Gollins v Gollins

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Reid,Lord Evershed,Lord Morris of Borth-y-Gest,Lord Hodson,Lord Pearce
Judgment Date27 June 1963
Judgment citation (vLex)[1963] UKHL J0627-1

[1963] UKHL J0627-1

House of Lords

Lord Reid

Lord Evershed

Lord Morris of Borth-y-Gest

Lord Hodson

Lord Pearce

Gollins (A.P.)
and
Gollins (A.P.)

Upon Report from the Appellate Committee, to whom was referred the Cause Gollins (A.P.) against Gollins (A.P.), that the Committee had heard Counsel, as well on Tuesday the 23d, as on Wednesday the 24th, Thursday the 25th, Monday the 29th and Tuesday the 30th, days of April last, upon the Petition and Appeal of George Gollins, care of Holmwood, Clive Avenue, Church Stretton, in the County of Salop praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 26th of October 1962, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Mabel Gollins, 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 Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 26th day of October 1962, in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Costs incurred by the Appellant and also the Costs incurred by the Respondent in respect of the said Appeal to this House be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Reid

My Lords,

1

In 1961 the Shropshire justices made an order that the Respondent be no longer bound to cohabit with the Appellant, her husband. This order was made because the justices found that he had been guilty of persistent cruelty to her. On appeal a Divisional Court (Sir Jocelyn Simon, P. and Cairns, J.) made an extensive and valuable analysis of the authorities and held, chiefly on the authority of Kaslefsky v. Kaslefsky [1951] P. 38 and Eastland v. Eastland [1954] P. 403, that the facts proved did not amount to cruelty. Their decision was reversed by the Court of Appeal (Willmer and Davies, LJJ., Harman, L.J. dissenting).

2

We have before us notes of evidence given before the Ludlow justices and a note of their reasons. Both are admirably prepared, but they cannot be a full equivalent of a transcript of evidence and a judgment in the High Court. So it is even more necessary for us to be cautious in attempting to substitute a different view of the facts from that taken by the justices. In this case I think I might have taken a different view of some of the facts but I do not find any sufficient grounds for rejecting the view of the justices: it may well be that if I had seen the witnesses and heard the whole of the evidence I would have agreed with them. So I shall state briefly the facts as they appear to have presented themselves to the justices.

3

The parties were married in 1946. They were then aged 43 and 38. There are two daughters born in 1947 and 1949. The husband owned a farm but he was unsuccessful and ran into debt. He sold the farm in 1957 and bought a house at Church Stretton. His wife had given or lent to him considerable sums and he transferred the house to her. The wife has carried on the house as a guest house for elderly people. The husband did little or nothing to help her in running the house: if he had chosen to do so he could have obtained paid employment but he did not do so. He spent a good deal of time and money in trying to invent agricultural machinery, but the justices appear to have regarded this as a mere excuse or as a selfish indulgence. He was incorrigibly and inexcusably lazy, and that has been at the root of the whole trouble. She was an active and capable woman and with little assistance she earned some £25 per week from the guest house, but this was little more than enough to meet expenses. I accept the view of Harman, L.J. that "all that he had done is to hang up his hat in the hall". He was being constantly dunned by creditors. She was alleged to be liable for some of his debts—it is not clear why. But certainly creditors were trying to make her pay and she did pay some of the debts.

4

There was never any suggestion that he was deliberately trying to hurt her or that there were any violent quarrels. She does say that her husband was arrogant and bigoted and not a mild man and did not think of anyone else but himself. But the evidence shows that what worried her and made her ill was his refusal to try to help her or to earn money and clear off his debts. She says:

"Many times people have come to the door seeking my husband because of long standing debts and also the County Court bailiff has been to the door many years. This has worried me to death and I cannot stand any more of it".

5

would seem that she would have been quite content if she could have put him out of the house and continued to maintain herself and her children without being troubled by him and his creditors. She did refuse to cook for him or do anything for him and he left for a time but came back again. First she tried to get a non-cohabitation order without alleging cruelty, but then her health began to be affected and she brought the present proceedings. It is true that he did obtain paid employment for a while but the justices apparently did not see that as a sign of genuine reform.

6

So we have a normal, active and capable woman against whom nothing is said brought to a state of health when she can no longer earn her living or maintain her children solely by the shiftless and selfish conduct of her husband. We must take it that the justices found that he was well aware that his conduct was reducing her to a physical and mental state where she would no longer be able to maintain herself or their children, that if he had chosen to behave as any decent minded man would this could easily have been avoided, but that in spite of his awareness of the consequences he chose to continue to sponge on her in selfish idleness. The question is whether the law of England requires that these two shall continue to live together and would regard her as guilty of the matrimonial offence of desertion if she left him. If that is the law, then she must be told that it is her legal duty as a wife to sink into poverty and ill health and become with her children a charge on the State. But does the law not permit us to say that such conduct in such circumstances amounts to persistent cruelty?

7

No one has ever attempted to give a comprehensive definition of cruelty, and I do not intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weaknesses of the spouses, and probably no general statement is equally applicable in all cases except the requirement that the party seeking relief must show actual or probable injury to life, limb or health. So I shall first exclude the kinds of case with which I am not dealing, with the caveat that much of what I am going to say may not apply to them. First I exclude cases where the respondent acted with a desire or intention to hurt. That kind of case was dealt with in Jamieson v. Jamieson [1952] A.C. 525, and I need say no more than that if one spouse sets out to hurt the other and causes injury to health the means whereby that happens can hardly matter. Then there are difficult cases where the conduct complained of would have caused no damage to a spouse normal in health and temperament, but that does not arise here because this wife was a normal, healthy woman. And there are other cases where the offending spouse suffers from some mental abnormality. The next case which we have to decide, Williams v. Williams, is such a case, and I shall not anticipate what I have to say there. With such cases I associate cases where the offending spouse is too stupid or obtuse to realise the effect which his conduct is having on his wife or her husband. In the present case there is nothing in the husband's condition to palliate his conduct and he must be regarded as fully responsible for it. And no question arises here of the guilty spouse having been provoked in any way.

8

This appears to me to be a plain, uncomplicated case of a husband fully responsible for his conduct, knowing that it was injuring his wife's health and yet persisting in it, not because he wished or intended to injure her but because he was so selfish and lazy in his habits that he closed his mind to the consequences. The facts of this case appear to me to go well beyond the ordinary wear and tear of married life—adopting Lord Asquith's phrase in Buchler v. Buchler [1947] P. 25. So the question must be whether the husband's conduct was of a kind which can in law be called cruel and whether the law requires an intention to injure before there can be cruelty.

9

I shall not make any extensive examination of the authorities now. I intend to look at a good many in Williams's case and I understand that others of your Lordships will do so in this case. Sometimes a distinction is drawn between conduct which is and conduct which is not cruel in itself. That distinction has some validity. Where, for example, there is physical violence of a grave and weighty kind there is no need to look further, as I shall try to show in dealing with Williams's case. But more often the conduct must take its colour from the state of...

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