Grenfell v Grenfell

JurisdictionEngland & Wales
JudgeSIR DAVID CAIRNS,LORD JUSTICE STAMP
Judgment Date04 May 1977
Judgment citation (vLex)[1977] EWCA Civ J0504-4
Date04 May 1977
CourtCourt of Appeal (Civil Division)
Between:
Amalitsa Evagoras Grenfell
Petitioner
and
William Noel Grenfell
Respondent

[1977] EWCA Civ J0504-4

Before:

Lord Justice Stamp

Lord Justice Orkbod and

Sir David Cairns

In The Supreme Court of Judicature

Court of Appeal

Civil Division

On Appeal from Order of Dunn, J.

Mr A. B. EWBANK, Q., C. and Mr G. R. PLATFORD (instructed by Messrs Kenwright & Cox) appeared on behalf of the Appellant (Petitioner).

Mr J.E.A. SAMUELS (instructed by Messrs Kenneth Brown, Baker, Baker) appeared on behalf of the Respondent.

LORD JUSTICE STAMP
1

I will ask Lord Justice Ormrod to deliver the first Judgment.

2

LORD JUSTICE ORMROD: This is an appeal by a wife from an Order which was made by Mr Justice Dunn on the 14-th March this year. The learned Judge's Order was in two parts, and the appeal is brought from both parts of the Order. The first matter that was before the learned Judge was an appeal by the wife (who was the Petitioner in the suit) from an Order which had been made earlier by Mrs. Registrar Butler-Sloss on the 24-th February, 1977. The second part of his Order dealt with a preliminary issue which the Registrar had ordered to be tried.

3

To understand the matter it is necessary to go back to look at the Order which was made in the first place by the learned Registrar. The learned Registrar ordered that the wife Petitioner's Reply be struck out and that a preliminary issue be drawn up by Counsel for the parties and settled by the Registrar, and then omitting parts that do not matter, "The issue be heard by the Judge in open Court". The issue as settled by Counsel and approved by the Registrar was: "Whether on the basis of the present pleadings in this suit the Court should first determine whether the facts pleaded in paragraph 4 of the Answer herein are established" - that alleged five years separation - "and, if so, whether the Court should thereafter receive evidence from the Petitioner in support of paragraphs 9 to 28 inclusive of nor Petition in support of the prayer for dissolution contained in the Petition". The result of the learned Judge's Order was that he dismissed the appeal from the Registrar, the effect of that being that the wife's Reply remained struck out, and he decided the preliminary issue in favour of the husband.

4

The hack ground to this case can he stated quite shortly. The parties were married on the 22nd December, 1951. At that time the husband was 46 and the wife was 28; so they are now respectively 72 and 53. The wife is by nationality or origin Greek, and she is a member of the Orthodox church. The husband is English. They had no children and they eventually parted in July 1969, when the husband left.

5

So far as proceedings for dissolution are concerned, nothing was done by either party until very shortly before the five year period elapsed, when on the 1st April, 1974 the wife filed a Petition for divorce on the ground of the husband's conduct. In that Petition she set out a long series of complaints about his conduct during the marriage, and it is those allegations of conduct which she now wishes to have tried.

6

The husband, not surprisingly, delayed filing his Answer until the 8th August, 1974, by which time the period of five years separation had elapsed. By that Answer he denied the allegations in the Petition, alleged the five year separation and made certain proposals for financial provision for the wife, and asked in his turn for the prayer in the Petition to be rejected and the marriage to be dissolved on the basis of the five year separation.

7

By her Reply the wife, first of all, included a formal paragraph, putting in issue the allegations in the Answer in so far as they were anything other than admissions. Then she went on to admit paragraph 4 of the Answer; that is, she admitted that the parties had lived separate and apart for a continuous period of at least five years immediately preceding the presentation of the Answer, namely from and since the 27th July, 1969. Butshe alleged that the dissolution of the marriage at the suit of the husband would result in grave hardship to her, and she gave these particulars of the alleged hardships "(1) She is of the Greek Orthodox faith; (2) As a practising Christian her conscience would be affronted if the marriage were to be dissolved otherwise than for grounds of substance whereby the true cause of the breakdown of the marriage will be determined by the Court and a decree pronounced accordingly".

