Ellis v Ellis and Wilby
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD,LORD JUSTICE DANCKWERTS |
| Judgment Date | 15 February 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0215-4 |
| Court | Court of Appeal |
| Date | 15 February 1962 |
[1962] EWCA Civ J0215-4
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod
Lord Justice Willmer and
Lord Justice Danckwerts
MR L. I. STRANGER-JONES (instructed by Messrs Harvey, Miller Butler & Wallace, Agents for Weigall & Inch, Margate) appeared on behalf of the Appellant (Petitioner).
THE RESPONDENT was not represented.
I think, really, we have all come to the conclusion that we should allow this Appeal and, therefore, I just any, quite shortly, that this is an Appeal from a decision of His Honour Judge Glaze brook, sitting as a Special Commissioner of Divorce at Middlesex, on the 21st July, 1961, when he dismissed the petition of the husband which was based, first of all, upon adultery which had been condoned and, in the submission of the Petitioner, revived by the subsequent desertion by the wife; and, alternatively, he based the petition upon the desertion by his wife for the three years immediately preceding the presentation of the petition.
There was a Co-respondent cited in the suit, a Sergeant Wilby, who, on the finding of the learned Judge, was the father of an illegitimate child to which the Respondent gave birth. He has not been found. There was an order by the Registrar to serve him by advertisement by way of substituted service and he has been served in this Appeal in the same way as the result of a similar order made at a later stage.
The circumstances of this case, very shortly, are that the parties were married on the 8th May, 1939. The child was born on the 14th March, 1940. The petitioner joined the Army and was posted abroad in August, 1940. He returned in 1942 (probably about April) because he had received a letter from his wife saying that she was pregnant by another man - who turned out to be this man Wilby - and a child was born to her, of which Wilby was the alleged father, on the 13th April, 1942. The Commissioner has found that the child was born as a result of an adulterous intercourse between the wife and the Co-respondent, Sergeant Wilby. It would appear - though I do not think there is any real certainty as to these dates - that in about August, 1942, the husband and wife separated. The husband says he left the house because his wife told him to get out; she has a rather different story. But early in 1943 the husband went abroad again. Hereturned from service overseas in November, 1945, and attempted then a reconciliation with his wife. It would appear that she took him back and they lived together for a few days, possibly at the most a week, on rather uneasy terms and, as I understand it, once again separated in November, 1945; and did not live together again. The husband alleges that he was turned out, and he has given evidence to that effect before the learned Commissioner.
At that time the wife was living not very far from Camberley, at a place called Frimley Green, and the husband had been stationed at Camberley when he came home in November, 1945, still a serving soldier; but he was then demobilised or discharged from the Army and he got work elsewhere as a van driver. But on the 20th June, 1946, there was a summons heard in the Magistrates' Court at Camberley whereby the wife asked for maintenance from her husband on the ground of his desertion. He did not attend and was not represented, and an order was then made against him on the ground of desertion and he was ordered to pay to his wife the sum of £1. 10s.0d. a week and 5s. Od. in respect of each child – one child being the child of the marriage and the other child being the child alleged to be the result of the adultery.
It appears that the husband then made a number of attempts at reconciliation. He first attempted it at, or just before, Christmas, 1946, when he asked his wife either to go back to him or to allow him to come back to her, but she refused. He tried again in May, 1947, with a similar result. He tried again some time in 1950, when he had been offered work with accommodation. He wanted his wife to go back to him but she refused on the ground, apparently, that at that stage she had an invalid mother who was living with her and required her constant care, the mother having had rather a bad stroke and being paralysed. The last occasion was probably in May, 1954, when the husband again asked to go back to live with his wife and said he was prepared tolive at the house at Frimley Green, but the wife again refused to have the husband hack and that attempt at reconciliation on the husband's part broke down. That was the last attempt he made. From 1954 until this petition was presented in October, 1960, no further attempt was made by the husband to return to his wife or to get his wife to return to him. He explains the delay from 1954 until 1960 when the petition was presented by the fact that he was in hospital a good deal in that period and had five stomach operations over the period and was - according to his evidence, which is not contradicted by anybody - very ill indeed. But in 1958, apparently, he was sufficiently recovered and soon after that he consulted his solicitors with a view to filing a petition, which was done.
The learned Commissioner gave no judgment in the sense that he did not at any stage set out his...
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