Crowther v Crowther
| Jurisdiction | England & Wales |
| Judge | Lord Porter,Lord Normand,Lord Oaksey,Lord MacDermott,Lord Reid |
| Judgment Date | 09 May 1951 |
| Judgment citation (vLex) | [1951] UKHL J0509-1 |
| Date | 09 May 1951 |
| Court | House of Lords |
[1951] UKHL J0509-1
House of Lords
Lord Porter
Lord Normand
Lord Oaksey
Lord MacDermott
Lord Reid
Upon Report from the Appellate Committee, to whom was referred the Cause Crowther against Crowther, that the Committee had heard Counsel as well on Tuesday the 27th, as on Wednesday the 28th, day of February last, upon the Petition and Appeal of Theodora Joan Owen Crowther, of Bridge Cottage, Marlow, in the County of Bucks, 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 14th of June 1950, might be reviewed before His Majesty the King, in His 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 His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of John Keith Crowther, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
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 14th day of June 1950, 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 hear such evidence as may be offered, and to reach a conclusion in conformity with the principles declared by this House: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant, the Costs incurred by her in the Court of Appeal, such Costs to be those recoverable by a Poor Person: And it is also further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant, the costs incurred by her in respect of the said Appeal to this House, such Costs to be taxed in the manner usual when the Appellant sues in formâ pauperis, and the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
This is an Appeal from a judgment of the Court of Appeal affirming a decision of Ormerod, J. in a matrimonial matter.
On the 20th July, 1949, the Petitioner, Mrs. Crowther, filed a petition for divorce against her husband on the ground of desertion. The desertion was said to have begun on the 26th June, 1946. The date was denied but as it was admitted that the husband deserted his wife on the 8th July, the exact date is immaterial, provided that she is able to establish, in accordance with the provisions of Section 176 of the Judicature (Consolidation) Act, 1925 as amended by Section 2 of the Matrimonial Causes Act, 1937, that the desertion was "without cause" and continued for "at least three years immediately preceding the presentation of the petition". In answer it was alleged that the desertion was terminated on the 28th July, 1948, when the Respondent was admitted to Banstead Hospital under a reception order of that date made under the Lunacy and Mental Treatment Acts, 1890 to 1930, and was there detained until the 11th October, 1948, as a person of unsound mind.
The existence of the reception order is admitted and the only question, therefore, which your Lordships have to determine is whether it presents an absolute bar to the prayer of the petition.
It is said on the one hand that desertion is a continuous process involving on the part of the deserting spouse an animus deserendi as well as absence in fact: that in the present case there was a withdrawal of consortium but no animus deserendi for three years inasmuch as during the period of his detention the husband was a certified lunatic and, it was said, as such, incapable of forming or retaining an animus.
To this plea various answers were made:—
(1) that the only material time to consider on the question of intention is that at which desertion in fact took place.
(2) that in any case the husband, having formed the intention and withdrawn himself, could only put an end to his desertion by some action showing an intention to return and by returning if there was nothing to prevent his doing so. It may be that the husband was physically prevented from returning for some three months, but before and after that time he could have come back and could have endeavoured to take up his matrimonial position again, whereas he had never attempted to do so.
(3) Furthermore, it was maintained that the certification was not conclusive: medical evidence might establish that though unable to form any intention in some matters, he might be capable of a lucid determination on others and that whether during his incarceration he could continue to maintain an intention to desert could not be determined without such evidence.
The learned judge took the view that the existence of the certificate was an absolute bar to the grant of the prayer in the petition. The certificate, in his opinion, established that the husband was, during the time that he was detained, incapable of forming or retaining any intention of deserting: desertion was a continuing state requiring proof that the husband left with the intention of remaining absent and continued to retain that intention. It could not exist in the absence of a capacity to form a determination. Nor, as he thought, could any evidence alter the inference which must be drawn and, therefore, the Respondent was not in desertion for the necessary three years whether immediately preceding the petition or indeed for three full years.
In my view he was obliged to reach this conclusion having regard to the decision of the Court of Appeal in Williams v. Williams [1939] P. 365. No doubt a distinction in fact can be drawn between the two cases, since in Williams v. Williams ( supra) the husband was still under restraint when the petition was presented and heard, so that if certification involves an inability to form a resolve, the husband was unable either to resolve to stay away or determine the desertion at the time of the hearing, whereas, in the present case the Respondent had recovered, been released for some seven months, and, as it seems, neither returned to his wife nor evinced any inclination to do so.
But any such distinction is inadmissible having regard to the opinion expressed by the Master of the Rolls, with whom Finlay, L.J. agreed. He says that "there is" in a certified lunatic, "generally speaking, no capacity to have the animus" (of returning) "or to give to it the quality of volition required to produce a legal result. … I thought at one time that the Court might be at liberty, upon the facts of the particular case, to draw an inference as to what the conduct of the lunatic would have been, if he or she had remained of sound mind. If it were permissible to draw such an inference, the question whether in any particular case it ought to be drawn would not present any insuperable difficulty. But I do not think that this is a permissible solution. What must be proved is desertion for the necessary period. If I am right in what I have said as to the necessity of the animus deserendi and the impossibility of its existence in the case of a person who by reason of lunacy is incapable of having it, that proof can never be given."
It is true that MacKinnon, L.J. was inclined to think that long continued desertion, even if followed by lunacy before the presentation of the petition, might enable a Court to draw the inference that the intention persisted to the end and might have taken an even stronger view in a case where a husband, after his mental stability was restored, still continued to remain absent; but he was in a minority and the other view prevailed.
The case was originally heard by Langton, J. who later followed his own view and that of the Court of Appeal in Rushbrook v. Rushbrook [1940] P. 24.
On the other hand, it has been held that physical inability to end the desertion does not prevent its remaining desertion, e.g. Drew v. Drew, 13 P.D. 97, where the husband was in prison. This result has however been explained on the...
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