of the
Respondent's mind. That I shall develop in Williams's case. In other cases
the state of his mind is material and may be crucial.

Jamieson's case deals with deliberate intention to cause suffering, and
Kelly v. Kelly L.R. 2 P. & D. 59, shews that a groundless belief that such
conduct is justified is no defence. I do not have to deal with cases where
the petitioner is partly at fault or cases like King v. King [1953] A.C. 124.
Nor do I have to deal with the very difficult class of case where from illness or
temperament the petitioner is unduly demanding or unusually sensitive.

I am dealing with a spouse normal in mind and health who has been
reduced to ill health by inexcusable conduct of the other spouse persisted
in although he knew the damage which he was doing. These matters must
be clearly proved. For reasons which I have given I must hold that they
have been proved in this case. They appear to me plainly to establish
persistent cruelty. I am therefore of opinion that this appeal should be
dismissed.

7

Lord Evershed

MY LORDS,

I concur with the opinion which my noble and learned friend, Lord Reid.
has just expressed and think accordingly that this appeal should be dismissed.
My Lords, I am disposed to agree with the view of Davies, L.J. in the
Court of Appeal that the Respondent's claim might colloquially be described
as a " thin case ". But the matter in issue being essentially a question of
fact, one considerable difficulty presented to the Appellate Courts and, now.
to your Lordships' House emerges from the fact that no full note was taken
of the evidence given before the magistrates, nor did the magistrates express
their conclusion in the form of a reasoned judgment. There was available
to the Divisional Court and to the Court of Appeal and there is now available
to your Lordships only a brief record of the proceedings before the Shrop-
shire Court taken, in accordance with the normal practice in such cases, by
the clerk to the magistrates. Certain reasons were, however, clearly formu-
lated for the Magistrates on the 5th October, 1961, and in the circumstances
I have thought it proper and helpful to set out in terms the first five
of such reasons. They were as follows: —

" (1) That at the time of the marriage the husband was heavily in
" debt, unbeknown to the wife, and that throughout the marriage the
" husband has not made any real or sustained effort to repair his
" financial situation; but on the contrary has involved his wife in his
" financial affairs to her detriment;

" (2) That since 1957 the husband, in spite of his wife's pleas for
" him to do so, has persistently and wilfully refused to undertake paid
" employment, and that he has not made any real effort to support
" his wife and children ;

" (3) That the constant worry and anxiety over the husband's debts
" and his wilful refusal to get work has seriously affected the wife's
" health, and that she has good reasons to fear permanent impairment
" of her health, which would affect her capacity to keep herself and her
" two daughters.

" (4) That in September, 1960, the wife told the husband that she
" could no longer stand the strain imposed by his behaviour;

" (5) That apart from the complaint of the wife, the husband should
" have known that his conduct was having a serious adverse effect on
" his wife's health. We are satisfied that any reasonable man would
" have appreciated this, and that the husband must have known that a
" continuance in his course of conduct would have an injurious effect
" on his wife's mental health ".

In their sixth reason (which I can properly summarise) the magistrates
stated that they rejected entirely Mr. Gollins's submission that what he said
he had done in looking after the garden and the poultry at the matrimonial
home at Rivenhall was a fair and proper contribution on his part. They
conclude by the statement of their view that it was the " clear duty " of
Mr. Gollins to make a real contribution to the support of his family and
that " his failure to do so was the direct cause of his wife's ill health ".

Having regard to the terms of their recorded reasons as well as to the
record of the evidence which on two occasions the magistrates heard (and
1 do not forget that the magistrates had the great advantage of seeing and
hearing on both occasions both Mr. and Mrs. Gollins), I agree with my noble
friend, Lord Reid, and with the majority of the Court of Appeal in thinking
that no sufficient grounds have been shown for disabling the conclusions of
fact reached by the magistrates or for holding that the magistrates in any
respect misdirected themselves in regard to the law.

The facts of the case which have been rendered available to your Lordships
have been fully stated in the Opinion of Lord Reid and I do not repeat them.
It is not in doubt, according to the express conclusions of the magistrates,
and has indeed not been disputed, that as a result of the conduct of her
husband to which she has been subjected, the health of the Respondent has



8

been substantially affected, so that the essential requirement for the establish-
ment of a charge of cruelty, according to the decision of your Lordships'
House in the case of Russell v. Russell ([1897] AC 395) has been satisfied.
It also clearly appears that the Respondent was and is a woman of (at least)
normal health and intelligence. She was before her marriage a trained
nurse and, having regard to her age (namely 39 and 41) at the time when
she respectively bore the two children of her marriage, her physical stamina
must have been certainly no less than average. She was also fortunately
possessed of some private means, though it is clear that her resources have
now been wholly involved or expended in relief of her husband's indebted-
ness or its consequences. She discovered shortly after her marriage that her
husband, then a farmer, was in fact in grave financial difficulties. His farm
was sold and the Respondent has since maintained the home not only for
her husband but for herself and her two children of the marriage by
carrying on, without any help whatever, financial or otherwise, from her
husband a guest house for elderly people. In so doing she has been from
time to time gravely embarrassed by the claims of the creditors of her
husband, who has never made the smallest contribution to her home, or to
the maintenance and up-bringing of the two children ; and it is now indeed
apparent that, if she is denied the relief which she has claimed, she will be
incapable of further maintenance of the home for herself and her children
and, as my noble friend has stated, will " sink into poverty and ill health
" and become with her children a charge on the State ". It may, therefore,
fairly be said (if these conclusions of fact are justified) in the words of
Sir William Scott in the old case of Evans v. Evans (1 Hag. Con. 35) that
her husband's conduct is " such as to show an absolute impossibility that
" the duties of the married life can be discharged " ; or at least in Lord
Normand's language that Mr. Gollins was guilty of " unwarranted
" indifference " to the sufferings of his wife.

It was, however, the view of the Divisional Court, as expressed by Sir
Jocelyn Simon, P., that there was no evidence showing that the husband's
conduct, however selfish and irresponsible, was " aimed at" his wife in
any sense and that therefore on the authority particularly of the case of
Kaslefsky v. Kaslefsky ([1951] P. 38) the Respondent's charge of cruelty could
not be sustained.

My Lords, like my noble friend, Lord Reid, I must not be taken to be
casting doubt upon the correctness in fact of the decision of the Court of
Appeal in the Kaslefsky case, but (also like my noble friend) I am, with all
respect to those who take or have expressed the opposite opinion, unable
to accept the view that in order to satisfy a charge of cruelty in a matri-
monial cause it must be shown that the conduct of the spouse charged was
in some real sense "aimed at" the other party to the marriage. Such a
view has, as I understand, emerged from the premise that " cruelty " in
matrimonial contests involves essentially a quality of malignity in some sense
on the part of the spouse charged. Upon this premise appears to have
depended, naturally enough, that there must have been some intention to
injure the other party, in other words that the conduct of the party charged
(whether positive or active on the one hand or, upon the other, indifferent,
selfish or negative) must in some sense have been " aimed at" the other
spouse. My Lords, for reasons which I more fully give in my Opinion in
the case of Williams v. Williams, I am unable to accept the premise that
" cruelty " in matrimonial proceedings requires or involves of necessity the
element of malignity—though I do not, of course, doubt that if malignity
be in fact established it would be highly relevant to a charge of cruelty. In
my opinion, however, the question whether one party to a marriage has
been guilty of cruelty to the other or has treated the other with cruelty
does not, according to the ordinary sense of the language used by Parliament,
involve the presence of malignity (or its equivalent); and if this view be
right it follows, as I venture to think, that the presence of intention to
injure on the part of the spouse charged or (which is, as I think, the same
thing) proof that the conduct of the party charged was " aimed at" the other
spouse is not an essential requisite for cruelty. The question in all such cases
is, to my mind, whether the acts or conduct of the party charged were



9

" cruel" according to the ordinary sense of that word, rather than whether
the party charged was himself or herself a cruel man or woman. Indeed,
for reasons which I shall more fully state in my Opinion in the Williams
case, the introduction of the notion of " intention " into the jurisdiction with
which your Lordships are now concerned has led to no little confusion and
difficulty which, as I hope, may now be laid to rest. The case where one
party to a marriage sets out by deliberate means to injure the other is no
doubt simple; but equally it is, I should think, relatively rare. More
frequent (and in its effects more often hurtful and insidious) is such a case
as the present where the " intention " of the party charged, if it exists at
all, is no more and no less than an " intention " to gratify his or her purely
selfish inclinations. So it is that, as it seems to me, the Courts in adopting
the necessity of " intention " have, inevitably in the cause of justice, had
to introduce the notion of presumed intention and thereby to have intro-
duced into Divorce Law quasi-philosophical difficulties which have clouded
the law and given to the word " cruelty " a sense which is not justified by
its ordinary significance.

