Cohen v Cohen
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Viscount Maugham,Lord Wright,Lord Romer |
| Judgment Date | 15 April 1940 |
| Judgment citation (vLex) | [1940] UKHL J0415-1 |
| Date | 15 April 1940 |
| Court | House of Lords |
[1940] UKHL J0415-1
House of Lords
Lord Chancellor
Viscount Maugham
Lord Russell of Killowen
Lord Wright
Lord Romer
After hearing Counsel for the Appellant on Thursday, the 29th day of February last, upon the Petition and Appeal of Dorothy Gertrude Cohen, Pauper, of 23 Roland Gardens, South Kensington, in the County of London, the lawful wife of Max Jacques Cohen, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 2d of May 1939, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet (which said Appeal was, in pursuance of an Order of this House, of the 27th day of February last, heard ex parte as to the said Max Jacques Cohen); And Counsel having been heard on behalf of His Majesty's Attorney-General; and due consideration being had this day of what was offered for the said Appellant:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 2d day of May 1939, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Cause be, and the same is hereby, remitted back to the Probate, Divorce and Admiralty Division (Divorce), of the High Court of Justice, to grant a decree nisi for the dissolution of the marriage between the Appellant and the said Max Jacques Cohen, and to do therein as shall be just and consistent with this Judgment.
The Lord Chancellor (read by Lord Maugham)
My Lords,
I have had the advantage of reading the Opinion prepared by my noble and learned friend Lord Romer, which entirely expresses my views in the matter, and I have nothing to add.
My Lords,
On my own behalf I wish to say that I, too, have had the advantage of reading the Opinion which I have just mentioned and as I entirely agree with it I, too, having nothing to add.
My Lords, I am requested to say that Lord Russell of Killowen also had had the advantage of reading the Opinion prepared by my noble and learned friend Lord Romer, and that he entirely agrees with it.
My Lords,
I also have had the same advantage, and, like the noble and learned Lords whose Opinions have already been expressed, I am fully in accord with the speech which is about to be delivered by my noble and learned friend Lord Romer. I have nothing to add.
My Lords,
The Appeal in this case raises a question of Divorce Law that is of considerable importance—of all the greater importance, perhaps, now that desertion is of itself a ground for divorce. The question is this: where one of the spouses has committed the matrimonial offence of desertion, does that desertion necessarily come to an end by the presentation and service upon the deserting spouse of a petition by the other one asking for a dissolution of the marriage.
The facts giving rise to that question in the present case are the following. The Appellant Dorothy Gertrude Cohen was married to the Respondent Max Jacques Cohen on the 21st March, 1921, and a son, the only child of the marriage, was born in the month of April, 1923. About two years after the birth of the child the Respondent deserted the Appellant without cause, and since then has never himself taken any step, or indicated any intention or desire, to bring that desertion to an end. On the 11th March, 1929, upon the application of the Appellant an order was made under the Summary Jurisdiction (Separation and Maintenance) Acts, 1895 to 1925, on the ground that the Respondent had wilfully neglected to provide reasonable maintenance for the Appellant and her child, that the Respondent should pay a total sum of £1 a week for such maintenance, the custody of the child being given to the Appellant. The order, however, contained no provision under Section 5 ( a) of the Act as to cohabitation. The sum of £1 a week was upon the Respondent's application reduced to 12s. 6d. a week by order dated the 4th January, 1933. The Respondent frequently made default in payment of these weekly sums, and soon after the date of the last-mentioned order, he seems to have disappeared for a time, and ceased to make any payments towards the support of the Appellant and her child. In the meantime, viz.: on the 31st March, 1930, the Appellant presented a petition in the High Court for the dissolution of the marriage on the ground of the Respondent's adultery. The petition was duly served upon the Respondent, who put in an answer denying the adultery; but owing, as she says, to her want of means and the difficulty of serving the woman named in the petition, it was not further proceeded with, and, on the 4th May, 1937, it was dismissed upon the application of the Appellant in the following circumstances. On the 15th October, 1936, the Appellant received from the Respondent a letter dated the 2nd October, 1936, which so far as material was in these terms:
"Dear Dorothy,
As it is now so many years that we have lived together and now things have happened which for both our sakes has made same impossible, I hope you will agree that we both need our freedom to enable us to do the right thing for the future.
