Harvey v Harvey
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE HODSON |
| Judgment Date | 17 November 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J1117-3 |
| Court | Court of Appeal |
| Date | 17 November 1955 |
[1955] EWCA Civ J1117-3
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Denning
Lord Justice Hodson and
Lord Justice Morris
Mr. F. ELVYN JONSS. Q.C. and Mr JOHN K. WOOD (instructed by Messrs Rhys Roberts & Co., Agents for. Messrs Leo Abse & Cohen, Cardiff) appeared on behalf of the appellant Wife.
Mr J.T MALONEY. Q.C. and Mr. A.S. MYERSON (instructed by Messrs rentooree & Son, Agents for Messrs Morgan Lloyd & Evans, Cardiff) appeared on behalf of the Respondent Husband
I will ask Lord Justice /odson to give the first judgment.
This is an appeal by leave by a wife from an order of the Divisional court dated the 12th May, 1955. The Divisional Court consisted of lord "" and Mr Justice Davies, and by their Order they allowed un appeal from the Magistrates sitting at Cardiff on the 3Oth March, 1955, and remitted the case for re-hearing, setting aside the existing Order, which was an Order for maintenance made in favour of the wife on the grounds of desertion.
The case did not to take quite a usual course, and caused some difficulty to the "" and also to the Divisional Court who heard the appeal. The situation was this, that the parties had been Married for a great many years (they married in 1928) and at the material time one of the sons of the carriage, who had been parted from his wife, had living in the matrimonial home with his parents two of his children. He bad three children: one of thee was in, Home, and the two young children were living in the house That had come about in this way, that after the son's wife had left him his children had been sent to a Home. The son's father, the grandfather of the children, was upset at this, and got the children to his house with their father, his wife's son, and made a home for them there.
Now, the son's conduct in the house was bad, and it was shown that it was hostile to his mother. Indeed, that hostility was exemplified at the hearing before the Magistrates by the evidence which the son gave, and the Magistrates rejected altogether the son's evidence. It was in their province no to do, and it is not surprising that they did rejecthis evidence, which was of an extravagant nature and exceedingly hostile to his mother.
Now, the wife's case was that on the 15th November she
before the Magistrates, because the husband's Solicitors had refused to agree to the course which was suggested and took the stand that the wife, by leaving the husband, was herself in desertion. She magistrates took the course which one would have expected thee as sensible persons to take, namely, to see if some arrangement could be made whereby the cause Of friction might be removed, and when the matter came before them on the first occasion an undertaking was given by the son to go, and indeed he did go. on the 21st December the Summons was adjourned on an undertaking by the son to leave and on the part of the wife to return to look after the two grand-children, and on an undertaking by the husband to see that she had money.
I should refer to the wife's evidence as it was given on the 21st December, She said: "Each time I asked Defendant to get son out of house he said I was trying to put out lay own flesh and blood", and she concluded her evidence-in-chief by sayings "I am willing to live with Defendant if son is not there". In cross-examination she was asked further questions about the matter, in particular about the son, and in describing the past life she had lived with her husband she used this languages "Defendant has been indifferent and callous to me for years. He is too placid. He would get me in a temper by ignoring me. I thought he had no use for me"
In that situation there was a further adjournment of the Summons, but finally, on the 27th February 1955, she did return to the home on the undertaking given, which had then been carried out so far as the question of the removal of the son was concerned. She only stayed four days, and early in march she left again. On the 30th march, there was a further hearing before the Justices, because she restored the summons, and the Justices found that the desertion had beenproved. It was the that finding that the husband appealed, because the effect of the finding against him was that he had deserted his wife on the 15th November and that desertion had continued thereafter notwithstanding the events which had happened, and that there had never been any break in that desertion.
The Divisional Court dealt first with the question of the original parting, and I think assigned in the wife's favour that which the Magistrates had found, namely, that by acting as he did in refusing to get rid of his son the husband had driven his wife away and put a barrier against her return so long as the son was there, o far as that alleged desertion was concerned it was argued that it had been terminated because the son had left the house, the wife's case having always been "If the son goes I will come back", and she had gone back. So it was said that desertion was terminated.
There has been a good deal of discussion about the various ways in which desertion could be terminated, and a good deal of attention was given to termination by resumption of cohabitation, but that is not the only way in which desertion can be terminated. AS this Court pointed out in Perry v. Perry, reported in 1952 Probate at page 232 - I am reading from part of ay own Judgment - "Accordingly, in ay opinion, as I ventured to suggest in Lane v. Lane, when considering a current period of desertion, the primary question is: Aye or No, 'is it terminated? - not 'is it condoned?' It can be terminated by a resumption of cohabitation involving a mutual or, as it has been called, a bilateral act, or it can be terminated by the deserter returning, or even offering to return, provided the offer is not one which for some reason the offeree is entitled to refuse, but it is not necessarily terminated as a matter of law by the sexual act". In this case,is my view, the desertion, which was constructive desertion, was terminated when the basis of that constructive desertion had been removed by agreement. For my part, I do not think that it is necessary to consider whether there had been in this case a resumption of cohabitation in the full sense of the word or reconciliation. what happened here was that the husband had first of all refused to get rid of his son and the wife said "I will not live nits you unless you do", and when he got rid of the son the position was that by agreement that desertion was terminated.
Of course, that is not an end of the case. It may well be, the desertion having been charged from the 13th November, the appeal should have been allowed, and. that point was taken by Mr Maloney, but there is no cross-appeal here. and the Divisional Court having ordered that the original Summons should be sent for further consideration to other Magistrates, this Court should not, I think, interfere with that part of the Order, especially as, in considering the present position which is open to the wife it is relevant to go back...
To continue reading
Request your trial