For the reasons which I have attempted to state, I therefore conclude with
my noble and learned friend, Lord Reid, and as the majority of the Court of
Appeal thought, that no good reason has been established for disabling
the conclusion of the magistrates. I think, in other words, that if the reasons
formulated by the magistrates were justified, then applying the common
sense of the English language and the ordinary standards of human conduct
the Respondent made good her charge of cruel treatment, and I think
accordingly that this appeal should be dismissed.

Lord Morris of Borth-y-Gest

MY LORDS,

Though a question as to whether one person has been guilty of persistent
cruelty to another must ultimately be determined as an issue of fact, it is
eminently desirable that the approach to the determination should be guided
by principles of general application. This is not to say that some precise
definition of cruelty should, for the purposes of judicial determinations, be
attempted to be given. It has long been recognised that it would be unwise
to make any such attempt (see Jamieson v. Jamieson [1952] A.C. 525, 550).
There are, however, certain conceptions which are basic. Most people have
the same general ideas in mind when they speak of cruelty or of kindness.
If someone is giving thought to a question as to whether a person has
been cruel he will probably first consider what it is that the person has
done or has omitted to do, and will then decide, perhaps largely as a
matter of opinion, whether the act or omission does or does not fall within
his conception of cruelty. In the administration of the law the matter
cannot be left to be dealt with on quite such broad lines. Cruelty is a
matrimonial offence and an allegation of cruelty is a serious one. To be
found guilty of cruelty involves not only a slur which would be deeply
wounding to any self-respecting person but also involves certain specific con-
sequences. The matters complained of as amounting to cruelty must, there-
fore, extend much beyond the trivial or the casual. They must be serious
matters. If they were not they surely could not be the foundation for an
order affecting the matrimonial relationship. When in 1790 Sir William
Scott (in Evans v. Evans, 1 Hag. Con. 35) said that the causes must be " grave

"and weighty" he laid down a principle which has never been challenged.
Even the particular words that he used in expressing the principle have been
employed in subsequent periods with a measure of tenacious fidelity. The
conduct complained of must, therefore, go beyond what the particular com-
plaining spouse ought reasonably in all the circumstances to have been
expected to tolerate. I use these words because, as Willmer, L.J., points
out in his judgment in the present case, it is necessary to consider what was
the impact of the personality and conduct of one spouse upon the mind
of the complaining party (see Usmar v. Usmar [1949] P. 1 and King v. King
[1953] A.C. 124. 130) and also because, as Pearce, J. (as my noble and learned



A 6

10

friend then was) said in Lauder v. Louder [1949] P. 277, 308, " in a cruelty
" case the question is whether this conduct by this man to this woman, or
'" vice versa, is cruelty ".

Not only must the matters complained of be serious, they must also be
such as to have caused injury to health or a reasonable apprehension of such
injury (Russell v. Russell [1897] AC 395).

To these requirements I would add that the acts or conduct or omissions
complained of must have been intentional and not accidental. Some
occurrence accidentally brought about by one spouse may cause hurt and
misery to the other, but it would not be rational to convict the former of
cruelty.

The range of the reported decisions in cruelty cases, so carefully and
usefully reviewed, if I may respectfully say so, in the judgment of the
learned President, reveals that difficulties often arise in those cases where no
positive wish to hurt is apparent and in those cases where conduct causes
hurt indirectly. In the difficult spheres covered by such cases there has
naturally been a desire to seek a principle and in this search dependence
has often been placed upon particular phrases employed by learned judges
in expressing their conclusions in particular cases. In the result it has
sometimes happened that a phrase or an aphorism coined in one case has
become doctrine in the next. My Lords, I would favour as much simplicity
as is reasonably possible and as much freedom as is reasonably possible
from any limiting words or phrases. As Harman, L.J., pointed out in his
judgment, the only question which in the end arises for decision is—Did
the conduct of this husband amount to cruelty to this wife?

Some conduct may be shown to be conduct which is directed to or
towards or which is in relation to or which is in respect of the other spouse.
I am intending my words to be mere servants to express a meaning. Other
and different words would do. If such conduct is wilful and intentional,
then I would consider it fair that it should be judged by relation to those
standards to which a reasonable spouse in all the particular circumstances
of the particular marriage ought to have conformed. If such conduct is
wilful and intentional, then there either would be or there should have
been knowledge of any injurious effects resulting from it. Some cases
would be covered by the oft-quoted words used in 1919 by Shearman, J.,
in Madden v. Madden:—" I do not question . . . that he had no intention
" of being cruel . . . but ... his intentional acts amounted to cruelty ". I
agree, therefore, with Willmer, L.J., when he said: —" Thus, any course of
" conduct intentionally pursued, provided it has some impact on the other
" spouse, may in appropriate circumstances justify a finding of cruelty ".

There may, however, be conduct which does not appear to have been
directed to or towards or to have been conduct in relation to or in respect
of the other spouse. In such cases it is sometimes said that the " impact "
of the conduct is not direct. If such conduct was wilful and intentional
(and satisfied the conditions to which I earlier referred) cruelty could be
established if there had been an intention to injure the other spouse or if
with knowledge of its effect it was persisted in or continued. A continuance
of some particular conduct after receiving a warning that it was adversely
affecting the other spouse could amount to cruelty. Further, the facts and
circumstances might be such that any reasonable person must have known
that injury to the other spouse would be the result of the conduct: if so,
the wilful pursuit of the conduct would by inference involve an intention
to cause the injury. The process of drawing an inference does not involve
imputing an intention that did not in fact exist but involves deducing
from proper material that an intention did exist. If the conduct itself is
wilful and intentional and if either there is knowledge that it will probably
harm the petitioner or if, applying the standards of a reasonable person
in the circumstances of the particular case, there must have been such
knowledge, then, a charge of cruelty could be maintained. I say " could "
because in the end it must be shown as a question of fact that the conduct
is such that it can properly and rationally be stigmatised by the word
" cruelty " using that word in its ordinary acceptation.

11

My Lords, the divergences of view which are revealed in the judgments
in the Divisional Court and in the Court of Appeal seem to me to arise
mainly in the application of the law to the facts. The facts are very clearly
set out in the judgment of the learned President, and I need not refer to
them in complete detail. My study of them leads me to the same conclusion
as was reached by the learned President and Cairns, J., in the Divisional
Court and by Harman, L.J., in the Court of Appeal. From the time of their
marriage in 1946 until the year 1957 the parties lived at the farm. Though
the husband farmed unsuccessfully and was considerably in debt and though
the wife was caused much distress by her discovery in 1947 of the grave
financial situation then existing, there is no suggestion that the husband
at any time offered any sort of physical harm to her or that he was in any
way aggressively unkind to her or that he was in any way intemperate.
Nor does the evidence show that at any time he had any wish to harm her.
That has not been suggested. Furthermore the wife was not, in fact, at
any time short of money. The farm was sold in 1957. The property wa*
then purchased which thereafter the wife ran as a guest house. The house
was purchased in his name and there was a mortgage on it. The mortgage
had been partly redeemed by January, 1961, and in 1960 the house was
handed over to the wife. Undoubtedly she had a hard and strenuous
and worrying time. She had been involved by her husband in his debts
and she had continuously to work to support herself and the children and
to pay mortgage sums. He made no financial contribution. His help in
regard to the running of the guest house does not appear to have been at
all adequate. His activities in seeking to make inventions of agricultural
machinery did not produce any money for the home. In the enterprise
which kept the home going he may have been little more than a passenger.
It was the wife who carried the burdens.

