Blyth v Blyth

JurisdictionEngland & Wales
Judgment Date28 May 1965
Judgment citation (vLex)[1965] EWCA Civ J0528-2
CourtCourt of Appeal
Date28 May 1965
Stanley Blyth
Doreen Alice Blyth
Dennis Pugh

[1965] EWCA Civ J0528-2


Lord Justice Willmer

Lord Justice Harm and

Lord Justice Winn

In The Supreme Court of Judicature

Court of Appeal

Appeal from Order of Mr. Commissioner Gallop, Q. C, dated 16th December, 1964.

Mr. Derek J. Hyakson instructed by Messrs Norton, Rose, Botterell & Roche, Agents for Messrs Chamberlain, Talbot & Bracey, Great Yarmouth) appeared on behalf of the Appellant (Petitioner).

Mr. Basil Garland appeared on behalf of the Queen's Proctor as amicus curiae.


LORD JUSTICE WILLKER: This is an appeal from a judgment of Mr. Commissioner Gallop, Q. C, given on the 16th December 1964, whereby be dismissed a husband's petition for divorce on the ground of adultery. The petition was undefended, and the wife's adultery was duly proved, but the learned Commissioner held himself bound to refuse relief because be found that the adultery had been condoned. The husband was himself admittedly guilty of adultery during the marriage, in respect of which he prayed for the exercise of the court's discretion in his favour.


When the appeal was first called on it became apparent that it raised a difficult question as to the effect of section 1 of the Matrimonial Causes Act 1963 in relation to a resumptionof marital intercourse which occurred before the passing of the Act. In view of the novelty of the question we thought it right to adjourn the hearing of the appeal so that we might have the assistance of argument by counsel on behalf of the Queen's Proctor, on the resumed hearing we have had the benefit of argument from counsel both for the husband and for the Queen's Proctor, and I should like to acknowledge my indebtedness to both of them for the assistance which they have given to us.


The Matrimonial Causes Act 1963 was passed on the 31at July of that year, and came into force at once. Section 1 of the Act provides; "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".


I think it right to refer also to the provisions of sections 2 and 3 of the Act, since these were relied on during the argument before us as throwing light on the construction to be given to section 1. These sections provide: "2. (1) For the purpose of the Matrimonial Causes Act 1950, and of the Matrimonial Proceedings (Magistrates' Courts) Act 1960, adultery or cruelty shall not be deemed to have been condoned by reason only of a continuation or resumption of cohabitation between the parties for one period not exceeding three months, or of anything done during such cohabitation, if it is proved that cohabitation was continued or resumed, as the case may be, with a view to effecting a reconciliation. (2) In calculating for the purposes of section 1, (1) (b) of the Matrimonial Causes Act 1950 the period for which the respondent has deserted the petitioner without cause, and in considering whether such desertion has been continuous, no account shall be taken of any one period (not exceeding three months) during which the parties resumed cohabitation with a view to reconciliation. 3. Adultery which has been condoned shall not be capable of being revived".


The questions which appear to arise for decision are: (1) In proceedings heard after the passing of the 1963 Act, is it competent for a husband to give evidence to prove, in relation to a resumption of marital intercourse before the passing of the Act, that he did not intend to forgive or reinstate his wife? (2) If so, was the evidence which the husband gave "sufficient to negative the necessary intent"? The first of these questions is a pure question of fact, depending on the true construction of section 1 of the Act; the second is a mixed question of fact and law.


The essential facts of the case as found by the learned commissioner are as follows. The parties were married on the 23rd March 1940, and there is one child of the marriage, a son, now of full age. In February 1954, and again in August of that year, the husband committed isolated acts of adultery with another woman. In May 1954 the wife left the husband and lived in adulter; with the co-respondent from then until August 1955, after which she broke off the association, but did not return to her husband. On the 23rd May 1955 the wife gave birth to a daughter, of whom it is alleged that the co-respondent is the father.


