Blyth v Blyth

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Morris of Borth-y-Gest,Lord Morton of Henryton,Lord Denning,Lord Pearce,Lord Pearson
Judgment Date15 February 1966
Judgment citation (vLex)[1966] UKHL J0215-1
Date15 February 1966

[1966] UKHL J0215-1

House of Lords

Lord Morris of Borth-y-Gest

Lord Morton of Henryton

Lord Denning

Lord Pearce

Lord Pearson

Blyth (A.P.)
and
Blyth

Upon Report from the Appellate Committee, to whom was referred the Cause Blyth (A.P.) against Blyth, that the Committee had heard Counsel as well on Monday the 20th as on Tuesday the 21st, days of December last, upon the Petition and Appeal of Stanley Blyth (Assisted Person), of 262 South town Road, Great Yarmouth, in the County of Norfolk, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 28th of May 1965, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet (which said Appeal was, in pursuance of an Order of this House of the 16th day of December last, heard ex parte as to the Respondent Doreen Alice Blyth, she not having lodged a Case in answer to the said Appeal, though ordered so to do) (in which said Appeal The Queen's Proctor appeared as amicus curiae); and due consideration had this day of what was offered in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 28th day of May 1965, complained of in the said Appeal, be, and the same is hereby Reversed: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Probate, Divorce and Admiralty Division of the High Court of Justice, with a Direction to pronounce a decree nisi of Divorce, and to do therein as shall be just and consistent with this Judgment: And it is also further Ordered, That there be no Order as to Costs, save that the Costs of the Petitioner here and in the Courts below be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960.

Lord Morris of Borth-y-Gest

My Lords,

1

The Appellant as Petitioner sought the dissolution of his marriage on the ground of his wife's adultery. The Court could not grant him a decree unless satisfied on the evidence that he had not in any manner condoned the adultery. On the hearing of the Petition the question arose whether, having regard to the dates of the events in the matrimonial story, he could give certain evidence in support of his contention that there had been no condonation. If such evidenec was admissible it was for the Court to consider its weight and effect and thereafter to reach a conclusion in regard to the issues which by statute call for determination.

2

The petition was not defended. The learned Commissioner held that certain evidence of the husband (which was received de bene esse) was inadmissible. The petition was dismissed on the ground of condonation. On appeal it was held in the Court of Appeal that the husband's evidence was admissible but that it fell short of what was required to satisfy the Court that he had not condoned his wife's adultery. The appeal was therefore dismissed.

3

The facts which gave rise to the issues thus outlined must now be stated. The parties were married on the 23rd March, 1940. Their one child was born on the 7th March, 1942. The wife left the husband in May, 1954. In a discretion statement the husband asserted that before then she had associated with the co-respondent. Partly due to that association the husband stated that he had become very unhappy. He committed adultery in February, 1954, and again in August, 1954, with someone he had earlier known: his association with her ceased in August, 1954. Between the 8th February, 1955 and 1958 there were many proceedings instituted by the wife against the husband in the magistrates' court in relation to the care, custody and maintenance of the one child of the marriage. The wife had met the co-respondent in January, 1954. She went to live with him in May, 1954, and continued to do so until August, 1955. She gave birth to a daughter on the 28th May, 1955. In August, 1955, the wife went to her mother's home and continued to live there after that date.

4

In 1958 the husband and wife had intercourse. As the learned Commissioner found the husband then had knowledge of his wife's adultery. He gave evidence that they chanced to meet in the market place: they talked and she invited him to her mother's house. In the words of the learned Commissioner in his judgment:

"They went to the house of her mother, where, after some allurement by her, the husband engaged in the act of intercourse in question. No fraud by the wife is suggested."

5

It is beyond dispute that as the law stood before the end of July, 1963, a Court would have been obliged to hold, upon proof of the facts just recited, that there had been condonation. (See Henderson v. Henderson [1944] A.C. 49.)

6

Years went by before the husband petitioned for divorce. His petition was dated the 13th December, 1962. When eventually it came on for hearing (on the 9th November, 1964) the husband gave his reason for the delay. It was that he "always lived in hopes that there would be some way that we could get together". He amplified this by saying that after the occasion when they had intercourse they sometimes saw each other and often spoke to each other. He added:

"On one occasion I talked it over with her mother and I found that my wife was swayed more towards her mother than towards me. I found that no matter what I said or tried to do, she would not come round to my way of thinking".

7

Though, as the law stood, the husband had no prospect, after the act of intercourse, of securing a divorce based on his allegation of his wife's adultery (which in fact had ended over seven years before his petition) it does not appear that the passing of time before he presented his petition was attributable to any recognition that there had been condonation. Rather was it attributable to his hopes of restoring the marriage. When the petition was presented (which was many months before the Matrimonial Causes Act, 1963, was passed) he swore that he had not condoned his wife's adultery. So far as his legal advisers knew, that was true for it was apparently only when they were collecting the evidence to be given at the hearing that they learned some of the facts. It was proposed to prove the husband's case—i.e., that his wife had committed adultery—by obtaining an admission from her. A private inquiry agent saw her and she gave and signed a statement in writing. It was dated the 5th April, 1963. In it she stated that she had lived with the co-respondent and committed adultery with him between the 1st May, 1954, and August, 1955. In her statement she further said in reference to the time after she had parted from the co-respondent:

"I saw my husband on a number of occasions, and went out with him, and sexual intercourse took place, between us, and one occasion he slept at my mother's house with me, and intercourse look place between us. This was about four years ago. Since that time I have not seen my husband".

8

When the husband's legal advisers became aware of the contents of the wife's statement they deferred the setting down of the petition and waited until after the passing of the Matrimonial Causes Act, 1963. That Act was passed on the 31st July, 1963, and then came into force. Section 1 provides that:

"Any presumption of condonation which arises from the continuance or resumption of marital intercourse may be rebutted on the part of a husband, as well as on the part of a wife, by evidence sufficient to negative the necessary intent."

9

In contrast to this section, section 2 (which does not call for present consideration) refers to "co-habitation".

10

The petition eventually came on for hearing on the 9th November, 1964. The husband wished to take advantage of the above-cited provision in section 1 of the Act and the question arose whether he could do so. The events which he sought to explain were all prior to the passing of the Act. The learned Commissioner took the convenient course of hearing de bene esse the evidence which counsel for the husband desired to tender. Later, after hearing argument, the Commissioner ruled as to its admissibility. Accordingly, the husband gave his account of his relationship with his wife since May, 1954. It differed from that set out in the statement made by his wife which he was putting in and using as evidence to prove his allegation of her adultery. He said that there had been only one act of intercourse. The following questions and answers were then recorded:—

Q. At the time of this intercourse was there any talk between the two of you as to your forgiving or remitting the offences that she had committed?

A. None whatsoever.

Q. Did you when you had intercourse with her that evening intend to forgive her?

A. No, sir.

Q. Or to remit the offences she had committed?

A. No, sir, we did not even trouble about it.

11

The learned Commissioner came to the conclusion that to admit the evidence which the husband sought to give to rebut a presumption of condonation would be to give section 1 of the Act of 1963 a retrospective effect which he considered was not permissible. Accordingly, he ruled that the evidence was inadmissible. On that view it followed that the petition had to be dismissed on the ground of condonation. Contemplating a possible appeal he added certain observations as to what he would have found had he been able to rule that the evidence was admissible. One such finding would have been as follows:

"I would find on a rather slender balance of probabilities that the husband did not intend to condone the adultery".

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