Brewer v Brewer
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE |
| Judgment Date | 24 October 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J1024-4 |
| Date | 24 October 1961 |
| Court | Court of Appeal |
[1961] EWCA Civ J1024-4
In The Supreme Court of Judicature
Court of Appeal
Revised
Lord Justice Holroyd Pearce
Lord Justice Willmer and
Lord Justice Davies
Mr RAWDEN J.A. TEMPLE, Q.C., and Mr J.O. St. (instructed by Messrs Cunliffe & Mossmen, Agents for Messrs Martin, Son & Allen, Gravesend) appeared on behalf of the Appellant (Respondent).
Mr E. DAVIS SUTULIFFE, Q.C., and Mr (instructed by Messrs Devonshire & Co., Agents for Mersrs Bretherton & Sons, Gloucester) appeared on behalf of the Respondent (Petitioner).
I will ask Lord Justice Willmer to deliver the first Judgment.
This is an appeal from the Judgment of Commissioner Latey, given on the 14tn February of this year, whereby he granted a decree of divorce to a husband on the ground of desertion on the part of the wife. The petition, which is dated, the 25th August 1958, alleges desertion from the 7th July 1955. The learned Commissioner exercised his discretion in favour of the husband, who had been guilty of adultery which he disclosed in his discretion statement. He had in fact beer living with another woman since about March of 1956. The wife's Answer in its original form denied desertion, and alleged that the husband was guilty of desertion, but it contained no cross-prayer for relief. However, by an amendment made on the 2nd April 1960, a prayer for divorce by the wife was added on the ground, first, of the desertion that she alleged, and secondly, on the ground of the husband's admitted adultery. It should be said that the wife was aware of the fact of the husband's adultery, though it appears that she did A pot know the full circumstances of it.
When it came to the trial, the wife, while adhering to her allegations, once again renounced any claim for relief. The trial, therefore, was concerned only with the question whether the husband was entitled to relief. As is not uncommon in these cases, there was considerable dispute as to the facts. As to that the learned Commissioner stated quite clearly that he preferred the evidence of the husband to taat of the wife. He found that the wife was guilty of desertion commencing on the 7th July 1955, and that thereafter she had done nothing to bring her desertion to an end. Further, he held that nothing which the husband afterwards did or said deprived him of the right to allege continuing desertion by the wife. In particular he held that the husband's adultery, though known to the wife, did not break the currency of desertion, since the wife herself had said in evidence that she would have taken him back in spite of it, albeit on her own terms.
The real rock on which the marriage split was the fact that the wife insisted on continuing to live near the home of her parents, whereas the husband, who was a serving member of the Royal Air Force, wanted her to come and live with him at or near his station.
The point of difficulty in the case, and the main ground on which this appeal is based, arises from a letter written by the husband on the 28th February 1956,in which he said in effect that he had by then made up his mind that he was never again going to live with the wife. Mr Temple has argued, first, as a matter of law, that on the basis of the learned Commissioner's findings, and having regard to certain admissions which the husband made in his evidence with regard to his state of mind, the effect of that letter of the 28th February 1956 was to terminate the wife's desertion (if she was then in desertion) because it put it out of her power even to return to the husband. Secondly, Mr Temple has argued, in regard to the facts of the case, that there was no finding by the learned Commissioner to the effect that the wife was not in fact influenced by the receipt of that letter; and in the absence of such a finding it has been argued that the husband has not proved that the separation thereafter was without his consent, or without cause. Thirdly, Mr Temple has argued that in any case the learned Commissioner's finding that desertion began on the 7th July 1955 was against the weight of evidence.
I must state the history of the matter as briefly as possible. The parties were married on the 21st July 1945 at a time when they were both aged about twenty-four years. At that time both of them were on service, the husband being in the Royal Air Force, and the wife being a member of the Women's Royal Air Force. The husband, it should be said, has remained tnroughout a member of the Royal Air Force. There is one child of the marriage, a daughter named Julia, who was born in Marcn 1947. I should further state that in August of 1954 the wife gave birth to a still-born child.
At the beginning the parties were only able to cohabit during their respective leaves, and they made their home with the wife's parents at No.85 Nelson Road, Gravesend. In September 1945 the wife was demobilised, and she then took up work as a window dresser in Maidstone, though she continued to live with her parents at Gravesend. About that time the husband was posted to a station in Gloucestershire. Shortly afterwards, some time in 1946, he was sent to Dublin, and he in fact remained in Ireland until the year 1949. This meant that the parties were still in a position to cohabit only when the husband had leave and was able to come across to England. It was during that time that Julia was conceived.
It was the husband's case that throughout he was always trying to persuade the wife to come end join him aid live at or near his station. The wife's ease, on the other hand, was that the husband never really made any concrete offer of accommodation for her to go to. Be that as it may, it is clear that gradually the parties drifted apart, and by 1948 the husband stopped coming home to the wife for his leaves. In August 1948 he wrote a letter to the wife in which he suggested that the parties should go their separate nays. In the course of that letter he said that there was another woman in whom he was interested. In evidence, however, he told the learned Commissioner that this was not in fact so, and that he only said so in the letter for the purpose of provoking the wife's jealousy.