In or about 1958 (said to be about Christmas time) the husband happened to meat the wife in the street and went home with her to her mother's house where she was residing. Whilst there, in consequence, as the commissioner found, of some allurement by her, he bad sexual intercourse with her. It is not suggested that this was due to any fraud on the part of the wife. The husband gave evidence, which was admitted de bene esse, that there was no talk between them as to his forgiving or remitting the offences that she had committed, and that he did not in fact intend to forgive her or remit her offences. A little later, however, when he was asked, why he had delayed so long before presenting his petition, the husband said: "I always lived in hopes that there would be some way that we could get together". He added that he and his wife often spoke to each other, and on one occasion he talked it over with her mother, but the wife would not come round to his way of linking.


The petition is dated the 13th December 1963, but we were informed that it was not filed till the 15th January 1963. It contained no reference to the act of marital intercourse which the husband now admits took place in 1958. On the contrary, it contained the usual allegation that the petitioner bad not in any way condoned the respondent's adultery. The fact of the resumption of marital intercourse came to light only in the wife's written confession, dated the 5th April 1965, which was put in at the trial for the purpose of proving the wife's adultery. Had the case taken its normal course and come on for trial before the 3lst July 1963 it is clear that the petition would have been bound to fail. For by reason of the admitted act of marital intercourse in 1958, the husband would have been conclusively presumed to have condoned his wife's adultery ( Henderson v. Henderson 1944 Appeal Cases, 49). But it appears that the prosecution of the case was deliberately delayed until after the Act of 1963 had come into force. I do not suggest that any fault can be found with the husband or his advisers for taking this course.


The learned commissioner, having taken the evidence and heard the argument of counsel for the husband, reserved his judgment for the purpose of considering whether, since the passing of the Act of 1963, the husband's evidence was admissible to show that when he had intercourse with his wife in 1958 he did not intend to condone her adultery. By his reserved judgment the learned commissioner held that the effect of section 1 of the 1963 Act was to make an alteration in substantive law; that it could not be 3onstrued so as to jeopardise the vested rights which the wife had already acquired when, by engaging in sexual intercourse with her, the husband reinstated her as his wife, and that accordingly the evidence of the husband was not admissible to negative the presumption that he did intend to condone bar adultery. He therefore dismissed the petition, but in case a different view of the effect of the Act might be taken on appeal, be proceeded to state what his relevant findings would have been bad he held the husband's evidenceto be admissible. He said (1) that he "would find on a rather slender balance of probabilities that the husband did not intend to condone the adultery"; (2) that he would excuse the delay in the presentation of the petition; (3) that in his view there was sufficient evidence against the co-respondent to justify a finding against him; and (4) that he would have been prepared to exercise his discretion in favour of the husband.


It will be convenient to dispose of some of these subsidise points straight away. I would agree that this would be a proper case for the exercise of discretion in favour of the husband if he is otherwise entitled to relief. I do not think that there is any ground for suggesting unreasonable delay in the presentation of the petition. For until the 31st July 1963 it could not have been argued that the husband had any possible right to relief; as already pointed out, even this petition would have been bound to fall if it bad been brought to trial before that date. As to the co-respondent, I do not think, with all respect to the learned commissioner, that there was any admissible evidence against him, and indeed the contrary has not been argued before us.


That leaves for consideration the two questions which I have already stated, namely, (1) whether the husbands evidence was admissible to negative the presumption of condonation, and (2) whether, if so, it was sufficient. As to the first question, the commissioner, founding himself upon the oft-quoted passage in Maxwell on the Interpretation of Statutes (eleventh edition, pages 204/5, correctly stated the principles to be applied as follows: "Authority is so abundant as scarcely still to be needed for the proposition that statutes are construed as operating only in cases or on facts which come into existence after the statutes were passed, unless a retrospective effect be clearly intended. A retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards a matter of procedure unless that effect cannot be avoided without doing violence to the language of an enactment. If the enactmentis expressed in language which is fairly capable...

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