It is easy to understand that a hard pressed and worried wife would
become exasperated. In September, 1960, a brother of the husband had a
fire at his farm in Buckinghamshire and as a result the husband went there
for a time in order to help. It was while he was there that the wife wrote
to him and told him that she could not stand the strain of his debts any
longer and she said: —" I told him it grieved me to have to take this step,
" but if he did not get work and clear himself of debt, after the end of the
" year I should take the steps I have. I asked him to stay away and get
" work because I could not stand the strain ". The husband did not do as
she wished and towards the end of the year he returned home. The wife's
first summons then followed. That was in December, 1960. She alleged
wilful neglect by him to provide reasonable maintenance. Cruelty was
not alleged. In her evidence at the hearing on the 5th January, 1961, the
wife made no complaint at all save in regard to money matters. There was
no suggestion or hint at that time that her health was in any way affected.
She said: " The only time I have any bother is over finance ". She did
complain of the fact that although her husband in the period after September,
1960, had worked as a farm labourer (earning from £6 to £8 per week)
at his brother's farm in Buckinghamshire he had not sent any money to her.

In his evidence the husband said that the guest house was a joint venture
and that he had kept the garden in order and had done small outside
repairs and painting. He considered that the work he had done had saved
much expenditure which otherwise would have been incurred and that he
had improved the value of the property. He further said that during the
previous four years he had applied for jobs but had only succeeded in
obtaining casual employment for very short periods. The magistrates told
the husband that he ought to find work and that he ought to maintain his
wife and children and that he had been guilty of wilful neglect to maintain
them. Their order (requiring him to pay her £3 a week and £1 for each
of the two children) was made on the 5th January, 1961. For some weeks

after that date the husband was away at his sister's house and then he
did obtain work. He became employed as a gardener-handyman at a wage
of £8 15s. 0d. a week. He started to pay 15s. a week to his wife and after-
wards, apart from one payment of £2, he paid her £1 per week. He used
the balance partly to keep himself and partly (to the extent, he said, of



30874

A5

12

£4 per week) to pay off his previously incurred debts. In April, 1961, the
wife consulted her doctor. In June, 1961, she ceased to perform regular
household duties for him or to have any association with him. In August,
1961, she took out a summons for the variation of the January order. She
asked for the insertion of a non-cohabitation clause on the ground that
her husband had treated her with persistent cruelty. It seems remarkable
that she should have complained of cruelty at that stage. In the earlier
period she had her husband's presence and no money from him: at this
period she was having nothing to do with him and he was making a payment
(though a very small one) to her. It is true that he was not fully complying
with the January order and was not paying the stated amounts, but his
case was that because of his financial position he could not do so and could
not pay more than he was doing. In September, 1961, he took out a
cross-summons to revoke the order of 5th January, 1961, on the ground
that his wife was in desertion or alternatively on the ground that he was no
longer guilty of wilful neglect to maintain for the reason that he was not
(and never had been) in a position to pay the amount ordered. The
husband in his evidence in October said that he had no reason to think
that his wife was ill. He did not see the doctor come to the house. His
wife had given him the impression that she did not want him. It was
the view of the learned President that the object of the wife in taking out
her summons in August, 1961, for variation of the previous order was to
get her husband out of the house. When the summons and cross-summons
came before the justices in October, 1961, they inserted a non-cohabitation
clause. They held that since 1957 he had persistently and wilfully refused
to undertake paid employment, that worry over this and the debts had
seriously affected the wife's health, that in September, 1960, she had told
him that she could no longer stand the strain, that he should have known
that his conduct was having a serious adverse effect on her health and that
he must have known that a continuance in his course of conduct would
have an injurious effect on his wife's mental health. Though the order of
the justices in October contains no express finding of cruelty it must, I
think, be taken that their reason for acceding to the application for a non-
cohabitation order was that they considered that the complaint of persistent
cruelty made in August, 1961, was made out. At the same time they decided
in favour of the husband to the extent that they reduced the wife's main-
tenance from £3 a week to £1 a week and they deleted the requirement to
pay £1 a week for each child, and furthermore they remitted the arrears.

They, therefore, impliedly held that the husband was paying as much as
in all the circumstances he could pay. Previously they had told him to
get work. Following upon that he had obtained work. He had made such
payments as he could. At the earlier date there was no allegation of cruelty.
There seems to have been even less justification for it in August than there
was in January.

My Lords, the husband may have been ineffectual in money matters and
he may well be criticised and blamed for his failures in the period prior
to January, 1961. He was then found guilty of wilful neglect to provide
reasonable maintenance for his wife and his children. Thereafter the events
were as I have indicated. Unless a finding of wilful neglect to maintain
must in every case involve a finding of cruelty (which I cannot accept) the
question that arises is, as the learned President stated it, whether, "the
" husband's conduct, however reprehensible, can properly be stigmatised by
" the word 'cruelty' in its ordinary acceptation". I do not think that
it can, and accordingly I would allow the appeal.

Lord Hodson

MY LORDS,

The question raised by this appeal is whether the Appellant, George
Gollins, was rightly convicted of cruelty towards his wife, Mabel Gollins. I
put the matter in this way although there is no conviction recorded against



13

him in the somewhat strange manner in which this case has proceeded,
What has happened is this. The wife, who had become dissatisfied wit
the husband's failure to make any substantial contribution to the joint home
which was successfully maintained by her efforts, sued the husband for
wilful neglect to maintain her and her children, making no allegation of
cruelty against him, and obtained an order which he was unable to comply
with except to a very limited extent

The parties were at this time living under the same roof and the wife,
unwilling that this should continue, for the first time raised against him a
charge of cruelty, upon which the justices must have found the wife's
allegation proved, for they made a separation order, thereby enabling the
wife to expel him from the house which, while originally his, had been trans-
ferred to her in circumstances which will appear.

There was no material change in the situation from the time the first
order was made on the 5th January, 1961, and the 5th October, 1961, when
the separation order was made, the wife's complaint being, as it always had
been, that she was not getting enough money and was worried by her
husband's debts and the consequences of those debts,- for she also had to
suffer the calls and demands of creditors.

Indeed, it appears that after the first order the husband paid more than
he had previously been able to do because he was, during part of the
time, in employment and able to keep himself, which the wife was no
longer willing to do, make payments in reduction of his debts and some
payment to his wife under the order.

On the second hearing the wife, having obtained her objective, namely.
separation, did not resist the husband's application to vary the order which
was reduced from £3 a week to £1 a week and £1 a week for each child.
The husband satisfied the justices that he was unable to pay the arrears,
which were accordingly remitted.

Smarting under the implied finding of cruelty, the husband appealed to the
Divisional Court, which allowed the appeal upon the overriding ground that
the Court did not consider that the husband's conduct, however repre-
hensible, could properly be stigmatized by the word " cruelty" in its
ordinary acceptation.

The wife appealed to the Court of Appeal, and Willmer, L.J., with whom
Davies, L.J., agreed in substance, held that there was abundant material
to justify the finding of cruelty and that the Divisional Court were therefore
in error in substituting a finding of their own. Harman, L.J., in a dissenting
judgment expressly agreed with the overriding ground of the Divisional
Court's decision to which I have referred, concluding by saying: " Whatever
" opprobrious names one may give to this husband, I do not think that

" ' cruel' is one of them ".