So matters drifted on. Though the husband returned to England at the end of his service in Ireland early in 1949, the parties did not meet except on two occasions. One of those occasions was in January 1949, immediately after the husband's return, when an abortive meeting arranged through a welfare officer took place. The other occasion was in September 1951 when a meeting was arranged at the request of the husband. At that meeting it appears that he invited the wife to divorce him, and went so far as to offer her £100 to assist her in doing so. In fact, however, nothing came of that, end the wife did nothing about it. Matters went in like that until October 1955 when the husband once again approached the wife and a reconciliation took place.
It has not, of course, been suggested that either party could be entitled to relief in respect of anything that happened in the period before 1953. The relevance of what took place during that early period is that the husband says that the wife's conduct during that period did amount in fact to desertion by reason of her persistent refusal to join him in Ireland. He says that her behavior at that time was all of a piece with what subsequently happened in 1955, and therefore helps to support the inference that, when she then refused to join him, she did so animo deserendi. The learned Commissioner, however, refused to draw the inference that the wife was in desertion during that earlier period. He was in some difficulty because, although the parties had obviously been corresponding a good deal, very few of the letters written were produced. There had not in fact been any order for discovery, and it appeared that letters were in existence which could have been produced, but which were not. Such letters, if produced, might or night not have supported the husband's story; but in their absence, as I have said, the learned Commissioner refused to draw the inference that the wife was in desertion. The conclusion he came to was that at that period the wife had not reached any definite decision to live apart from her husband, but that she was just allowing natters to drift.
As I have said, a reconciliation took place in October 1953. The husband was then stationed in London. He approached the wife and invited her to have him back, which she did. he then discovered for the first time that earlier in that same year 1953 the wife had in fact acquired a house of her own at No.18 Peckham Street, Northfleet, Northfleet being not very far from Gravesend. It was there that the parties resumed cohabitation, and they lived together there subject to the husband's absences in the course of his duties. It is clear that at first after their reconciliation the parties lived happily. The bundle of correspondence contains a certain number of letters written by the husband during that period Inmost affectionate terms. The wife became pregnant, and the pregnancy resulted, as I have stated, in the birth of the stillborn child in August 1954. The husband, however, said that even curing this period when they were living in their own home, the wife continued to be very much under the influence of her parents and her family, who were still living in Gravesend.
As a result of the birth of the still-born child, the wife most unhappily had a breakdown in her mental health. She was in hospital for some weeks afterwards, and it appears that she remained under treatment for her mental condition of some sort or another until about August of the following year. The evidence, however, showed that the wife did slowly make a recovery, and by about...
To continue reading
Request your trial
- R v Roberts
-
Construction Services Ltd v Daitokogyo Company
...may possibly conflict, with the interest of those whom he is bound to protect.” 23 L.S. Sealy, in an article in the Cambridge law Journal (1962) p.69, listed four categories of fiduciary relationships. These relationships may, according to him, overlap. I dealing with the second of these ca......
-
Aggressive Legalism: The Rules of the WTO and Japan’s Emerging Trade Strategy
...(1993 [1991], pp. 21–22, 212, 256).6See GATT GATT Activities in 1961/62 (hereafter GA [year]), pp. 31–32; and also GATT BISD10th Suppl. (1962, pp. 69, 71).7Interview, Yoshino Bunroku, Ex-Vice Minister for Economic Affairs, Ministry of Foreign Affairs,Tokyo, 1998.THE WTO AND JAPAN’S EMERGING......
-
One hundred years of ambiguity: U.S.-Cuba relations in the 20th century.
...A. Knopf, 1962), pp. 401-16. (11.) Whitaker, Nationalism in Latin America: Past and Present (Gainesville: University Press of Florida, 1962), pp. 69-70. Irving Louis Horowitz is University Professor Emeritus and Hannah Arendt Professor of Sociology and Political Science at Rutgers, The Stat......
-
Information misbehaviour: modelling the motivations for the creation, acceptance and dissemination of misinformation
...191)Misinformation493 In theoretical terms, the motivations for the production of some form of misinformation,are what Schutz (1962, p. 69) calls in-order-to motives; that is, the desire to achieve some end.As Schutz, notes, “From the point of view of the actor this class of motives refers ......
-
Some Recent Developments in Studies of Social and Cultural Change
...of Cultural Persistence (New York: Villages in Israel," Economic Development Columbia University Press, 1961). and Cultural Change, 11 (1962), pp. 69-84. 38 A. Niehoff and J. Niehoff, "East Indians 42 W. H. Newell, Treacherous River: A in the West Indies" (Milwaukee Public Study of Rural Ch......