Blunt v Blunt
| Jurisdiction | England & Wales |
| Date | 1943 |
| Court | House of Lords |
Divorce - Discretion - Exercise - Review by appellate tribunal -
By s. 4 of the Matrimonial Causes Act, 1937, “the court shall not be bound to pronounce a decree of divorce and may dismiss the petition if it finds that the petitioner has during the marriage been guilty of adultery.”
It is impossible to lay down strict rules for the exercise of the discretion created by the section, but the court should have regard to — (a) the position and interest of the children of the marriage; (b) the interest of the party with whom the petitioner has committed adultery, with special regard to their future marriage; (c) the question whether, if the marriage be not dissolved, there is a prospect of reconciliation between the spouses; (d) the interest of the petitioner, particularly as regards allowing him to remarry and live respectably; (e) the interest of the community at large, judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down.
An appeal against the exercise of the court's discretion may succeed on the ground that the discretion was exercised on wrong or inadequate materials if it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account, but the appeal is not from the discretion of the court to the discretion of the appellate tribunal.
When both parties are seeking the exercise of the court's discretion and injustice would be done if it were exercised in favour of one party only, the court may, in cases where it is proper to bring the marriage to an end, pronounce a decree in favour of each.
APPEAL from the Court of Appeal.
The appellant, Richard Blunt, and the respondent, Elizabeth Blunt, were married on October 20, 1936. There was one child of the marriage, a son, born on November 16, 1938. The parties lived together till the beginning of 1940 when they separated after the appellant had accused the respondent of adultery. On October 8, 1940, the appellant presented a petition for divorce on the ground of the respondent's adultery, but on September 17, 1941, it was dismissed by consent. On February 2, 1942, the appellant presented a second petition for divorce on the ground of the respondent's adultery with Reginald Farrow, the co-respondent. On February 3 the respondent presented a cross-petition for divorce on the ground of the appellant's cruelty. On May 27 it was ordered that the suits should be consolidated. On June 5 the respondent filed a “discretion statement” admitting adultery with the corespondent, and on June 8 the appellant filed a “discretion statement” admitting adultery with one Margaret Dean. On June 9 the hearing began before Hodson J. On June 10 the respondent filed a supplemental petition for divorce on the ground of the appellant's adultery with Margaret Dean. In the evidence for the appellant allegations were made against the respondent's moral character. The respondent's evidence alleged (inter alia) coarseness and indecency on the part of the appellant and of jockeys and stableboys employed by him with whom he compelled her to consort despite their drunkenness and ill-behaviour. It was also alleged that he kept her short of money and neglected to pay his bills, including fees due to a surgeon and nurses attending their child, so that she was constantly harassed by creditors. It appeared that after the parties had separated they had continued to correspond and to meet from time to time and had had matrimonial relations. On November 26, 1940, after the presentation of the first petition, the respondent wrote a letter to the appellant in the course of which she said: “Please don't be rash in taking this course which you may perhaps regret all your life,” but in evidence she denied that she intended thereby to ask that they should “go back to the old life together.” It also appeared that in the course of certain proceedings in the King's Bench Division the appellant had falsely denied that he had condoned the adultery alleged in the first petition by staying with the respondent at the Cumberland Hotel, London, and elsewhere. Hodson J. gave judgment on June 11. On the issues of fact he found that, although the appellant's behaviour was offensive and unkind, the respondent's allegations of cruelty and of conduct conducing to her adultery were not established. He dismissed her petition and, exercising his discretion in favour of the appellant, granted him a decree nisi. The Court of Appeal (MacKinnon, Goddard and du Parcq L.JJ.) allowed an appeal by the respondent and rescinded the decree in favour of the appellant, but they upheld the refusal of a decree to her. The appellant appealed to the House of Lords and the respondent cross-appealed.
Sir Patrick Hastings K.C. and Victor Williams for the appellant. On the facts the judge was right in his exercise of his discretion. Further, an appellate tribunal cannot and should not interfere with that exercise so long as the judge has not misdirected himself by taking into consideration irrelevant or unproved matters or omitting to consider relevant matters: Apted v. Apted and BlissF1; Andrews v. AndrewsF2; Holland v. HollandF3. The exercise of the discretion depends necessarily on the judge's hearing and seeing the people who come before him. In matrimonial matters it is almost impossible to judge the truth between husband and wife without actually seeing them and having an opportunity of appreciating their behaviour. It cannot be that the discretion is given to each court successively whether it has seen the witnesses or not. If that were so, every case might come to the House of Lords on a similar point: see Charles Osenton & Co. v. JohnstonF4. Evans v. BartlamF5 has no application here. The Court of Appeal has steadily refused to lay down rules to fetter the exercise of the discretion by the court below. In divorce cases the court would formerly exercise its discretion only (1.) in the case of “innocent” adultery, e.g., where the petitioner, believing the respondent was dead, had married again; (2.) where a wife was compelled by her husband to commit adultery; (3.) in the case of condoned adultery: Morgan v. MorganF6. The exercise of the discretion was strictly circumscribed until about 1917, when it became progressively less stringent in its tests: see Rayden on Divorce 4th ed., p. 149. The present practice is the direct antithesis of former practice. Now it is the exception to refuse to exercise the discretion and a decree is granted unless there is good reason for its refusal. The court should consider which spouse was really responsible for breaking up the marriage. In Wilson v. WilsonF7 four considerations were laid down as proper for the court's attention in deciding whether the discretion should be exercised: (a) the interest of the children of the marriage; (b) the interest of the party with whom the petitioner has committed adultery, with special regard to the prospect of their future marriage; (c) the question whether, if the marriage is not dissolved, there is a prospect of the reconciliation of the spouses; (d) the interest of the petitioner, in particular, the interest that the petitioner should be able to remarry and live respectably. These considerations were approved in Wilkinson v. WilkinsonF8. In the light of this the importance of the concealment of a petitioner's own adultery lies in the fact that the court is not put in full possession of the facts. The interests of all the other persons concerned, which must be considered, shall not be prejudiced by any delay in disclosure. Once it is established that full disclosure has been made and that it is not contrary to public interest to dissolve the marriage, the conduct or lack of candour of the petitioner can have nothing to do with the matter. No court could lay it down as a general rule that public policy is offended unless disclosure be made at a particular time. In the present case the Court of Appeal was not entitled to interfere with the exercise of the judge's discretion: see Todd v. ToddF9; Gayer v. GayerF10; Wickins v. WickinsF11. In cases of doubt the judge should pronounce a decree. In the present suit the appellant was not guilty of any perjury or attempted deception, but the whole basis of the order of the Court of Appeal was disapproval of the appellant.
Beyfus K.C. and Holroyd Pearce for the respondent. The Court of Appeal was right in rescinding the decree pronounced in favour of the appellant since the court should not exercise its discretion in favour of any petitioner who has been guilty of consistent disgraceful behaviour as a husband and has attempted to deceive the court. As regards the cross-petition, the Court of Appeal should have exercised its discretion and pronounced a decree in the respondent's favour. The case should not have been treated in two separate compartments but should have been considered as a whole. The Court of Appeal, having taken a far graver view than the...
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