Hall v Hall
| Jurisdiction | England & Wales |
| Judgment Date | 30 July 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0730-8 |
| Court | Court of Appeal |
| Date | 30 July 1962 |
[1962] EWCA Civ J0730-8
In The Supreme Court of Judicature
Court of Appeal
Appeal from Divisional Court of
Probate, Divorce and Admiralty Division
Lord Justice
Lord Justice and
Lord Justice Diplock.
Mr Q. C. and Mr TEMPLE (instructed by Messrs Theodore Goddard Co., Agents for Mr Peter Sheard, Lancaster) appeared on behalf of the appellant.
Mr JAMES STIRLING, Q C, Mr G. W GUTHRIE JONES and Mr R. C SUCH (instructed by Messrs Gibson & Weldon, Agents for Messrs Winder & Woodhouse, Lancaster) appeared on behalf of the Respondent.
LORD JUSTICE ORMEROD: This is an appeal from the decision of the Divisional Court of the Probate, Divorce and Admiralty Division consisting of the learned President and Mr Justice Cairns given on the 15th February 1962 reversing the decision of the South Lonsdale and Hornsby Magistrates of the 9th August 1961 that the appellant., in this case the wife, should receive from her husband the sum of per week for maintenance in respect of the husband's desertion and wilful neglect to maintain her.
The parties were married on the 25th June 1939 and lived near Garstang in Lancashire and where the husband was employed on the railway The marriage, according to the findings of the Justices, was unhappy through the husband's drinking habits Not only was he drinking constantly and staying out late at night, but when he cane home, instead of using the side door, which would be left open for him, he would insist on coming in by the front door which meant not only that there was a disturbance in the road outside, but that the hole household was wakened, an the wife or one of the children had to come downstairs to let him in The Justices further found that the wife could not leave her handbag about in case the husband took money out of it for the purpose of drinking There is no evidence that the husband was ever violent towards the wife. There is evidence that certainly on one occasion he was so drunk that he had to be helped to bed. On the 29th April 1961 the wife left her husband after one of his drinking bouts saying that she did not want to go back to him.
On that evidence the magistrates case to the conclusion that there was no cruelty in the legal sense It would appear that the ground for their decision. was that there as no interference or likelihood of interference with the. wife's health. The original summons had been on the ground of the husband persistent cruelty and wilful neglect to maintain his. wife, but at the hearing the solicitor appearing for the wife asked for leave to issue a further summons immediately returnable for hearing alleging desertion on the 29th April 1961, and that application was granted.
The Magistrates after hearing the whole of the evidence, made an order in favour of the wife on the ground of the constructive desertion of the husband and his wilful neglect to maintain her and ordered him to pay £5 per week.
When the matter came before the Divisional Court on an appeal by the husband, there was before the court the Magistrates' reasons for their decision which set out not only the facts as foundby them, but the reasons why they had applied the law to the facts in the way they had. The Divisional Court, however, were of the opinion that although the conduct of the husband was reprehensible, it was not of a grave and weighty nature, and could not, therefore, be regarded as expulsive, that is to say, as conduct which would amount to constructive desertion. At an early stage of the case it was conceded by counsel on both sides that the principles affecting an order based on desertion and one based on wilful neglect to maintain were in this case the same, and for the purpose of this decision we are prepared to accept that.
In his Judgment, the learned President, after a careful consideration of all the various authorities on this question cited to him, said at page 8 of the transcript: "I certainly must not be taken to hold that in no circumstances could drunkenness constitute the factual of constructive desertion. But in the present case it seems to me impossible to hold that the husband must have known that his behavior would cause his wife to leave, so one could reasonably infer from it an intention to expel her. In my view, the misconduct here falls short of the gravity that the law requires in order to amount to constructive desertion', and for that reason he was in favour of allowing the appeal and holding that there was no conduct on the part of the husband amounting to constructive desertion.
