Greta Valerie Middleton (Petitioner) John Middleton (Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE DIPLOCK,LORD JUSTICE WIDGERY |
| Judgment Date | 19 July 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0719-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 July 1968 |
[1968] EWCA Civ J0719-3
In The Supreme Court of Judicature
Court of Appeal
Civil Division
Appeal from JUDGE McDonnell (London) 15th December, 1967
Revised
Lord Justice Willmer
Lord Justice Diplock and
Lord Justice Widgery
Mr DAVID L. PREBBLE (instructed by Messrs Edward Mackie & Co.) appeared on behalf of the Appellant (Petitioner)
THE RESPONDENT appeared in person
This is an appeal from the refusal of, His Honour Judge McDonnell to grant a decree of divorce to a wife who presented a petition on the ground of desertion by the husband. In presenting her petition the wife prayed for the exercise of the court's discretion in her favour having regard to the fact that she was herself guilty of an adulterous association.
The relevant facts can be stated very shortly. The parties were married on the 12th March 1955 and there are two children of the marriage, one of the age of twelve years and the other nearly ten. By her petition presented on the 22nd August 1957 the wife alleged that the husband deserted her on the 20th August 1954. The petition was undefended, and the wife proved that on that date the husband in fact left her. She said that lie told her that he was in love with another woman and could not stand the wife any more. There has been no resumption of cohabitation since the date of the separation.
In October 1964 there were proceedings before the magistrates on cross–summonses brought by each of the parties, each of them alleging desertion against the other. Those proceedings resulted in the husband's summons being dismissed, while on her summons the wife obtained a finding of desertion coupled with an order for maintenance in her favour, and an order for custody of the two children. There was a subsequent magistrate's order some two years later, but that merely related to the definition of the terms of the husband's access to the children.
The wife in her discretion statement said that following the husband's departure she associated with another man. His name need not be mentioned, but I gather that he was the brother of some mutual friend of the husband and wife. She says that she committed adultery with him on the 27th September 1964, that is to say, only some five weeks after the husband left. She committed adultery with him again at Christmas 1964, and thereafter at intervals of about a month "or a period of two years on and off, ending in April 1967, when she says that the association ceased. In evidence she was presented with her discretion statement and swore that it was the truth, and she said there had been no adultery other than that admitted therein. The only other possible complicating feature of the case was some evidence the wife that about eighteen months before the hearing the husband had purported to make some sort of offer of reconciliation. He made that offer, she said, or an occasion, when he called at the house to see the children; he came in a car and had a girl friend sitting in the car with him. When the wife was asked whether it was an unconditional offer, she answered that he was rather laughing, and that he said words to the effect that "if I let him go out four nights a week, and in no circumstances asked questions, he would come back and look after us". She was then ashed; "Did you regard it as a genuine offer?", and she said "No".
The order that was drawn up by the court sets out that the petitioner had sufficiently proved the contents of her petition, namely, that the respondent had deserted the petitioner withoutcause, but it goes on to say that the learned commissioner refused to exercise the discretion of the court, and therefore dismissed they petition. The transcript does not show that the commissioner ever in terms said that he found desertion proved, but it is plain from his interjections during the argument, and from his final statement at the very end of the proceedings, that what was troubling him was whether he ought to exercise his discretion in favour of the wife. I think it is to be inferred in the circumstances that he meant to find desertion proved, as stated in the order as drawn up.
The reasons that the learned commissioner gave for refusing to exercise his discretion in favour of the wife were as follows, and I quote the last statement that he made as recorded in the transcript: it would hardly be right to describe it as a judgment. He said: "I am not satisfied that this marriage had been irretrievably broken down, and I am not satisfied that the petitioner's adultery in a matter of a very few weeks after the respondent had left her did not play a substantial part in the fact that they have never become reconciled. I cannot see any grounds for exercising discretion".
With the greatest possible respect to the learned commissioner, it seems to me that that statement discloses a completely muddled approach to the problem which he had to solve. If he was right in the views which lie expressed, namely, that he was not satisfied of the irretrievable breakdown of the...
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