Gore-Booth v Gore-Booth
| Jurisdiction | England & Wales |
| Year | 1953 |
| Date | 1953 |
| Court | Divisional Court |
Husband and Wife - Divorce - Procedure - Service of petition - Absence of appearance - Respondent of unsound mind - Mandatory nature of rules -
The provisions of rule 64 (5) and (9) of the Matrimonial Causes Rules, 1950, are mandatory. It is important that the court should guard jealously the provisions of the rule, which was framed for the express purpose of protecting infants and persons of unsound mind.
A husband who had been served personally with a petition for divorce, and who had failed to enter an appearance, was held to have been of unsound mind at the material times. No application had been made for the appointment of a guardian ad litem and the wife had been granted a decree nisi in the undefended list. Application was made to the Divisional Court for a rehearing:—
Held, that in view of a failure to comply with the provisions of the rule, the decree must be set aside.
Per Pearce J.: It may be necessary in some future borderline cases to investigate with more particularity the precise area covered by the words “of unsound mind” in rule 64.
MOTION for a rehearing of an undefended petition for divorce.
The parties were married in 1948 on October 5, 1951, the husband became a temporary patient under the (Irish)
In April, 1952, the wife presented a petition for divorce on the ground of cruelty, relying in respect of jurisdiction upon section 18 (1) (b) of the
On May 6, 1952, the wife's solicitors wrote to Dr. J. N. P. Moore, the medical superintendent of St. Patrick's Hospital:
“You will appreciate that it was necessary for us to arrange for Mr. Gore-Booth to be served with a copy of the petition and other papers connected with the divorce, and with this object in view we instructed agents in Dublin. We advised our agents that Mr. Gore-Booth was a patient at your hospital, and had assumed that they would get in touch with you for guidance as to when service could be effected. We have now ascertained, however, that our agent interviewed Mr. Gore-Booth at St. Edmondsbury, Lucan, Dublin, on both April 16 and 22, when, on the latter occasion, service of the documents was duly completed. Mr. Gore-Booth refused to sign the acknowledgment of service form which was handed to him by our agent, and has not caused an appearance to the action to be entered on his behalf. We are very loth to take steps for the action to be set down for trial in the undefended list until we have satisfied ourselves that Mr. Gore-Booth understands that his wife has taken proceedings for divorce, and that unless he forthwith takes some action in the matter the case will be heard by the court in his absence. Might we trouble you to let us know whether, bearing in mind his recent mental illness, you have any reason to suppose that he has not understood the nature and purport of the documents that were recently served on him. We look forward to hearing from you in this matter at your earliest convenience.”
Dr. Moore, after making it clear that he had got in touch with the family before answering, said in his reply of May 17, 1953:
“He [the husband] has had a serious illness and has recently completed a prolonged course of treatment and is now convalescing at our branch hospital in Lucan. I am glad to say that he has made excellent progress with treatment and I hope before long he will be able to leave hospital. I think it is most unfortunate that at this stage he should have the stress and strain of dealing with a legal matter such as you mention in your letter. In the interests of his health and complete recovery I should be most grateful if you could postpone taking any action in the matter for, say, six months, when I hope that Mr. Gore-Booth will be able to deal with the matter himself. Certainly as long as he is in hospital I think it would be inadvisable for him to deal with the matter, and I am sure you too would feel it more satisfactory that he should be out of hospital before proceeding with the action.”
The husband left the convalescent hospital on June 21, 1952. The circumstances of his discharge are given in the communication of May 7, 1953, from Dr. Moore, referred to below. No appearance was entered by the husband and on July 31, 1952, the wife was granted a decree nisi of divorce in the undefended list. On August 17, 1952, the husband filed in person a notice of motion for a rehearing, putting forward as the grounds of the appeal (sic):
“(1) That of illness when the petition was supposed to be served and therefore...
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