8

In the third paragraph she said: "Further and alternatively the Petitioner contends that the financial provisions set forth in the Reply are inadequate in any event and that if implemented after a decree had been granted to the Respondent the Petitioner would suffer grave financial hardship". That last plea has been abandoned, I think, at all stages in this case, certainly in this Court by Mr Ewbank.

9

The next stage was that a date for trial was fixed as long ago as the 9th July, 1976, the date for trial being given as the 14th March this year, but before the date for the hearing arrived, the husband took out a Summons on the 2nd February which asked for a variety of different reliefs. I read the Summons, He asked "for an Order that the Petition herein and/or so much of the Reply herein as joins issue with the Cross-Petition contained in the Respondent's Answer filed herein be struck out under Order 18, Rule 19, of the Rules of the Supreme Court and under the inherent jurisdiction on the ground that: (a) It is frivolous and vexatious and (b) It is an abuse of the process of the Court; and that the prayer of the Petition so far as the same relates to dissolution of the marriage between the Petitioner and Respondent be stayed and that the cross-prayerfor the dissolution of the marriage contained in the Respondent's Answer herein do proceed as an undefended suit".

10

That Summons came before the learned Registrar on the 24th February, and we have a note of her Judgment, which she has approved, and although Mr Samuels, for the husband, still has not apparently been asked for his formal approval, he does not seriously quarrel with it. The first thing that the learned Registrar held was that the Petition could not be struck out as being frivolous and vexatious, because at the time when it was filed it was perfectly proper. That was not challenged before the learned Judge and is not challenged here.

11

Then, dealing with Section 5 of the Matrimonial Causes Act, 1973 the learned Registrar held that its purpose was to prevent dissolution of the marriage and not to prevent dissolution by granting a decree to a particular person, or I think I might add, on a particular ground. So she held, the wife having already asked for a divorce in her Petition, it was not open to her to raise the defence provided by Section 5. The question of hardship, therefore, simply did not arise.

12

So the learned Registrar struck out the whole Reply. She did not, for reasons she gave, strike out the Petition itself or stay the prayer, but she then ordered this preliminary issue to be decided, which seems to me to have been more in the nature of a Summons for directions for trial than a preliminary issue as such, but, in the event, the learned Judge agreed with the Order made by the learned Registrar and dismissed the wife's appeal, and directed: that the Court should first determine whether the facts pleaded in paragraph 4 of the Answer are established, and, if so, to grant a decree on that prayer.

13

I will deal first with the question of the Reply. Mr Ewbank has contended, in the first place, that the wife ought to be entitled to put forward her defence to the husband's Petition, or Cross-Petition, and he took the point that Section 20 of the 1973 Act was relevant. Section 20 provides: "If in any proceedings for divorce the respondent alleges and proves any such fact as is mentioned in subsection (2) of section 1 above (treating the respondent as the petitioner and the petitioner as the respondent for the purposes of that subsection) the court may give to the respondent the relief to which he would have been entitled if he had presented a petition seeking that relief". Mr Ewbank has drawn attention to the fact that the word "may" occurs in that section, and says that that gives the Court, and is intended to give the Court, a discretion. The word "may" sometimes does give the Court a discretion, but sometimes it simply empowers the Court to do something, and the purpose of that section, in my judgment, is perfectly simple: it is desisted to save the multiplication of pieces of paper in the way of pleadings, and it means no more than this, that if a respondent in his Answer raises sufficient matter, and establishes it, to entitle him, had he been the petitioner, to a decree, then the Court may grant him one. It is a purely enabling section, designed to avoid multiplicity of pieces of paper and making amendments which add nothing to the case. So I do not think that he can get any assistance from Section 20.

14

It is, quite clear that the purpose of Section 5 is to...

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