Chapman v Chapman
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STEPHENSON |
| Judgment Date | 20 October 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J1020-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 October 1972 |
[1972] EWCA Civ J1020-2
In The Supreme Court of Judicature
Court of Appeal
The Master of The Rolls (Lord Denning),
Lord Justice Phillimore and
Lord Justice Stephenson.
Mr. PAUL FOCKE (instructed by Mr. Norman C. Israel, agent for Messrs. Penman of Coventry) appeared on behalf of Charles Richard Beswick Chapman, Appellant.
Mr. J.B. PHILIPS (instructed by Messrs. Brian Slater & Tyers) appeared on behalf of Loretta Kay Chapman, Respondent to the appeal.
Husband and wife were married on 23rd October, 1965. Nine months later, on 5th July, 1966, they separated. They have lived apart ever since. Over five years later, on 6th October, 1971, the wife presented a petition for divorce on the ground that the marriage had irretrievably broken down. In that petition she asked that her husband should pay the costs. The husband acknowledged service. He said on the form that he did not intend to defend the case, but that he wished to be heard on the claim for costs.
On 29th February, 1972, the case was heard in the Edmonton County Court. The Judge made a decree nisi and ordered the husband to pay the wife's costs. The husband appeals from that order as to costs.
The first point to notice is that the wife in her petition inserted a paragraph which seems to suggest that the husband was responsible for the separation. It ran:-
"After the parties attended a dance on 2nd July, 1966, there was a quarrel in which the respondent stated to the petitioner that she could leave him. On Tuesday, 5th July, 1966, the petitioner left the matrimonial home at 9 Belvedere Road, Coventry, aforesaid and went to live with her parents at her present address. There has been no resumption of co-habitation since that date."
That paragraph was inserted, no doubt, in consequence of a precedent given in Rayden on Divorce at page 3051. Whilst I see no harm in saying, as matter of history, how the parties came to live apart, I think it altogether wrong for a petitioner (who seeks a divorce on the ground of five years living apart), to charge the respondent with a matrimonial offence. If the petitioner seeks to make such a charge, she should proceed on one of the other grounds, such as adultery, intolerable behaviour or desertion. She should only proceed on the five-year ground alone when that is the only fact on which she is entitled to rely. That appears clearly enough from section 6(1)(b) of the 1969 Act. It is borne out bythe form of decree, which says that:-
"The Judge held that the petitioner and the respondent have lived apart for a continuous period of at least five a years immediately preceding the presentation of the petition, that this is the only fact mentioned in Section 2(1) of the Divorce Reform Act, 1969, on which the petitioner is entitled to rely in support of her petition, that the marriage had broken down Irretrievably".… etc.
The result is, in my opinion, that in these five-year cases, the Court should not enquire into whose fault it was that the marriage has broken down. If the petitioner starts making allegations of fault, in order to recover costs, then the respondent will be entitled to cross-examine her and to call evidence himself in answer - and we shall be back to the bad old days of mutual recrimination in open Court. Nay more. If the petitioner starts making allegations against the respondent, he will naturally in answer seek to make allegations against her. To do this, he will have to file an answer, see Rule 49(2) Matrimonial Causes Rules 1971. In that event the case would no longer be an undefended cause. It would have to be tried in the High Court - at much expense — to decide merely the question who should pay the costs.
So I am firmly of opinion that the petition, in a five-year case, should not contain any allegation of fault against the respondent. In most five-year cases the fault is on the part of the...
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Grenfell v Grenfell
...might be prejudiced in relation to costs on ancillary relief, and he relied on some observations made by the Master of the Rolls in Chapman v. Chapman in 1972 3 All England at page 1089, and on Wright v. Wright in 1973 3 All England Reports. I do not think it is necessary to say very much a......
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Cheong Kim Seah v Lim Poh Choo
...respondent's answer except for the first sentence of para 1 of the respondent's answer should be struck out: at [52]. Chapman v Chapman [1972] 1 WLR 1544; [1972] 3 All ER 1089 (distd) Grenfell v Grenfell [1977] 3 WLR 738; [1978] 1 All ER 561 (folld) J (orse B) (by her next friend) v J [1953......
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M v L
...fault it was that the marriage had broken down. Matters of fault between the parties should not be considered. See Chapman v Chapman [1972] 1 WLR 1544. 19. With these principles in mind, I now turn to consider the facts of this case. The First Issue 20. Having considered all the oral and do......
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M v L
...fault it was that the marriage had broken down. Matters of fault between the parties should not be considered. See Chapman v Chapman [1972] 1 WLR 1544. 19. With these principles in mind, I now turn to consider the facts of this case. The First Issue 20. Having considered all the oral and do......