So am enclosing the evidence you have been wanting for same.
Yours,
Max C.
Enclosed in the letter was a receipted hotel bill which indicated that the Respondent and a woman referred to in the bill as "Mrs. Cohen" had passed the night together at the hotel on the 25th July, 1936.
In consequence of the receipt of this letter and enclosure the Appellant obtained an order on the 4th May, 1937, dismissing the petition then on the file, and on the 25th May, 1937, presented a fresh petition for dissolution of her marriage on the ground of the Respondent's adultery as evidenced by the hotel bill. The Respondent was duly served with this petition, but in the light of subsequent information tending to show that no adultery had in fact been committed by him at the hotel the Appellant did not for the time being proceed further with it. On the 1st January, 1938, there came into force the Matrimonial Causes Act, 1937, which by Section 2 ( b) made desertion without cause for a period of at least three years immediately preceding the presentation of the petition a ground for divorce. The Appellant accordingly on the 2nd February, 1938, applied to the Court for leave to file a supplemental petition on the ground of the Respondent's desertion. This application was refused as being inconsistent with a practice note which directed that, in order to obtain relief under the new Act in such circumstances, a fresh petition must be filed. The petition dated the 25th May, 1937, was accordingly dismissed by an order dated the 1st March, 1938, made upon the Appellant's application, and on the 2nd March, 1938, she presented a fresh petition for the dissolution of her marriage based solely on the ground of the Respondent's desertion without cause for a period of at least three years immediately preceding its presentation.
This petition was duly served upon the Respondent; but no appearance was entered on his behalf, and in due course it came on for hearing before Hodson, J. as an undefended cause. The learned Judge was satisfied upon the evidence that the Respondent had deserted the Appellant without cause in the year 1925 and, but for the fact of the presentation and service of the two earlier petitions, would have been prepared to hold that such desertion had continued without interruption up to the 2nd March, 1938. There was. however, the fact that between the 21st March, 1930, and the 4th May, 1937, and between the 25th May, 1937, and the 1st March, 1938, there were petitions on the file, both of which had been served upon the Respondent, in which the Appellant was asking for the dissolution of the marriage. In these circumstances he felt, though with regret, that he was unable to hold that desertion without cause had subsisted for the three years immediately preceding the 2nd March, 1938, the date of the presentation of the petition then before him. He was, he said, precluded, as indeed he was, from doing so by the decision of the Court of Appeal in Stevenson v. Stevenson 1911, P., p. 191. The petition was therefore dismissed by order dated the 18th January, 1939.
The Appellant then took the matter to the Court of Appeal where it was heard on the 2nd May, 1939, before Mackinnon and Luxmoore L.J J. and Macnaghten J. The Court held that it was impossible to distinguish the case from Stevenson v. Stevenson, and the Appeal was dismissed, leave being given to appeal to your Lordships' House.
My Lords, from this narrative of the facts it is abundantly clear that the Respondent in the year 1925 committed the matrimonial offence of desertion, and that from that date down to the filing of the present petition he has shown no indication by word or deed of any intention or desire on his part to bring that desertion to an end.
Now in the case of Bowron v. Bowron 1925 P. at p. 195, where the intention of a husband to desert his wife had been established, it was said by Scrutton L.J. that the intention is presumed to continue unless the husband proves genuine repentance and sincere and reasonable attempts to get his wife back. There were certainly no such attempts in the present case. But as was said by Lord Macmillan in Pratt v. Pratt 1939 A.C. p. 417 at p. 420, a case in which a wife had deserted her husband, "In fulfilling its duty of determining whether on the evidence a case of desertion without cause has been proved, the Court ought not in my opinion to leave out of account the...
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