There is no dispute as to the facts, and the only question for your Lord-
ships' consideration is whether the Divisional Court was right in reversing
the finding of cruelty implicit in the justices' second order or whether the
Court of Appeal majority was right in holding the Divisional Court to be
wrong in disturbing the order of the justices.

Under the Summary Jurisdiction Acts, 1895 and 1960, an appeal lies from
any order made by a Court of Summary Jurisdiction under these Acts to
the Probate, Divorce and Admiralty Division of the High Court, and Rules
may from time to time be made regulating the practical procedure in such
appeals. Rule 73 of the Matrimonial Causes Rules provides for these
appeals to be made to the Divisional Court and directs that the Court may
draw all inferences of fact which might have been drawn in the Magistrates'

Court and may give any judgment and make any order which ought to have
been made. Ever since the passing of the first of these Acts in 1895 the
practice has been that the Divisional Court will not reverse any finding of fact
by the Magistrates' Court unless it appears that such finding is clearly wrong.
This practice is manifestly sound, for decisions of justices are nearly akin
to decisions of juries, and they do not and cannot be expected to give
elaborate judgments shewing the process by which they have reached their



14

decision on fact. Moreover, in so far as these questions depend on the
appreciation of the personalities involved it is well recognized that any
appellate court will be reluctant to interfere with decisions reached by those
who have not only heard the evidence but had an opportunity of summing
up the characters of the protagonists in the dispute.

The justices are, however, in practice required to give reasons for their
decision, and these appear to have been carefully drawn so as to shew the
conclusion which they reached and the relevant facts which led them to
convict the husband of cruelty. They are as follows: —

" (1) That at the time of the marriage the husband was heavily in
" debt, unbeknown to the wife, and that throughout the marriage the
" husband has not made any real or sustained effort to repair his finan-
" cial situation ; but on the contrary has involved his wife in his financial
" affairs to her detriment.

"(2) That since 1957 the husband, in spite of his wife's pleas for
" him to do so, has persistently and wilfully refused to undertake paid
" employment, and that he has not made any real effort to support his
" wife and children ;




" (3) That the constant worry and anxiety over the husband's debts
" and his wilful refusal to get work has seriously affected the wife's
" health, and that she has good reasons to fear permanent impairment
" of her health, which would affect her capacity to keep herself and
" her two daughters ;

" (4) That in September, 1960, the wife told the husband that she
" could no longer stand the strain imposed by his behaviour;

" (5) That apart from the complaint of the wife, the husband should
" have known that his conduct was having a serious adverse effect on
" his wife's health. We are satisfied that any reasonable man would
" have appreciated this, and that the husband must have known that
" a continuance in his course of conduct would have an injurious
" effect on his wife's mental health ;

" (6) We reject entirely the husband's contention that by looking
" after the garden and poultry at Rivenhall he was making a sufficient
" contribution towards maintaining his wife and children, thus leaving
" him free to devote virtually his whole time to developing his inven-
" tion. We consider that a husband in his position in life should as a
" matter of course cultivate the garden and do the heavier domestic
" tasks, such as carrying coal, and that no husband in his position is
" entitled to expect his wife to maintain him in return for such normal
" duties. We also consider that on the facts of this case it was the
" clear duty of the husband to obtain work, to maintain himself, and
" to contribute to the support of his wife and children, and that his
" failure to do so was the direct cause of his wife's ill health."

I have already stated that the facts are not in dispute, but it is desirable
to refer to some of the evidence in order to shew what the wife's case was.
She was married to the husband in 1946, she being then 38 and he 43 years
of age. They had two daughters born in 1947 and 1949. At the time of
the marriage they lived in a farm belonging to the husband, and shortly
before the birth of their elder daughter the husband tried to borrow money
from the wife to pay for drainage and improvements. She then learned that
the farm was heavily mortgaged, that he owed other debts and could not
support a wife and child. The husband was never free from debt, although
the wife lent him money to pay off pressing creditors, including £200 in
the year 1951 which has not been repaid.

In the year 1957 the farm was sold and a further property, " Rivenhall",
was bought in the name of the husband for £3,000 and subject to a mortgage
of £2,250. In 1960 the husband transferred " Rivenhall" into the wife's
name and it so remains, subject to the mortgage. The wife thereafter ran
the house as a guest house for elderly people. This produced an income



15

for her of £1,300 a year out of which she said she paid everything and had
done so ever since they moved into the place.

The husband looked after the garden and the poultry, but his main interest
was inventing, in connection principally with agricultural machinery, which
did not prove remunerative. The wife's complaint was not that she'was
short of money but that her husband, so far from providing anything to
keep down the mortgage and provide for his family, involved her in his
debts so that she was embarrassed by the demands of creditors and the
calls of bailiffs which, no doubt, would come to the knowledge of the guests.

The wife made no complaint at either hearing of any aggressive conduct
on the part of the husband. She stated at the first hearing that the only
time she had any bother with him was over finance and from this statement
she never departed. At the second hearing she said: " I do not claim that
" I am short of money. I have to work to raise money to pay off the
" mortgage and keep myself. One expects the husband to pay ".

The husband was the one to complain of hostile conduct, saying that
he thought the wife intended to make life unpleasant for him and gave
examples of her conduct. One instance of her conduct emerges from the
wife's own evidence, for she complained that the husband was asserting his
authority towards his children and making himself a nuisance. She admitted
that she took them out on one occasion to stop him taking them to Nantwich.
Latterly she refused to provide him with food and only cooked his meals
at weekends and he did his own washing and ironing (apart from bed linen).

In this unhappy state of affairs from April, 1961, the wife complained of
headaches, agitation and unexplained fits of weeping, sleeplessness and short
periods of amnesia. Her doctor formed the impression that she was suffering
from a moderately severe anxiety state precipitated by her financial and
marital difficulties. He felt that if her domestic circumstances did not
improve her psychological condition might well become worse in spite of
treatment.

Although the justices nowhere in their reasons use the word " cruelty "
nor do they find that the complaint that the husband has been guilty of
persistent cruelty was made out, yet they must have formed the opinion
that cruelty was proved for otherwise it is not to be supposed that they
would have made an order the effect of which was to bar the husband
from his wife's society. Although the statute does enable justices to pro-
nounce a separation even upon the finding of wilful neglect to maintain,
it is not the practice so to do for the reasons set out in the judgment of
the Court of Appeal in Harriman v. Harriman [1909] P 123, see the judgment
of Kennedy, L.J. at page 151:

" In my judgment the history of this provision, the language of the
" context, the very nature of the protection which the provision gives, and
" the enactment in (a) that it shall have the effect of a decree of judicial
" separation on the ground of cruelty unite in shewing that the discretion
" given by Parliament to the Court of summary jurisdiction as to the
" framing of orders under ss. 4 and 5 is not rightly exercised, if this
" non-cohabitation provision is inserted in the order made for the wife's
" relief, except where the Court has been satisfied by evidence, in the
" words of the Act of 1878, 'that the future safety of the wife is in
" ' peril'". He goes on: "I do not mean, in saying this, that the
" non-cohabitation provision ought to be inserted in the order only
" where the wife has proved the convictions for assault or the persistent
" cruelty expressly specified in s. 4 of the Act of 1895. It is possible that
" a wilful neglect to maintain may be proved to have been accompanied
" by occasional acts of dangerous violence, and so justify the inclusion
" in the order of the non-cohabitation provision. But I am clearly of
" opinion that it is neither in accordance with the intention of the
" Legislature, as appearing in this statute, nor in the interest of the
" wife or of public morals, that the provision should be included in an"
" order which is sought for and obtained solely on the ground of the
" husband's desertion."

