Gosling v Gosling
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE DANCKWERTS,LORD JUSTICE SACHS |
| Judgment Date | 17 February 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0217-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | G. 1964. (D). No. 265 |
| Date | 17 February 1967 |
[1967] EWCA Civ J0217-2
In The Supreme Court of Judicature
Court of Appeal
Civil Division
Appeal from Order of Judge Harold Brown Q.C., at Brighton dated 7th November, 1966.
Lord Justice Willmer,
Lord Justice Danckwerts and
Lord Justice Sachs.
Mr. G. LANGDON DAVIES (instructed by Messrs Blyth, Button, Wright & Bennett, Agents for Messrs Coole & Haddock, Horsham) appeared on behalf of the Appellant (Petitioner).
Mr ANTHONY J.D. McCOWAN (instructed by Messrs Boulton & Lowe, Agents for Messrs Rawl Anson & Butler, Horsham) appeared on behalf of the Respondent.
Mr JACK H. HAMES appeared on behalf of the Law Society.
The parties in this case are both over seventy years of age, and were married as long ago as the 19th June 1820. There are no children of the marriage now living. In 1947 the husband left the wife, and there has since been no cohabitation between the parties. Since that date the husband has lived in a house with another woman, who has acted us his housekeeper. It is not alleged, however, that he has bean guilty of adultery or of any improper relations with this other woman
The wife, who was a woman who earned her own living, took no action until 1963. She then, however, engaged an inquiry agent, who was able to interview the husband and obtain a statement from him. In that statement the husband says: "During the year 1947 …. I decided to leave my wife and in fact left the home never to return.Since that date I have never lived with my wife again and have no intention of returning to her at any time". The statement does not allege that the husband had any just causes for leaving; the only reason given is that there was a series of arguments, and the marriage became unhappy. The statement contains no suggestion that the wife consented to the separation.
Armed with this confession statement the wife presented a petition for divorce dated the 20th March 1964, but not filed till the 12th May of that year. On the 2nd September 1964 the husband obtained a legal aid certificate for the purpose of defending the suit, and entered a general appearance. In the following month there was an Interview between the parties' solicitors, at which it appears to have been intimated by the husband's solicitor that the husband would deny desertion and would allege constructive desertion, on the part of the wife. This was said to arise from the relation ship between the wife and a man who became a lodger with the parties in 1940, and who has been a lodger with the wife substantially ever since. But it was not then suggested, and never has been suggested, that there have ever been any improper relations between the wife, and the lodger. In spite of the husband's solicitor's intimation of a possible defense, however, no answer has ever been filed on behalf of the husband.
For many years after the separation the husband paid the wife £3 per week by way of maintenance About 1960, when the husband retired, this was reduced to 10s. per week, but since the petition was filed no maintenance whatever has been paid. Thanks to her own work and to the maintenance received from her husband over the years the wife has been able to accumulate a modest sum of capital, sufficient at any rate to render her ineligible for legal aid. The husband, on the other hand, is without means, and is substantially living on his retirement pension. In these circumstances there can be no real likelihood of the wife being awarded anything significant by way of maintenance, or even recovering her costs of the suit.
In early 1966 correspondence took place between the respective solicitors, from which it emerged that they were prepared to enterinto an agreement whereby, provided that the wife claimed no more than a nominal sum of one shilling per annum by way of maintenance and did not ask for costs, the husband would no longer defend the suit. In consequence a summons was issued on behalf of the wife on the 13th October 1966 whereby relief was sought in the following terms: "That the Court do take Into consideration for the purposes of section 6, subsection (2), of the Matrimonial Causes Act, 1965, the agreement to be made between the Petitioner and the Respondent (particulars of which are set out in the affidavit to be used in support of the said application, a copy whereof is delivered here with) and do give such directions thereon as the Court thinks fit".
