Blacker v Blacker
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE WILLMER |
| Judgment Date | 05 April 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0405-1 |
| Court | Court of Appeal |
| Date | 05 April 1960 |
[1960] EWCA Civ J0405-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson
Lord Justice Willmer and
Lord Justice Devlin
Mr. DAVID KARMEL, Q.C. and Mr. A.B. HOLLIS (instructed by Messrs. J.E. Baring & Co.) appeared on behalf of the Appellant (wife, Petitioner).
Mr. F. DONALD MCINTYRE, Q.C. and Mr. D. WHEATLEY (instructed by Mr. C. E. Maplestone) appeared on behalf of the Respondent (Husband). (Cross-Appellant).
On April 3rd, 1957, the wife petitioned for divorce on the ground of cruelty, and on the 13th April, 1957, the husband answered by denying the cruelty and alleging cruelty and praying for divorce on the same ground. The suit came on for hearing on June 2nd, 1959, and continued until June 8th, when, the husband having abandoned his charge of cruelty, judgment was entered dismissing both allegations of cruelty. Neither party has appealed against this part of the judgment.
The parties had separated on December 31st, 1955: namely, less than three years before petition and answer but more than three years before the hearing. At the hearing each party sought to charge desertion against the other and obtain a divorce on that ground, relying upon the provisions of section 1 subsection 1 of the Matrimonial Causes Act, 1950, which provides; "A petition for divorce may be presented to the court either by the husband or the wife on the ground that the respondent…. (b) has deserted the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition".
In what was no doubt a laudable attempt to save the costs of fresh proceedings being instituted, leave was given to both parties to amend as follows: "And it is ordered that the respondent do amend the answer by way of cross-petition to allege desertion….and that service be effected in court. And it is ordered that the petitioner do amend her reply by way of answer to the cross-petition….and that service be effected in court". These amendments were duly made and supported by affidavits as the rules required. The learned judge's order shows that he dismissed the husband's cross-petition based on desertion and also the wife's charge of desertion contained in her amended reply, which, although not described as a new petition, was in effect such.
There appears to have been some confusion as a result of these amendments adding additional charges because, although the learned judge dismissed both charges of desertion in his order, he made no reference at all to the wife's charge of desertion in his spoken judgment. He cannot be criticised for this since he was addressed by her Counsel in his final speech on the issue of cruelty alone. Both parties have appealed against the dismissal of these charges of desertion and have asked this court to pronounce a divorce on the ground of desertion; and in the case of the petitioner there is the anomalous position that she is relying, as her main ground of appeal, on the learned judge's failure to deal with the charge of desertion which she did not press before him.
The question is whether there is in this suit any jurisdiction to deal with the desertion issue which each party now seeks to raise. This cannot be done simply by amendment, for that would he to defeat the plain language of the statute, which requires the period of three years to elapse not before the amendment of but before the presentation of the petition. Compare Spawforth v. Spawforth (1946 Probate, page 131), where an attempt was made to circumvent the statute by a supplemental petition, three years' desertion not having run before the date of the petition but having expired before the date of the supplemental petition. The supplemental petition was held to be the equivalent for this purpose of an amendment. See Sandler v. Sandler (1934 Probate, page 149). The attempt accordingly failed.
The question is, can the same result be achieved by cross-petition? The answer to this is in the affirmative if the three years have expired before the presentation of a cross-petition. For this purpose an original answer may be regarded as a cross-petition. See Faulkner v. Faulkner (1941 2 All England Reports, page 748), for by section 6 of the Matrimonial Causes Act, 1950, the court may give to the respondent the same relief to which he or she would have been entitled if he or she had presented a petition seeking for such relief.
If there is a separate cross-petition there is no obstacle to this being consolidated with the original petition; and in Robertson v. Robertson (1954 3 All England Reports, page 413) Mr. Justice Barnard allowed a cross-petition to be included in an answer when no cross-relief had been previously sought, thus avoiding the necessity of a separate suit and consolidation etc. This does not mean that where the respondent has already prayed for relief in his answer and thus placed himself in the position of a petitioner a further petition can be presented by him before the first has been disposed of.
The same applies to the original petitioner. If, as in this case, she has presented a petition based on cruelty, she cannot present a fresh petition based on desertion until the first has been disposed of. To do so is to contravene Rule 3 sub-rule 2 of the Matrimonial Causes Rules, which provides: "A petition shall not be filed if there is before the court another petition by the same petitioner which has not been dismissed or otherwise disposed of by a final order". The cross-petition in the answer based on desertion and the equivalent contained in the reply were plainly filed in breach of this rule.
The rules have statutory effect, and although no doubt the court has a power after the event, under Order 70 Rule 1, to dispense with the requirements of rules where justice requires and needless inconvenience would otherwise result, it does not follow that, notwithstanding the consent of the parties, the court can authorise disregard of the rules in advance. It has not been and cannot be contended that in this case the first petition of the petitioner or its equivalent by the respondent were dismissed or wholly disposed of by final order before the new petitions were presented, and indeed the situation was so confused that the wife's allegation of desertion was apparently forgotten.
No application either to dispense with the rule or to dispose of the cruelty first was ever made. The more substantial objection is, however, that to allow this course to be taken would be to ignore the plain language of the statute by enabling a petitioner or respondent to pray for relief on some ground other than desertion and later at the hearing treat the statute as having provided that the relevant period of desertion expired at the trial and not at the presentation of the petition.
Rule 3 sub-rule 2 deals with substance and not with mere technicality. It is just that a petitioner should not be allowed to present a fresh petition until the first has been disposed of and reasonable that in a situation like the present the petitioner and respondent should, before launching against one another charges of cruelty, which are notoriously easy to make, at least reflect what the consequences may be if their charges turn out to be groundless.
In my opinion, leave to amend by alleging desertion was wrongly given, although again no criticism can be levelled against the learned judge, who, in giving leave, had followed the decisions of Mr. Justice Karminski in Thatcher v. Thatcher (1959 2 All England Reports, page 649) and Swiszczowski v. Swiszczowski (1959 1 All England Reports, page 495), both of which cases were, I think, wrongly decided.
Apart altogether from the provisions of Rule 3 sub-rule 2, which must certainly, where desertion as a ground for divorce is concerned, be strictly adhered to, it is right that where the requirements, even what may be regarded as the technical requirements, of the rules concerned are being dispensed with, this should be stated in the order made by the court. Affidavits in support, service, time for appearance and answer and registrar's certificate are all matters subject to rules of court. If these provisions or some of them are simply ignored it is not to be wondered at that a muddle will occur.
These appeals must be dismissed, on the ground that neither the petitioner's nor the respondent's allegations of desertion have been effectively before the court as grounds for dissolution of the marriage.
The appeal and cross-appeal in this case are both confined to the issue of desertion which was raised by the respondent husband's cross-petition and the petitioner wife's answer thereto contained in her amended reply. I also have come to the conclusion that both appeal...
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