16

True that since these words were used Parliament has re-enacted the
Act of 1895 in substantially the same terms, but the practice laid down in
Harriman's case has been consistently followed; cf. the judgment of the
President in Jolliffe v. Jolliffe given on the 16th January, 1963, after his
attention had been drawn to the observations of two of the members of the
Court of Appeal on this topic in the present case.

Your Lordships are therefore, in my opinion, bound to deal with this
appeal on the footing that the husband has been found guilty of persistent
cruelty. This finding appears to me a finding which is wholly wrong and
ought not to be allowed to stand.

I have already indicated, I hope sufficiently, that findings of justices in
matters of this kind ought not to be disturbed where there is evidence to
support them, but I can find no trace of any conduct alleged by the wife
against her husband which can be properly called cruel. It is not, I think,
profitable to use other adjectives by way of explanation, substitution or
definition. The word " cruel " is enough, is readily understood without
more and there is no need to speak of unreasonable, reprehensible or inexcus-
able conduct,

True that the Courts have taken a stand in that conduct which readily
merits the adjective cruel is not to be the basis of relief unless injury to
health or a reasonable apprehension of the same is established. This was
established by Russell v. Russell [1897] AC 395, when by a majority your
Lordships' House decided that the disgraceful conduct of Lady Russell to-
wards her husband, while meriting the description cruel, did not measure
up to the standard set by the Ecclesiastical Courts in that no physical harm
was found to have been inflicted or was reasonably to be apprehended.

Although the members of your Lordships' House who decided that case
were divided in their judgment, none doubted the validity of the opinion of
Sir Wm. Scott in Evans v. Evans [1 Hag. Con. 35 at page 37) when he said—
" This however must be understood, that it is the duty of Courts, and
" consequently the inclination of Courts, to keep the rule extremely strict.
" The causes must be grave and weighty, and such as shew an absolute
" impossibility that the duties of the married life can be discharged. In a
" state of personal danger no duties can be discharged ; for the duty of
" self-preservation must take place before the duties of marriage, which are
" secondary both in commencement and in obligation; but what falls short
" of this is with great caution to be admitted."

The converse of the decision in Russell v. Russell, namely, that once injury
to health could be attributed to matrimonial discord then cruelty was proved,
has never, so far as I know, been advanced in this country until this case.
Counsel for the wife was at pains to emphasize that the catalogue of cruelty,
like the catalogue of negligence, is never closed. This is true. He relied
upon the observations of my noble and learned friend, Lord Tucker, to that
effect in Jamieson v. Jamieson [1952] A.C. 525 at page 550 in relation to
cases where no physical violence is averred. In such cases, of which
Jamieson's case was a not untypical example, the conduct averred in the
pleadings which alone fell for consideration was not on the face of it cruel,
but the case was sent for trial because of the averment of deliberate inten-
tion and persistence in callous conduct by the offending spouse although
aware of the effect on his wife's health. But for the averment of intent
the judgment of the lower House, holding that the pleaded case would not
sustain a charge of cruelty, would have been upheld.

Where physical violence or threats of violence are involved no difficulty
arises and the Court does not stay to enquire with what intent (in the absence
of insanity) acts are committed. By 1870 it had been accepted that what
has been called moral force combined with injury to health is sufficient
without any act of violence, see the decision of Lord Penzance in Kelly v.
Kelly [1870] L.R. 2 P. & D. 31 and 59, which has never been disapproved.
It is in cases of this kind, where no violence or threat of violence is involved,
that the question of intent becomes important and is sometimes crucial,
as it was in Jamieson's case. There is no indication that this husband ever
had the smallest intention of doing any harm to anyone, least of all his



17

wife. In what way, then, was he cruel? Was it by omission, for cruelty
may be manifested by omission as readily as by commission. To neglect a
suffering spouse or one who has by misfortune fallen into danger is cruel,
one would think, whether or not the other spouse has had anything to do
with bringing about the suffering or the danger. To speak of unwarrantable
indifference is only to illustrate that the cruel man is merciless and the
question must always be, was the conduct, be it positive or negative, cruel
according to the meaning of that word as understood by ordinary people.
If it be said that it is difficult to draw any line between what is or is not
cruel I agree, but I see no reason for attempting to establish boundaries on
one side of which cruelty lies, on the other of which it does not. No one has
hitherto attempted so to do, and at the end of it each person has to make up
his own mind after considering each case as a whole, not by asking whether
conduct is cruel and then asking whether it can in any way be justified. !
respectfully adopt the language of my noble and learned friend, Lord Reid,
in King v. King [1953] A.C. 124 at page 140 when he said, using words which
seem to me to have general application—" The question whether the Respon-
" dent treated the husband with cruelty is a single question only to be
" answered after all the facts have been taken into account".

In that case your Lordships were invited to consider some recent cases
in which the Courts had sought to give guidance in those cases where cruelty
was alleged and the acts were not on the face of them necessarily cruel
vis-à-vis the complaining spouse. The first of these was Horton v. Horton
[1940] P. 187, a decision of Bucknill J. The learned judge said: " Mere con-
" duct which causes injury to health is not enough. A man takes the woman
" for his wife for better, for worse. If he marries a wife whose character
" develops in such a way as to make it impossible for him to live happily
" with her, I do not think he establishes cruelty merely because he finds life
" with her is impossible. He must prove that she has committed wilful
" and unjustifiable acts inflicting pain and misery upon him and causing him
" injury to health."

As Lord Normand pointed out, this test may well have been adequate for
what fell to be decided in Horton's case, but it is not an adequate test in all
cases. It cannot be regarded as a test in cases which come under the head
of " unwarrantable indifference ", for example.

The same comment seems to me to be appropriate in considering the case
of Kaslefsky v. Kaslefsky [1951] P. 38. I agree with the decision, but I find it
difficult to see how " the aiming test " there put forward assists in the
conclusion, although it is a valuable guide in many cases. The majority of
the Court seems, however, to have taken the view that although cruelty was
not proved yet the husband was justified in refusing to live with his wife.
That, on the facts of the case (which was quite different from the Russell
case), I also find difficult to understand. The judgment of Denning L.J.,
who was the third member of the court, has, as I have indicated, been a very
useful guide in considering many borderline cases, repeating as he did
observations of his own in an earlier case of Westall v. Westall, 65 T.L.R.
" Aiming" is an aspect of intention. Moreover, I note that your
Lordships had the opportunity of considering Kaslefsky's case not only in
King's case but also in Jamiesons' case. I do not see how differences of
judicial opinion are to be avoided in this area. King's case is an illustration.
Your Lordships were divided three to two in favour of the finding of no
cruelty, the Court of Appeal was of the same opinion, being divided two to
one, and the learned and experienced trial judge was of the opposite opinion.

I have formed myself a clear opinion that in this case the conduct of the
husband cannot justly be called cruel, and I have looked in vain to see what
he did or left undone which qualifies him to be convicted of cruelty to his
wife. The case against him was simple enough. It was that to all intents
and purposes he was a man who did not provide for his wife's maintenance
and further got into debt and allowed his wife to suffer with him the incon-
veniences which followed. It was said, but this was not proved, that he put
her name on a document relating to a debt of his in circumstances amounting
to forgery, but I find no positive act proved against him. Willmer L.J., was
of opinion that this failure to provide was enough, but this ignores the



18

realities of the situation. The husband was not a man of means and the
wife relatively speaking was a woman of means. She never attempted to
make a case of physical suffering brought about by any failure to provide
the necessaries of life. For a man to fail to support his wife is no doubt
a matter which can be dealt with by appropriate proceedings, though I have
not myself previously heard of a case where an impecunious husband was
sued by a pecunious wife. In any event, in my opinion no cruelty was
involved, and I would allow the appeal.