Mr Justice Cairns was of the same view At page 16 of the transcript of his Judgment, he says this: "In my view, drunkenness with its ordinary accompaniments of rowdiness and inconvenience to those who have to deal with the drunkard cannot be said to be such conduct that any reasonable man would know that his wife would not stay and put up with him Unfortunately, there are many drunken husbands and many wives who suffer the unhappiness of living with them. Still less can it be said that this husband must have known that his wife would be driven to leave him He was never violent to her; there is no evidence of any disgusting behavior such as vomiting or being unable to control his bladder. Only oncehad he to be helped upstairs, and there is no evidence that on any other occasion or in any other way he wag unable to look after himself Moreover (and to this I attach some importance) there was no evidence that the wife had ever warned him that his conduct was likely to cause her to leave, and she had never left him before in twenty two years of marriage".
It is true that there is no evidence to show with any certainty how long the drunkenness of the husband had been going on. The court has not, of course, a transcript of the evidence taken before the Justices There is the note of the evidence taken by the Clerk This, no doubt, is accurate, but it is bound in the circumstances to be a preAcis of the evidence as it was given and heard by the Justices So it must be that in those circumstances the Justices were in a better position to form a judgment as to what had happened than is an appellate court having before it only a note of the evidence.
There was no evidence that the wife bad ever threatened to leave her husband if he did not mend his ways, and nothing to show that the husband knew or suspected that his habit of drinking more than was good for him was causing distress to his wife to such a degree that she was likely to leave him The Justices have found on the evidence that the marriage was unhappy, and that the husband's drinking habits were the cause of the trouble. It would appear also that there had been no sexual intercourse between the parties for some considerable time before the husband left. Be that as it may, it is clear that the husband was in the habit of coming home drunk, and when he came home of creating a disturbance. It would appear that the trouble did not finish there because the wife's evidence is that after the husband had gone to bed, she had to go down again to make sure that the house was locked up and everything was left safe as certainly on one occasion the husband had gone to bed leaving an unlit gas jet turned on. In these circumstances the question first; before the Magistrates and then before the Divisional Court was whether the husband's conduct was serious enough to justify the wifein leaving him It was contended on behalf of the wife that his conduct went beyond the ordinary strains and stresses of married life, and in consequence she was so justified On behalf of the husband it was contended that, unpleasant as his conduct undoubtedly was, it was such as was unfortunately required to be suffered by wives on. many occasions, and could not be said to be serious enough to cause a wife to leave home.
It is not easy to say where the line should be drawn between conduct which, although blameworthy, is not enough to justify a wife in leaving her husband, and conduct which no spouse can reasonably be expected to endure. There have been a number of authorities dealing with the matter which were examined carefully in the Judgments of the learned President and Mr Justice Cairns. The authorities I have in mind are ( Beer v. Beer 1906 volune 54 Weekly Reporter, page 564), ( Butland v. Butland 1913 volume 29 Times Law Reports, page 729) and ( Timmins v. Timmins 1953 volume 2 All England Law Reports, page 187) where Lord Justice Denning (as he then was) at page 190 said: "It has been repeatedly held by some of the most eminent judges exercising this jurisdiction that conduct which for one reason or another falls short of cruelty may nevertheless afford good cause for leaving and be a defence to a suit for restitution". But the case which appears to be of the greatest assistance is Buchler v. Buchler reported in 1947 Probate Division at page 25. The facts in that case are completely different from this. There was no question of drunkenness. The husband had formed a close friendship with one of his farm workers. The wife objected to this, although the friendship was innocent, and eventually, after a number of unheeded warnings, left her husband because of it. Mr Justice Wellington held that the wife was entitled in the circumstances to leave her husband. The Court of Appeal came to a different conclusion. In the course of his Judgment at page 29, Lord Greene (Master of the Rolls) said this: "Where the desertion alleged is constructive desertion, it is particularly important to see that the circumstances necessary toconstitute that offence are present before the final step of dissolving the marriage is taken by the court. It would, I venture to think, be unfortunate if, under the guise of alleged constructive desertion, a new cause for divorce should imperceptibly creep into our law". Later, at page 30,...
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Gollins v Gollins
...help in estimating whether a spouse is legally entitled to the relief provided by Parliament. See the observations of Danckwerts, L.J. in Hall v. Hall [1962] 3 All E.R. 518 at page 524. It may be that those words influenced the actual decision since, like Danckwerts, L.J. (at page 525), I ......