Herridge v Herridge
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE DANCKWERTS,LORD JUSTICE SALMON |
| Judgment Date | 05 October 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J1005-1 |
| Court | Court of Appeal |
| Date | 05 October 1965 |
[1965] EWCA Civ J1005-1
In The Supreme Court of Judicature
Court of Appeal
Appeal from Order of The President dated 12th February, 1965
Revised
Lord Justice Willmer
Lord Justice Danckwerts and
Lord Justice Salmon
Mr Cyril P. Harvey, Q. C, Mr Barry S. Green and Mr Lionel Swift (instructed by Messrs Collyer-Bristow & Co., Agents for Mr Frank B. Hodges, Chatham) appeared on behalf of the Appellant (Petition r).
Mr N. Campbell Lloyd-Davies (instructed by Messrs Huntley, Son & Rowlands, Agents for Messrs Winch & Winch, Chatham) appeared on behalf of the Respondent.
This is an appeal by a wife against the dismissal by the learned President on the 12th February 1965 of her petition for divorce brought on the ground of cruelty. The President found that there was sufficient proof of conduct such as would justify a finding of cruelty, but he dismissed the petition on the ground of condonation. He found that after the last act of cruelty the wife, having separated herself from her husband, resumed cohabitation for about a month, during which time nothing occurred to Justify a finding that the previously condoned cruelty had been revived.
The wife now appeals to this court, and two points have been argued in support of the appeal. First, it has been allegedthat the wife's resumption of cohabitation did not, in the circumstances of this case, amount to condonation. Secondly, in the alternative, it has been argued that, if there was condonation, there was sufficient evidence to Justify a finding of revival, and that the learned President ought so to have found. On the other side, no respondent's notice has been served, and Mr Lloyd-Davies, who has appeared for the respondent, has made it clear that he cannot challenge the finding of the learned President that the conduct of the husband before the first separation of the spouses was sufficient to amount to cruelty. That being so, I do not find it necessary to refer In detail to all the various allegations contained in the wife's petition; it will, I think, be sufficient to state the earlier history of the marriage In the very barest outline.
The parties were married on the 5th June 1948, and they have three children, born respectively In 1949, 1950 and 1952. They lived together at various addresses in the Chatham area until 1962. On the 12th August of that year the wife left the husband following an incident of violence in the course of which she had sustained some slight injury. By this time, on the learned President's findings, there had been a number of such incidents. There had been incidents of merely unkind conduct, but also some incidents of actual violence on the part of the husband resulting in slight injury to the wife. Had the case stopped there, the President said in terms that he would regard the wife as having made out her case, and he would have found the charge of cruelty proved.
However, after an absence of nearly three months the wife returned to cohabitation with the husband on the 5th November. They continued living together until the 4th December when once again the wife left the husband, this time for good. It was this resumption of cohabitation, continuing for about a month, which the husband says, and the President found, amounted to condonation. That is put in issue by the wife, who in the alternative relies on two incidents said to have occurred during this period of resumed cohabitation which, it has been contended, would in any case be sufficient to revive the condoned cruelty.
Some difficulty in the case has been caused by the fact that none of this was ever pleaded. The husband's answer to the wife's petition consisted of a bare denial of cruelty, and contained no allegation of condonation. It followed that the wife on her part had no occasion to plead that the previously condoned cruelty was revived by the two subsequent incidents on which she relies But little or no objection seems to have been taken at the trial on the part of the wife; there was certainly no application for an adjournment on her part so that the husband's defence could be fully pleaded, and if necessary answered. In those circumstances the learned President, in my view quite rightly, decided that his duty was to proceed with the case on the evidence which was actually given. It was after all (as he reminded himself) his duty under the statute in any case to inquire whether there had been any condonation on the part of the petitioning spouse, and if there were he was, of course, bound to withhold relief.
A further difficulty is caused by the fact that the trial seems to have proceeded from beginning to end without anyone making any reference whatsoever to the Matrimonial Causes Act of 1963; certainly there Is no reference to this Act in the learned President's judgment, and the inference from that (which appears to be in accordance with Mr Lloyd-Davies's recollection) must be that the Act was never in terms called to the President's attention If the Act does apply, then for my part I can feel no doubt but that the provisions of section 2, subsection (l), of the Act must at least be relevant to be considered in relation to the events which occurred in this case
Before dealing with that, however, I think it will be convenient to clear out of the way the wife's alternative contention, namely, that if there was condonation, the evidence was sufficient to show revival of the condoned cruelty. I will say straight away that in my view there is no merit at all in that contention. As I have said, two incidents were relied on in support of that contention The first of them is said to have occurred on or about the 22nd November,when It is said that the husband struck the wife because she had tripped over his shoes whilst he was cleaning them. The learned President considered the evidence of both spouses on that point He said that the wife's evidence was not corroborated. There was no evidence from the doctor who was called of any injury having been received, and in those circumstances the President did not accept that that incident occurred as the wife said. What he said was: "I am not, in view of the caution with which I feel the petitioner's evidence should be approached, satisfied that that episode took place; that she did on that occasion suffer any injury at the hands of her husband, or indeed that he was guilty of the sort of unprovoked serious misconduct which is capable of reviving a condoned offence".
That finding has been attacked by Mr Harvey in presenting his case on appeal, and in particular it is said that the learned President overlooked the fact that, at any rate to some extent, the Wife's evidence was corroborated by that of her mother. But as to that, all that the mother said was that there was an occasion when the eldest child of the marriage came round to her house to fetch her, and that she did in fact go to the matrimonial home, which I gather was close by, where she found the husband shouting. It seems to me that that cannot really be taken as corroboration of the wife's story that she was struck by her husband in the manner alleged; and it remains the fact (as the learned President pointed out) that there is no evidence at all...
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