Lord Pearce


my lords,

In all matrimonial disputes, whether in the Magistrates' Courts or in the
Divorce Court, the word "cruelty" has the same connotations. It has a
long history behind it. In 1857 by the Divorce and Matrimonial Causes Act
the Divorce Court took over the jurisdiction of the Ecclesiastical Courts with
the added statutory power to grant decrees of dissolution of marriage. By
section 22 it was bound in all suits other than those for dissolution to act and
give relief " on principles and rules which in the opinion of the said Court
" shall be as nearly as may be conformable to the principles and rules
" on which the Ecclesiastical Courts have heretofore . . . given relief " (see
now Judicature Consolidation Act, 1925, sections 32 and 103). The former
relief by decree a mensa et thoro, of which cruelty had been a ground, became
relief by a decree for judicial separation (section 7). And a decree for
judicial separation might be obtained either by the husband or the wife
" on the ground of adultery or cruelty or desertion without cause for two
" years and upwards " (section 16). The Matrimonial Causes Act, 1937, first
empowered the Court to grant a decree of dissolution on the ground that the
Respondent " has since the celebration of the marriage treated the petitioner
" with cruelty ".

From the days of Lord Stowell down to the present it has been acknow-
ledged that to support a finding of cruelty the matter must be grave and
weighty. And in Russell v. Russell [1897] AC 395, this House finally settled
that conduct must, in order to constitute cruelty in the legal acceptance of
the term, be such as to cause danger to life, limb, or health, bodily or
mental, or to give rise to a reasonable apprehension of such danger. (See
Lord Merriman in Jamieson v. Jamieson [1952] A.C. 525 at page 544.)

Thus there have long been two safeguards against any extension of relief
to cases founded on mere trivialities and incompatibility.

The earlier cases of cruelty dealt in the main with acts of physical violence,
and were little concerned with motives or intentions. In Dysart v. Dysart
in 1844 (1 Rob. Ecc. 106) Dr. Lushington said: " It is for me to consider the
" conduct itself and its probable consequences; the motives and causes
" cannot hold the hand of the Court unless the wife be to blame, which is a
" wholly different consideration ". But it appears clearly from the cases
that the Court's objective consideration took account of the particular
individuals concerned and the particular circumstances of each case.

In Kelly v. Kelly [1879] L.R. 2 P. & D. 59, which Lord Merriman described
as " the leading case in England on the subject of cruelty without physical
" violence " (in Jamieson v. Jamieson [1952] A.C. 525 at page 540), the Court
considered a course of tyrannous conduct intended to dominate the wife
and bend her to the husband's will. The full Court there found cruelty
proved and Lord Penzance expressly stated (at page 72) that the husband
" says that he does not desire to injure her, and it has never been asserted that
" he does".

In various cases thereafter it was shown that intention to injure or to be
cruel was not a necessary ingredient of cruelty. The words of Shearman, J.



19

in Hodden v. Hodden (" The Times " 5th December, 1919) express the matter
succinctly: " I do not question ... that he had no intention of being cruel...
" but ... his intentional acts amounted to cruelty." The same line of
thought was followed by the Court of Appeal in the case of Squire v. Squire
[1949] P. 51 (approved by Lord Merriman in Jamieson v. Jamieson (supra)
at page 541). Tucker, L.J. there said: (p. 56): "It is to be observed that in
" the well-known and much-quoted case of Russell v. Russell ([1897] AC 395)
" it is nowhere suggested that motive is a necessary element in cruelty ".

In Jamieson v. Jamieson (at p. 535) Lord Normand, having quoted the
Lord President's observation in the Court below, that in cases of mental
cruelty " the guilty spouse must either intend to hurt the victim or at least
" be unwarrantably indifferent as to the consequences to the victim",
continued: " I do not propose to go into that because I wish to avoid the
" discussion of hypothetical cases and because I am of opinion that actual
" intention to hurt may have in a doubtful case a decisive importance, and
" that such an intention has been averred here. Actual intention to hurt is
" a circumstance of peculiar importance because conduct which is intended
" to hurt strikes with a sharper edge than conduct which is the consequence
" of mere obtuseness or indifference." Those words are inconsistent with the
view that intention was an essential element. So, too, Lord Merriman's
opinion. He quoted with approval (at p. 540) the words of Lord Penzance in
Kelly v. Kelly set out above, and those of Shearman, J. in Hodden v. Hodden
(supra). My noble and learned friend, Lord Reid, said (at p. 549). " I do
" not doubt that there are many cases where cruelty can be established with-
" out it being necessary to be satisfied by evidence that the defender had
" such an intention, but I do not intend to decide anything about such
" cases." Lord Tucker said (at p. 550): " Every such act must be judged in
" relation to its attendant circumstances, and the physical or mental con-
" dition or susceptibilities of the innocent spouse, the intention of the offend-
" ing spouse and the offender's knowledge of the actual or probable effect
" of his conduct on the other's health . . . are all matters which may be
" decisive in determining on which side of the line a particular act or course
" of conduct lies."

Thus in all the opinions there appears the view that intention, though
it may be a deciding factor in some doubtful cases, is not essential to cruelty.

There is nothing in King v. King [1953) A.C. 124 which is inconsistent with
that view. My noble and learned friend, Lord Reid, there said: " It has
" long been recognised that a malevolent intention while not essential to
" cruelty is a most important element where it exists." The case concerned a
nagging wife whose husband's conduct was thought by three of their Lord-
ships to have given the wife sufficient provocation and excuse for her be-
haviour. Two of their Lordships thought otherwise. Thus it was a border-
line case which turned on the extent to which the husband's conduct provided
an excuse to the wife in the particular facts of the case. It would be wrong
to read words intended to refer to the particular problem before the House
as intended to be of universal application, particularly when the authors of
them disclaimed such an intention. My noble and learned friend, Lord Reid,
(who was one of the majority) having described the case as " a narrow and
" difficult case ", said: " I do not intend to try to define cruelty. I doubt
" whether any definition would apply equally well to cases where there
" has been physical violence and to cases of nagging or to cases where there
" has been a deliberate intention to hurt and to cases where temperament and
" unfortunate circumstances have caused much of the trouble. But in cases
" like the present, the wife's conduct must at least be inexcusable after
" taking everything into consideration."

Lord Normand said (at p. 129): " I have no doubt that the test whether
" the conduct was wilful and unjustifiable . . . was an adequate test for what
" remained to be decided in Horton's case. What is open to question is
" whether it can be taken to be an adequate test in all cases of cruelty
" by nagging accusations. I think it is not always an adequate test, and that
" Bucknill, J. did not put it forward as a universal and exhaustive test in



20

" this type of case ... If the trial judge in the exercise of his discretion
" comes to the conclusion that the conduct of the respondent is, notwith-
" standing the provocation received or the difficulties and stresses endured,
" really an inexcusable offence against the other spouse, his judgment should
" be respected as conclusive." In the present case no question of provocation
or of bad behaviour by the Petitioner arises.

Those words were not, I think, intended to limit, so far as cases of nagging
and accusations and the like are concerned, the generality of any rule that
intention is not an essential element in cruelty. An act may be found
inexcusable although the actor had no harmful intention.

It has always been clear that an intention to hurt invests any act or conduct
with a greater significance. This axiom is, however, merely a piece of jury
wisdom which a sensible tribunal bears in mind when performing its task
of assessing whether a particular act or course of conduct was cruel. It is
wrong to exalt it into a criterion of legal principle which will decide in all
cases where there is no physical violence whether conduct can be cruel.

It was natural that with the increasing incidence of cases where no physical
violence was involved the question of intention should take on an added
importance. For whereas a blow speaks for itself, insults, humiliations,
meanesses, impositions, deprivations, and the like may need the interpreta-
tion of underlying intention for an assessment of their fullest significance.
And that interpretation may in some cases turn the scale.