The summons was heard on the 7th November 1966 by his honour Harold Judge Brown, Q.C., sitting as a special commissioner in divorce at Brighton, when he refused to approve the proposed agreement, but granted leave to appeal without further hearing. The learned commissioner gave no further directions. The wife now appeals to this court, and her appeal is warmly supported by the husband. It is apparent that both parties desire the case to be heard as an undefended suit on the terms provided by the proposed agreement.
Section 5 of the Matrimonial Causes Act 1965 is the section which defines the powers and duties of the court in relation to the hearing of a divorce petition. Subsection (2), under which the present application was made, is in the following terms: "(2) Provision may be made by rules of court for enabling the court, on application made either before or after the presentation of the petition, to take into consideration for the purposes of this section any agreement or arrangement made or proposed to be made between the parties and to give such directions in the matter as the court thinks fit; but nothing in this subsection affects any duty of the parties to disclose to the court any agreement or arrangement made between the parties in contemplation of or in connection with the proceedings".
In pursuance of the subsection a new rule has been made and incorporated as Rule 2A of the Matrimonial Causes Rules, which provides, so far as material to the present case, (a) that anyapplication under the subsection shall be made to a judge, and (b) that the application shall be supported by an affidavit by the applicant or his solicitor setting out particulars of the agreement or arrangement in question and the grounds on which the application is made. In the present case the application was supported by an affidavit sworn by the wife's solicitor.
Section 5, subsection (2), of the Act of 1965 is in substance a re enactment of a similar provision first introduced in the Matrimonial Causes Act, 1933. By that Act a radical change was effected in the law relating to collusion, which became a merely discretionary bar to relief, instead of an absolute bar as it had previously been. But it remains the duty of the court, on the hearing of a divorce petition, to inquire, so far as it reasonably can, whether any collusion exists between the parties.
Since the passing of the Act of 1963 the affect of the change in the law relating to collusion, and the matters to be considered by the court on an application under what is now section 5, subsection (2), of the Act of 1965, has been considered in a number of cases at first instance, to some of which shall have occasion to refer hereafter. But this is the first occasion on which any of these questions has arisen for consideration in this court. I think it is desirable, therefore, to start at the beginning, and to Inquire what was, and what was not, regarded as amounting to collusion under the law as it was before 1963.
Collusion has never been the subject of any statutory definition. It is defined in Rayden, ninth edition, page 340, in terms which have since received judicial approval, a follows; "Collusion means an agreement or bargain between the parties to a suit or their agents, whereby the initiation of the suit is procured or its conduct provided for? but not every bargain entered into by parties to a pending divorce suit is collusive. An essential element in a collusive bargain is an attempt to pervert the course of justice".
Even before the passing of the 1963 Act it was frequently hold that the parties to a divorce suit were free to enter into asensible agreement or arrangement with regard to ancillary matters, such as custody of children, maintenance and so forth even during the currency of the proceedings, provided that such agreement or arrangement did not include any term affecting the conduct of the suit. As was said by Sir Jocelyn Simon (President) in Mulhouse v. Mulhouse (1966 Probate Division, page 39, at page 49): "It is perfectly proper, indeed it may be laudable, for the parties to come to reasonable agreement as to damages or costs of maintenance or custody and access or property disputes between them. Such arrangements, once concluded, may not infrequently load a party to feel that it is no longer in his or her interest to contest the allegations made in the main proceedings. But what is not permissible is to introduce as a term of the agreement or arrangement, so that it forms part of the consideration, the abandonment of a defence which is believed to be good
As was pointed out by Mr Justice Scarman in Nash v. Nash, (1935 Probate Division, page 266, at page 269) the effect of the 1963 Act was to give the court power to discriminate between objectionable and non objectionable collusion, and in the case of the former to confer on the court a discretion to grant relief not with standing the existence of the collusion. The Act was, however, silent as to the tests to be applied in determining whether a particular collusive agreement should or should not properly be regarded as objectionable, so as to necessitate the withholding of relief. It has been left to judicial interpretation to set the standards by which this difficult quotation is to be determined.
In what I believe to be the first case in which this question fell to...
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