Bastable v Bastable
| Jurisdiction | England & Wales |
| Judgment Date | 22 May 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0522-5 |
| Docket Number | 1965 (D). No. 769. |
| Court | Court of Appeal (Civil Division) |
| Date | 22 May 1968 |
[1968] EWCA Civ J0522-5
Lord Justice Wilimer,
Lord Justice Winn and
Lord Justice Edmund Davies.
In The Supreme Court of Judicature
Court of Appeal
Civil Division.
Appeal from O'Connor J. Nottingham Assizes 18th December, 1967.
Revised
Mr PAUL G. HUGHES (instructed by Messrs Field, Roscoe & Co., Agents for Messrs Warren & Allen, Nottingham) appeared on behalf of the Appellants (Respondent and Co-Respondent).
Mr JOHN J. HEAVE (Instructed by Messrs perry, Parr & Ford, Nottingham) appeared on behalf of the Respondent (petitioner).
(An application for leave to adduce further evidence was not proceeded with).
In this case there is no doubt but that the husband is entitled to a decree of divorce against his wife, for it is not, and never has been, in dispute that she deserted him. This appeal, however, is brought by the wife and the co-respondent against the finding of the learned judge, Mr Justice O'Connor, that the wife was additionally guilty of the offence of adultery with the co-respondent. The evidence adduced in support of the chare of adultery, as Is not unusual, consisted entirely of circumstantial evidence upon which the court was invited to drew the inference ofadultery. But both the wife and the co-respondent have throughout dented that they were ever guilty of adultery.
I confess that I have found the question raised by this appeal an exceedingly difficult one. It seems to me that much must depend upon what is the appropriate standard of proof to be exacted in relation to a charge such as that made here. If I may say so with all possible respect, sitting in this court I do not find it altogether easy to follow the directions contained in various statements made by members of the House of Lords. There have been two cases in relatively recent years in the House of Lords in which various members of the House expressed views with regard to the standard of proof required in matrimonial cases. One of them was the case of Preston-Jones v. Preston-Jones. (1951 Appeal Cases 391), the other was the case of Blyth v. Blyth, (1966 Appeal Cases 643). In both those cases various members of the House made statements which we can treat only with the utmost respect in relation to the standard of proof required. But it is fair to say that in both cases what they said was not strictly necessary for the decision of the matter in hand, but must be regarded as obiter. In Preston Jones v. Preston-Jones the question being debated was whether adultery was to be inferred from an unusual period of gestation, and what their Lordships were dealing with was an argument that in such circumstances nothing short of proof with scientific certainty would satisfy the burden upon a petitioner. The House of Lords rejected that submission. But Lord MacDermott, in a passage in his speech which has often been cited, expressed the view that nothing short of proof beyond a reasonable doubt would be sufficient to satisfy the burden of proof on a petitioner. With that expression of view Lord almonds agreed, and so did Lord Morton of Henryton.
In Blyth v. Blyth the question under consideration was not the standard of proof required in relation to a matrimonial offence, but what was the standard of proof in relation to condonation. Again the members of the House discussed In their speeches what they conceived to be the appropriate standard of proof in support of an allegation of a matrimonial offence. The dissenting minority,consisting of Lord Morris of Borth-y-Gest and Lard Morton of Henryton, adhered to the view which had been expressed in Preston-Jones, to which I have already referred. On the other hand, Lord Denning thought that a considerably lower standard of proof could be adopted. He pointed out that what had been said in Preston-Jones was obiter, and be for his part preferred the view which had been expressed in an Australian case of Wright v. Wright, as against that which had been decided by the Court of Appeal in this country in Ginesi v. Ginesi, (1948 Probate Division 179). Lord Pearce took the same view as Lord Denning had taken
So far, therefore, the House of Lords in Blyth v. Blyth was divided, two against two, on the question what is the appropriate standard of proof to be exacted in support of a charge of a matrimonial offence. The fifth member of the House, Lord Pearson, adopted what I can only describe as an intermediate position. Having quoted at some length from what Lord MacDermott said in Preston-Jones v. Preston-Jones, Lord Pearson commented at page 678 of the report: "This language is consistent with the view that the word 'satisfied' does not, as a matter of interpretation, mean 'satisfied beyond reasonable doubt', and that the requirement of proof beyond reasonable doubt may be limited to the grounds for dissolution and may not extend to the matters referred to in subparagraphs (b) and (c)", which relate to matters of connivance, condonation, and so forth. In other words, as I read what Lord Pearson was saying, he would have been disposed to apply the standard of "satisfaction beyond reasonable doubt" where proof of a matrimonial offence is being considered, but would not apply that standard in relation to such matters as condonation, which was the subject-matter of the appeal to the House of Lords in that case. It will be seen, therefore, that for us who sit in this court it is not altogether easy to determine exactly what standard of proof should be applied In relation to proof of a matrimonial offence such as adultery.
When the case of Blyth v. Blyth was before this court I ventured to say that I agreed with the view expressed by LordJustice Denning (as he then was) in Bater v. Bater, (1951 Probate Division 35) and repeated by this court in Hornal v. Neuberger Products Ltd. In that oft-quoted passage, Lord Denning said: "The difference of opinion which has been evoked about the standard of proof in recent cases may well turn out to be more a matter of words than anything else. It is, of course, true that by our law a higher standard of proof is required in criminal cases than in civil oases. But this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. As Chief Justice Best and many other great judges have said: 'in proportion as the crime is enormous, so ought the proof to be clear'. So also in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature; but still it does require a degree of probability which is commensurate with the occasion. Likewise, a divorce court should require a degree of probability which is proportionate to the subject-matter". Until the matter has been further considered by the House of Lords, and further guidance has been received, I propose to direct myself in accordance with that statement, of principle.
In the present case, what is charged is "an offence". True, it is not a criminal offence; it is a matrimonial offence. It is for the husband petitioner to satisfy the court that the offence has been committed. Whatever the popular view may be, it remains true to say that in the eyes of the law the commission of adultery is a serious matrimonial offence. It follows, in my view, that a high standard of proof is required in order to satisfy the court that the offence has been committed.
Turning now briefly to the circumstances of this case, as I have already said, what is relied on here is circumstantial evidence of conduct as between the wife and the co-respondent which, it is claimed, points to the conclusion that they were carrying on an adulterous association. The husband and wife had been married since 1949. It is common ground that they separated in December 1964. It is common ground that that separation took place because the wife refused to live with the husband any more. It is accepted, as I have already indicated, that the conduct of the wife amounted in all the circumstances to an act of desertion.
The parties had got to know as social friends the correspondent and his wife, Mr and Mrs Sanders, some time during 1963, that is to say, a year or more before the separation took place. It is not in dispute that, at any...
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