The introduction of divorce on the ground of cruelty by the 1937 Act
appears to have given rise to fears that divorce might be granted for mere
trivialities or incompatibility in spite of the existing safeguards of gravity
and injury to health. Instead of following the simple and direct approach
of Dr. Lushington (supra), namely, considering " the conduct itself and its
" probable consequences ", the Court has in some cases pursued a devious
and confusing course. In Kaslefsky v. Kaslefsky [1961] P. 38 it was laid down
by the Court of Appeal that conduct to be cruel must be aimed at the victim.
Thus an element of intention was made a necessary ingredient in cruelty.

The germ of the doctrine that conduct is not cruel unless it is aimed at
the other party may, I think, be found in Horton v. Horton [1940] P. 187.
There Bucknill, J. in granting a decree on the ground of cruelty, distinguished
between conduct which was caused merely by " the development and mani-
" festation of the wife's character acting so to speak in its own sphere ",
and " wilful and unjustifiable conduct to him which was an intrusion upon
" and did violence to his own mode of living." The former was in his
judgment not cruelty but the latter was.

Later in Westall v. Westall (65 T.L.R. 337) Denning, L.J. said obiter that
" intention is an element in this sense, that there must be conduct which is,
" in some way, aimed by one person at the other ". Kaslefsky's case adopted
that dictum, and laid down that to secure a divorce on the ground of cruelty
there must be shown on the part of the respondent conduct which is
" aimed at", that is to say, actions or words actually or physically directed
at, the petitioner or done with intention to injure him or to inflict misery
on him.

The decision on the facts was not of importance. The cumulative effect
of the wife's acts appears from the report to have been somewhere on the
border line of cruelty, but the evidence of injury to health was unsatisfactory.
Without hearing the evidence it would be difficult to say whether a decree
should or should not be granted. But the general approach laid down
has been treated as binding and has therefore affected later decisions. So
far as it laid down that unjustifiable conduct to the children could not be
cruelty unless it was done for the purpose of wounding the other spouse, its
effect has been satisfactorily mitigated by the Court of Appeal in Wright v.
Wright [1960] P. 85, and in other respects the reasoning in Waters v. Waters
[1956] P. 344 has avoided some of the difficulties caused by it.

In Kaslefsky's case the Court apparently considered that the use of the
word " treated " with cruelty in the 1937 Act had imparted a slightly different
approach to cruelty (Bucknill, L.J. at 45). This, as it seems to me, is



21

erroneous, since I regard the phrase "treated with cruelty" as being no
more than a convenient description of a situation where there has been cruel
treatment of which the respondent was the author. In an article on this
subject by the Editor of the " Law Quarterly ", 79 L.Q.R. 104, there is the
apt observation: "If instead of using the word 'cruelty' Parliament had
" seen fit to use the word ' stupidity ', which in fact is one of the major causes
" of divorces, must it be said that the words ' treats his wife with stupidity'
" mean either that the man is stupid or that he intends his act to be
" stupid."

I have sympathy with the Court's desire in Kaslefsky's case to supply some
mesh that would separate the grain from the chaff: but the introduction of
the necessity for a petitioner to prove that conduct was aimed at him or her
has created confusion and difficulty.

Can the words " aimed at" include acts done without intention but with
knowledge (and also perhaps some regret) that they will strike the other?
Can it include acts done with an unreasonable lack of appreciation of the
fact that they will strike the other? Can it include acts done with callous
indifference as to whether the acts strike the other or not? In my view
the test is not a happy one from a practical point of view and it can only
be made to work if it is patched by presumptions.

On such a doctrine the Court is at once faced with the difficulty that much
cruelty is purely selfish and is not aimed at the victim nor prompted by any
intention or desire to injure. Not infrequently acts which any reasonable
person would regard as cruel acts, or which any reasonable person would
have known to be hurtful and to be injuring the health of the victim, are
done by a respondent who is so bigoted, or obtuse, or insensitive, or self-
centred that he or she did not in fact realise that these acts were cruel or
injurious or intend that they should be. If the Court insists on proof of
intention it must then either allow to the bigot, the obtuse, the insensitive,
the self-centred a free hand to be as cruel as seems reasonable to their
bigotry, stupidity, insensitiveness, or selfishness, or else it must make
disingenuous presumptions in order to pay lip service to its insistence on
intention.

A Court may, as a piece of prima facie reasoning, presume that a person
intends the probable consequences of his acts. But if that presumption is
rebuttable and the Court insists on proof of intention, then in many cases
of cruelty it cannot honestly give relief against the bigot, the obtuse, the
insensitive, the self-centred. To avoid absurdity it may say—" I think
" he must have realised and must have intended to hurt",—well knowing
that in truth this particular man did not.

My noble and learned friend, Lord Reid, in Jamieson v. Jamieson [1952]
A.C. at page 549 reserved his opinion " whether, or to what extent, it is neces-
" sary or proper to impute an intention which did not exist by invoking a legal
" presumption that everyone must be supposed to intend or foresee the natural
" and probable consequences of his acts ".

Lord Merriman, P. always made clear that such a presumption is re-
buttable (for example, Simpson v. Simpson [1951] P. 320 at page 333 ; Waters
v. Waters [1956] P. 344, and Jamieson v. Jamieson (supra) at page 541.) See
also Lang v. Lang [1955] AC 402 at page 428. But some of the expressions
in other cases have seemed to treat the presumption as irrebuttable, which is
tantamount to saying that whatever the true intentions of the actor he must be
taken to intend the probable consequence of his act. If an irrebuttable pre-
sumption is allowed (and I see no justification for it save only as an escape of
last resort from the absurdities into which insistence on proof of intention can
lead) one reaches by a devious route the same objective test which Dr.
Lushington applied when he considered " the conduct itself and its probable
" consequences ".

One may take, for example, the case of a husband whose wife has become
seriously ill abroad and who leaves her timorous, unable to speak the
language, without adequate nursing arrangements or currency, simply because
he must return to watch a football match which he feels that he cannot



22

miss. In such a case he would probably express and feel some regret at
her plight and feel sorry that he cannot spare her any money from his own
comforts and cannot make better arrangements, but he hopes optimistically
that it will all work out somehow. I doubt if any Court would say that
was not cruelty; and yet, in order so to hold, it would, if intention or
aiming be a necessary ingredient, have to deem an intention or aim which
it knows to be untrue. To say that unwarrantable indifference will suffice
as intention or aim is no satisfactory answer to the problem, since in-
difference is the antithesis of intention or aim. In such a case the test of
" aiming at" is clearly inappropriate. If one endows the wife in the case
I have envisaged with a robust and independent nature, a knowledge of the
language, a less severe illness, a larger supply of currency and more adequate
nursing arrangements and gives to the husband a more cogent reason for
returning to England, the element of cruelty departs: yet it may return if
he acted with the deliberate intention of hurting her.

If the husband was too obtuse to realise how unkindly he was acting, that
may be some excuse, but not (in those circumstances) any adequate excuse
such as would prevent the conduct being cruel. If he appreciated but was
indifferent to her suffering, the cruelty was worse. If he intended to hurt
it was worst of all. The question whether he aimed it at her is decisive
only of those acts of which one can predicate that they are cruel when
intentional but not cruel when unintentional and it is not possible to form
categories of acts which come exactly within that dubious class. For so
often, as in the case envisaged, cruelty is a question of degree.

In my opinion, therefore, the Court in Kaslefsky's case erred in saying that
" aiming at" the petitioner was an essential ingredient in cases of cruelty.
So, too, in Eastland v. Eastland [1954] P. 403, which followed and applied the
reasoning in Kaslefsky's case.

