Francis Kennedy (Petitioner) Letitia Isobel Kennedy (Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE SALMON |
| Judgment Date | 26 June 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0626-1 |
| Docket Number | No. 10535 of 1963. |
| Date | 26 June 1967 |
| Court | Court of Appeal (Civil Division) |
[1967] EWCA Civ J0626-1
In The Supreme Court of Judicature
Court of Appeal
Civil Division.
Appeal from The President 2nd December, 1966
Revised
Lord Justice Willmer
Lord Justice Russell and
Lord Justice Salmon
Mr JOHN P. HARRIS (instructed by Messrs Dawe & Co., Kingston-upon-Thames) appeared on behalf of the Appellant (Petitioner).
Mr PETER K.J. THOMPSON (instructed by Messrs Neil Maclean & Co., Kingston-upon-Thames) appeared on behalf of the Respondent.
We need not trouble you, Mr Thompson.
This is an appeal from a judgment given by the learned President on the 2nd December 1966 whereby he dismissed a husband's petition for divorce brought on the ground of alleged desertion. At the same time he granted to the wife a decree of judicial separation on her answer, whereby she alleged adultery against the husband. There is in fact no issue as to the husband's adultery, which was admitted by him, and was the subject of a discretion statement filed by him. But the husband's case, which the President rejected, was that before the inception of the adultery the wife had already irrevocably and without cause made up her mind never to live with him again, and was therefore already in a state of desertion which has continued ever since. He therefore claimed to have discharged the burden of proof which was upon him of showing that his adultery, of which the wife was aware, had in the circumstances no effect upon her mind so as to stop the currency of her desertion.
The learned President quite obviously found the case one of no little difficulty and so do I. I am bound to confess that, as I have listened to the persuasive argument presented to us by Mr Harris, my mind has fluctuated from time to time during the hearing. Various circumstances conspire to make the case a difficult one. First, it la a regrettable fact that the crucial events upon which the case turns all took place over ten years ago. The recollections of both parties were somewhat vague, especially with regard to dates, nor can it have been easy for them to remember exactly what their state of mind was at any particular time. Secondly, the husband petitioner was not accepted by the learned President as a reliable witness, though his story as to his adultery was accepted, thanks to the fact that it was corroborated by Mrs Kinsella, the woman with whom he has been committing adultery, who was found by the President to be a truthful witness. Thirdly, perhaps the principal source of difficulty is the fact that in the court below the wife appeared in person and conducted her own case. But the learned President was clearly impressed very favourably with the wife. He thought that she was a truthful woman, but he expressed the view that her very truthfulness created difficulties in the case because, when subjected to a perfectly fair cross-examination by Mr Harris, she did undoubtedly give inconsistent answers and made certain damaging admissions.
The parties were married on the 23rd February 1952 in a Roman Catholic church in Belfast, both parties being resident at the time in Northern Ireland. I pause there to remark that one thing which does not appear from the evidence is whether the reason for the wife seeking only the relief of judicial separation is due to her religious convictions or not. There was one child of the marriage born In 1953, who unhappily died in infancy. There was a second child born on the 2nd November 1955, who is at present with the wife.
After some three years of marriage, early in 1955 the parties came to England, and the husband has remained resident in England ever since that time. The learned president found that he had acquired an English domicile which conferred jurisdiction upon thecourt to deal with the case. We have not thought it necessary to hear any argument on that point, for I see no reason to doubt the rightness of the President's decision with regard thereto.
Having come to England, the parties lived for a short time together In lodgings in Ealing, apparently in the same house as the wife's brother. It does not appear to have been altogether satisfactory as a place of residence for a married couple; at any rate, it is clear that the wife did not like it very much, and after a few weeks she returned to Northern Ireland to her mother's home, apparently with the consent of the husband. In June of 1955 she was over in this country again on a fortnight's visit, and again stayed with her husband, who was still residing in the same lodgings. Thereafter she returned once more to her mother's home in Northern Ireland, again I think with the consent of the husband, one of the objects being that the child, which was then already expected, could be born in Northern Ireland. There seems at that time to have been an understanding between the two parties that after the child was born the husband would endeavour to obtain suitable accommodation for a married couple and child, and that the wife would then return to this country and set up home with her husband.
After the child was born the husband in fact visited Belfast for a few days in November 1955, and finally left there on the 23rd November 1955. That date is important, because there has in fact been no cohabitation between the parties since then. It seems to me that everything turns upon what happened during the period immediately following upon that date. The wife never did in fact come over to this country or join the husband, nor does it appear that the husband ever produced any concrete offer of accommodation for her.
The marriage, according to the wife's evidence, was never a particularly happy one. She complained that the husband was too much inclined to associate with other woman. She complained that he never made any real attempt or showed any desire to have a matrimonial home of his own, but was content to live in other people's homes. She complained that when he came over to stay in Belfast in November 1955he treated her and the child with complete indifference, She also made some complaints about conduct of an unkind nature on the part of the husband during the period when they had been living together. None of this formed the basis of any charge brought by the wife against the husband, and I think that it is relevant only in so far as it constitutes the background against which the later events fall to be judged.
Prior to his visit to Belfast in November 1956 the husband had admittedly met and gone out dancing with Mrs Kinsella, the woman with whom he ultimately committed adultery. It seems that after the husband's visit to Northern Ireland in November 1955 it was. according to both side's evidence, contemplated that at some time, and in due course, the husband would find accommodation in London where the wife and child could come and join him. But this in fact never happened, and I think that the whole case depends upon the determination of the question why it never happened. The parties undoubtedly corresponded after their separation at the end of November 1955, and during the period between that separation and the end of April 1966 the wife wrote a number of letters, four of which have survived and were before the court. It is largely from those letters, together with such explanations of them as the wife was able to give in evidence, that we have to gather what her state of mind was during this critical period.
The learned President, who of course enjoyed the advantage denied to us of seeing and hearing the wife for himself, obviously found this a difficult task since, as I have already said, the wife gave a number of inconsistent answers, and also made some rather damaging admissions. The President, however, expressed the view that the wife, in trying to give evidence some eleven years after the event, did have real difficulty in recollecting exactly what her state of mind was. In those circumstances he thought that the letters themselves probably gave a better insight into her state of mind than anything which she now recollects.
I do not think that it is necessary for me to quote extensively from the letters themselves. A number of the relevant passages from the letters have already been quoted in full in the learned President's judgment. The correspondence started with two letters which are said to have been sent respectively on the 19th and 20th December 1955. These two letters have been much relied on in support of the husband's case as showing that, even as early as that, the wife had already made up her mind once and for all never to go back to the husband. The letter of the 20th December, for Instance, speaks of her "decision" (which she admitted in terms in the course of her cross-examination was a "final decision", adhered to from then onwards) never to return to the husband. Nevertheless, the letter of the 19th December (the previous day) seems to make it perfectly clear that the wife was then prepared to receive the husband if be came over to Ireland to spend Christmas with her, as he had apparently promised to try to do. In the event be never did come over to spend Christmas with his wife; but the very fact that she was writing in those terms and contemplating the possibility of his coming over, at least casts a good deal of doubt upon the view that she had by that time arrived at anything like a final decision never to cohabit with the husband again.
The letter of the 20th December contains a number of complaints against the husband. It complains of his habit of associating with other women, and asserts that the suspicions which the wife harboured in that connection were confirmed by a letter she had received from the husband, in which he had described the wonderful time that he was having going out with other women to dances, and...
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