Cruelty In Matrimonial Causes
| Published date | 01 July 1949 |
| Author | Lionel Rosen |
| DOI | http://doi.org/10.1111/j.1468-2230.1949.tb00129.x |
| Date | 01 July 1949 |
CRUELTY IN MATRIMONIAL CAUSES
TEE
Court of Appeal has recently given a number of important
decisions
on
cruelty, and the time is perhaps, therefore, appropriate
to
review the law
on
the subject as
it
stands today.
Cruelty and Legal Cruelty.
The popular idea as to what is cruelty’ does not necessarily
coincide with such cruelty as will entitle a spouse to a remedy in
law. The latter is sometimes called
‘
Legal Cruelty
’.
said
:-
‘
I
do not think there
is
such
a
thing as
“
Legal Cruelty
”
as distinct from actual cruelty; cruelty means
“
cruel con-
duct
)’,
whether in legal language
or
the vernacular.’
But this expression, however,
is
exceptional and in general the
courts do make a distinction between the two.
For
example
Sir
C.
Cresswell in
Suggate
v.
Suggate
said
:-
and Lord Herschel1 in
Russell
v.
Russell
‘
said
:-
It
is true that Shearman
J.
in
Hadden
v.
Hadden
‘Cruelty
in
ordinary language is an ambiguous term’,
‘It
was conceded by the learned counsel for the appellant
and is indeed, beyond controversy that it is not every act of
cruelty in the ordinav and popular sense of the word which
amounted to saevitia, entitling the party aggrieved
to
a
Divorce
;
that there may be many wilful and unjustifiable acts
inflicting pain and misery in respect
of
which that relief could
not be obtained.’
Then there is the rather extraordinary statement of Sir
F.
Jeune
P.
in
Jeapes
v.
Jeapes
ti
:-
‘To leave a wife to starve is undoubtedly cruelty, but
I
was not certain it could be construed into legal cruelty.’
The courts have never fixed the line which divides those acts
which they consider
‘
Legal Cruelty
)
from those which they think
do not, for that line must necessarily be a fluctuating one depending
on the ideas prevalent in each generation.
In
this sense, what is
‘Legal Cruelty) is
in
some measure a test of our civilisation.
There is a tendency, albeit a gradual one, to relax the require-
ments of what is necessary to prove ‘Legal Cruelty’, and our
1
The
Shorter
Orford
Dictionary
defines cruelty
as
‘
The quality
of
being cruel;
disposition
of
inflicting suffering; delight in or indifference
to
another
6
pain;
tnercilcwness, hard-heartedness
.
a
Times,
December
5.
1910.
3
(1859)
1
Sw.
&
Tr.
489.
4
[1897]
A.C.
at
p.
445.
6
(1903)
28
L.T. 74.
a24
CRUELTY
IN
MATRIMONIAL CAUSES
a25
JULY
1949
ideas are less rigid
or
hard boiled than those of our fathers
or
forefathers. Lord Stowell said in
Evans
V.
Evans
:-
‘
.
.
.
it
is the duty of the courts to keep the rule extremely
strict. The cause must be grave and weighty and such as to
show an absolute impossibility that the duties of married life
can be discharged.’
Then as late as
1919
Scrutton L.J.
‘
said that the law
of
cruelty
in divorce, must be closely watched against a tendency to take
a
too lenient view of what constituted ‘Legal Cruelty’, and after
agreeing with Lord Stowell’s words about grave and weighty
’
added,
‘
It
is not every conduct that causes injury to health which
An examination
of
modem cases, shows that the courts will
find conduct as legal cruelty which would hardly have been held
to be such in former times.‘
Female Equality.
There
is
no
doubt that ideas have changed as to the manner
in which women should be treated; and the legislature has
endeavoured as far as possible to put men and women on an
equality,
so
far as the law is concerned.*
The development of ideas as to the correct treatment of a wife
was discussed by Blackstone
lo
who wrote
:-
‘The husband also (by the old law) might give his wife
moderate correction.
.
.
.
But, with us, in the politer reign
of Charles the Second, this power of correction began to be
doubted; and the wife may now have security of-the peace
against her husband,
or,
in return,
a
husband against his wife.
Yet the lower rank of people, who were always fond of the
old common law, still claim and exert their ancient privilege;
and the courts of law will still permit
a
husband to restrain
a wife
of
her liberty, in case of any gross misbehaviour.’
In Victorian times women were subject to many disabilities
;
and
it
was widely believed that a married woman was under a legal
duty implicitly to obey her husband, and if she were recalcitrant,
that he was permitted to use force to bring her to reason.
Readers
of
Trollope’s novels will remember that the basis of
a
number of his plots, is the conflict between a wife’s legal duty
to obey her husband and the instinct
of
a spirited woman to assert
her independence (see
for
example,
Phineas Phinn, The
Prime
Minister
and
Is
he
Popinjoy
?).
could be considered cruelty.’
6
1
Hagg.Con.
35
at
p.
37.
7
Timea,
December 11,1919.
see,
e.g.,
Lauder
v.
Lauder
[1949]
1
All
E.R.
76,
where
a hueband sulked and
ignored his wife,
seriously
affecting her nervous stability, which
ww
held by the
C.A. to
be
cruelty.
*
see,
e.g.,
the
Sex
Disqualification Removal Act, 1919, and the preamble to the
Guardianship
of
Infanta Act, 1926.
10
Blackstone’s
Commentaries,
12th ed.,
Vol.
444.
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