I do not find the test of the behaviour which the spouse " bargains to
" endure for better, for worse " (see Buchler v. Buchler [1947] P. 25 at page 46
and Horton v. Horton [1940] P. 187 at page 193) helpful since it confuses
rather than clarifies. Much of the felicitous and often quoted language of
Asquith, L.J. in Buchler v. Buchler has value and in particular his notion of
the " reasonable wear and tear of married life ", which is a useful reminder of
the fact that in many marriages there are many complaints that could be put
forward by either party, but that only grave and weighty matters causing
injury or apprehended injury to health will suffice to support a charge of
cruelty or constructive desertion. The words " for better, for worse ", how-
ever, carry religious associations knit up with the indissolubility of marriage
and are of little help in estimating whether a spouse is legally entitled to
the relief provided by Parliament. See the observations of Danckwerts, L.J.
in Hall v. Hall [1962] 3 All E.R. 518 at page 524. It may be that those words
influenced the actual decision since, like Danckwerts, L.J. (at page 525), I find
it hard to understand how the Court on the reported facts came to overrule
the decision of the Judge of first instance.

Nor do I think that the attempt in Horton's case to exclude from cruelty
acts caused merely by the natural development of a spouse's character
within its own sphere is helpful. Allowances must always be made for
temperament, and mere temperamental disharmony simpliciter is not cruelty.
But if a temperament which naturally tends to unkindness or selfishness or
callousness develops to a point at which its acts are cruel, whether inten-
tionally or not, it cannot be right to say that the other spouse must endure
it without relief. Nor can one helpfully say that development of character
is within its own sphere if its emanations affect and cause injury to the
other spouse. Marriage by its nature causes one party to be affected by
most of the reprehensible conduct on the part of the other, and usually it
is obvious that it will be so.

When the two parties and the evidence are before the Court it is easier
to form a view than to pronounce in the abstract. That view, though it
makes allowance for the subjective emotions, temperaments, and excuses
of the individuals, judges the conduct by its probable consequences, and
thus decides the question of fact and degree whether this conduct between



23

these spouses was cruel. It is impossible to give a comprehensive definition
of cruelty, but when reprehensible conduct or departure from the normal
standards of conjugal kindness causes injury to health or an apprehension
of it, it is, I think, cruelty if a reasonable person, after taking due account
of the temperament and all the other particular circumstances, would con-
sider that the conduct complained of is such that this spouse should not be
called on to endure it The judgments of the Court of Appeal in Hall v. Hall
[1962] All E.R. 518 propounded a similar test in a case of constructive
desertion, save that in such a case there need be no injury to health. A
relevant question is whether the conduct is excusable (per Lord Reid in
King v. King [1953] A.C. at page 145 and Willmer, L.J. in Usmar v. Usmar
[1949] P. 1 at page 9, " forgivable in the circumstances "). For there are two
sides to be considered in a case of cruelty—from the Petitioner's side ought
this Petitioner to be called on to endure the conduct, from the Respondent's
side was this conduct excusable?

I agree with Lord Merriman, whose practice in cases of mental cruelty
was always to make up his mind first whether there was injury or appre-
hended injury to health. In the light of that vital fact the Court has then
to decide whether the sum total of the reprehensible conduct was cruel.
That depends on whether the cumulative conduct was sufficiently weighty to
say that from a reasonable person's point of view after a consideration of
any excuse which this Respondent might have in the circumstances, the
conduct is such that this Petitioner ought not to be called on to endure it.

" What on paper may seem little more than a series of pinpricks ", said Lord
Normand in Jamieson v. Jamieson [1952] A.C. at page 536, " may present a
" very different aspect when it has been developed in evidence." The
quality of every piece of conduct is affected by its context and by that
which precedes and follows it. And it is to be remembered that, as my
noble and learned friend, Lord Reid, pointed out in King v. King [1953] A.C.
124 at page 140, "It is not right first to ask whether the respondent's
" conduct was cruel in fact and then to ask whether it can in any way be
" justified. The question whether the respondent treated her husband with
" cruelty is a single question only to be answered after all the facts have
" been taken into account." And (at page 138). " In a case of this character
" the wife's conduct must be judged in the light of the whole history of the
" marriage ".

It was suggested by Mr. Latey that we should evolve a formula which
would exclude such conduct as that of the Appellant from cruelty unless
there was an intention to hurt, and that then having found no such intention
we should acquit him of cruelty. But cruelty is a question of fact and
degree, and no legal formula can resolve its peculiar problems. It would no
doubt simplify decisions in accident cases if the law evolved a legal principle
that all driving over 40 miles per hour is negligent and that no driving under
that speed could be negligence; but such a principle would be an evasion of
the Court's duty to decide the question of fact. So, too, with cruelty cases
which depend on an even wider variety of matters than negligence cases.
The particular circumstances of the home, the temperaments and emotions
of both the parties and their status and their way of life, their past relation-
ship and almost every circumstance that attends the act or conduct complained
of may all be relevant. I agree with the words of Lord Tucker when he
said in Jamieson v. Jamieson [1952] A.C. at 550: " It is in my view equally
" undesirable—if not impossible—by judicial pronouncement to create
" certain categories of acts or conduct as having or lacking the nature or
" quality which render them capable ... of amounting to cruelty in cases where
" no physical violence is averred."

Since the personalities of the parties are an important element in a decision
whether conduct between those two persons has been cruel, it follows that
a Court which relies on notes and has not seen the witnesses must use great
caution. There are, of course, cases where it can say that whatever the
personalities of the parties or the manner of giving their evidence, it can
be asserted that the conduct was or was not cruel. But often that which
the justices saw and heard may properly have turned the scale. In such



24

a case reversal of their decision is to create, not remedy, injustice. Was there
material here on which the justices, with the advantage of hearing and
seeing the witnesses, could properly reach their conclusion?

Mr. Latey seeks to put before us the image of a man who was a good
husband in all save his incapacity to work or to provide money for the
home. It is more probable that the justices formed the view that he
was not merely lazy but callous and selfish. Early in the marriage he
borrowed her savings and he " involved her in his financial affairs to her
" detriment". She was a competent, stable person and she managed by
hard work in the guest house to keep the family from want. " Since 1957 the
" husband, in spite of his wife's pleas for him to do so, has persistently
" and wilfully refused to undertake paid employment." He has subjected
her to constant worry and anxiety over his debts. Creditors and bailiffs
have come to her guest house and embarrassed her courageous efforts to
make a living for the family. He has insisted on remaining on the premises,
when under the circumstances the wife naturally wanted him to depart.
'Under the pressure of such a situation the wife has paid sums to his creditors.
Apparently he has actually gone to the length of signing her name to a
promissory note in order to obtain money for his own purposes—a course
which was obviously likely to cause her great anxiety. In September, I960,
he was warned that his wife could no longer stand the strain imposed by
his behaviour. Moreover, any reasonable man, as the Justices found, would
have appreciated that his conduct was having a serious adverse effect on
his wife's health.

In the result a capable, well-balanced woman who has endured much stress
for several years has been reduced to " headaches, agitation and unexplained
" fits of weeping, sleeplessness and short episodes of amnesia ". The doctor
describes her condition as " a moderately severe anxiety state precipitated
" by her financial and marital difficulties ... If her domestic circumstances
" do not improve her psychological condition may well become worse in
" spite of treatment ".

The husband is, according to the wife, arrogant and bigoted. Whether
that description is justified we do not know, but the justices had an oppor-
tunity of getting some impression of his personality. There is created by the
evidence and the reasons the picture of a man who has been, over the years,
parasitical, selfish and callous to the physical undoing of a healthy woman
working hard to support herself and her children.

I agree with Willmer and Davies, L.JJ. that the conclusion of the justices
was a conclusion which they could properly reach on the evidence and
on the reasons given. I also agree with the reasoning of the majority in
the Court of Appeal save in so far as it was necessarily affected by Kaslefsky's
case.

I would therefore dismiss the appeal.







(P/30874) Wt. 8024—149 35 8/63 St.S.