Cruelty Without Culpability or Divorce Without Fault
| Published date | 01 November 1963 |
| Author | L. Neville Brown |
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb02232.x |
| Date | 01 November 1963 |
CRUELTY WITHOUT CULPABILITY
OR
DIVORCE WITHOUT
FAULT
ON
June
21, 1963,
the Lords Spiritual and Temporal rejected an
amendment to the Matrimonial Causes and Reconciliation Bill which
would have permitted a divorce after seven years’ separation.2 On
June
27
the House of Lords, sitting as the ultimate appellate
tribunal, delivered itself,
on
one and the same day, of two decisions
which, as this article hopes to show, have
so
greatly expanded the
concept of matrimonial cruelty that the basis of
our
divorce law
has been tilted away from the traditional doctrine of the matri-
monial offence and moved nearer to the principle of breakdown of
marriage
or
“
divorce without fault.”
The two cases of
Gollins
and
Williams
must rank. together
as the most important judicial survey of the concept of cruelty since
1897
when the same tribunal laid down that injury to health was
the essential hallmark of cruelty as a matrimonial offen~e.~ The
composition of the court was the same in both cases (Lord Reid,
Lord Evershed, Lord Morris, Lord Hodson and Lord Pearce) and
in
both cases Lord Morris and Lord Hodson gave strong dissenting
judgments. All of their lordships delivered separate judgmentsY6
their reasoning in the
one
case usually being closely related
to
their
reasoning in the other. Indeed, the two cases must be read together
as a pair, and although they fill sixty-three pages of the
All
England
Law Reports,
their length is relieved by the sharp clash
of
judicial
opinion which they reveal. Moreover, not only is there the exhaus-
tive and authoritative review of the previous case-law which one
would expect from the House of Lords, but one finds also (which
may surprise some) a realistic appraisal
of
the practical social
considerations involved in their conclusions.
Gollins,
a case originating
in
a separation order made by the
Ludlow magistrates, decided that an intention to injure one spouse
is
not an essential ingredient of cruelty.
Williams,
which was a
wife’s petition for divorce, decided that insanity was not necessarily
1
By
52
votes to
31.
2
Subject to various safegnards. The rump of the Bill has now been enacted
as the Matrimonial Causes Act,
1963,
and came into effect on
Julj-
31.
For
useful commentaries on the Act, see p.
675
below (Miss
0.
M.
Stone) and the
two articles by Mr. Samuels in
(1963) 107
S.J.
623
and
639.
3
Gollins
v.
Gollins
[1963] 3
W.L.R.
176; [1963]
2
All
E.R.
966.
4
Williams
v.
Williams
[1963]
3
W.L.R.
215;
“€231
2
All
E.R.
994.
5
In
Russell
v.
Russell
[1897]
A.C.
395.
6
Busy
divorce practitioners may a-ell lament that our highest tribunal does
not
restrict itself to an agreed majority (and dissenting) judgment. In the United
States the current fashion within the Supreme Court
for
the separate opinion,
whether
in
concurrence or dissent, has aroused severe criticism (see,
e.g.,
Kaoper,
Frontiers
of
Constitutional Liberty
(1956),
p.
16).
625
626
TEE
MODERN
LAW
REVIEW
VOL.
26
a defence to a charge of cruelty. Both decisions were reached by a
majority of three law lords
to
two;
Williams
reversed majority
decision of the Court
of
Appeal. The dissentients, Lord Morris
and Lord Hodson, like Willmer and Davies L.JJ. in the court
below, take the view that a certain state of mind
is
required before
cruelty can be made out and, as a logical corollary, that a person
who did not know what he was doing cannot
be
guilty of cruelty.
The majority (Lord Reid, Lord Evershed and Lord Pearce), having
adopted the view
in
Gollins
that an intention to injure is not a
necessary element of cruelty, proceeded in
Williams
to the con-
clusion that insanity did not of itself constitute a defence to a suit
for divorce
on
the ground
of
cruelty.
It
is
proposed to state the facts and to summarise, as shortly
as their importance permits, the several judgments in each case in
turn, and afterwards to examine the effect of the two decisions,
first upon the concept of matrimonial cruelty, and secondly, upon
the related ground of constructive desertion.
Goms:
THE
CASE
OF
THE
LAY-ABOUT
HUSBAND
In
Gollins
the husband, who was variously described as bone idle
and a lay-about who did nothing except hang up his hat in the
hall,' was content to let his wife
run
the home in Church Stretton as
a
guest-house
in
order to meet the financial burdens of the house-
hold, including staving off the husband's creditors. Although he
was incorrigibly lazy, the evidence did not show any wish
on
his
part to harm
his
wife
nor
was there any actual physical violence
towards her.
In
1960
the wife warned him that she could not stand the strain
of
his
debts any longer and that if he did not get work and clear
himself of debt she would take proceedings; she also asked him to
stay away from the guest-house. This warning was contained
in
a
letter written to the husband whilst he was temporarily away from
home. As her warning had
no
effect, she obtained from the Ludlow
magistrates a maintenance order for him to pay her
€3
a week,
together with
21
a week for each of their two children, the ground
for the order being his wilful neglect to maintain herself and them.
Cruelty was not alleged
on
this occasion nor was any non-cohabita-
tion clause inserted in the order, but the husband began to occupy a
separate bedroom and had little contact with his wife. The main-
tenance order was made in January
1961,
but the husband never
paid more than a fraction of the amounts ordered.
In
the October
of that year the wife applied to the magistrates for
a
variation of
the original order by the insertion of a non-cohabitation clause
on
the ground of his persistent cruelty.
No
doubt she was advised
that without proof of cruelty
or
the like such
a
clause was not
7 IIarman
L.J.'s
telling phrase
(at
[1962]
3
All
E.R.
903,
letter
I).
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