Holland v Holland
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER |
| Judgment Date | 06 December 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J1206-3 |
| Court | Court of Appeal |
| Date | 06 December 1960 |
[1960] EWCA Civ J1206-3
In The Supreme Court of Judicature
Court of Appeal
(Divorce)
Lord Justice Willmer and
Lokd Justice Upjohn
MR R. F. ORMROD, Q.C. and MR JACKSON LIPKIN (instructed by Messrs Maxwell, Batley & Co.) appeared on behalf of the Appellant, Petitioner below.
MR N. N. JACKINNON, Q. C. and MR T. KEMP HOMER (instructed by Messrs H. E. Thomas & Co.) appeared on behalf of the Respondent wife, Respondent below.
In this case, we have before us two appeals from Orders of Mr Justice Marshall, the Orders being dated respectively the 11th November and 3rd November. The Order of the 11th November, which was the principal Order, was an Order dismissing a summons to strike out a number of paragraphs in a wife's Answer to a husband's petition for divorce. The summons to strike out those paragraphs was brought on the ground that the wife, so it was said, was estopped from raising the matters contained therein by reason of those matters having been determined in previous proceedings. As I understand the argument of Mr Ormrod for the Appellant, he concedes that if his appeal against that Order fails he must also fail on his appeal in relation to the second Order. The second Order, namely, that of the 3rd November, was an Order merely granting leave to amend the wife's Answer.
The matter has a somewhat lengthy history, and I had perhaps best begin at the beginning. The Appellant husband was married to the Respondent wife on the 27th December, 1941. There are two children of the marriage, but no question arises at the present stage in relation to the children. The marriage turned out to be an unhappy one, and on the 5th October, 1955, the wife left the husband. Since that date they have not lived together.
On the 28th November, 1955, the wife instituted a petition for dissolution of the marriage based on allegations of cruelty. In those proceedings the husband by his Answer denied the charge of cruelty, and in his turn cross-prayed for a decree of restitution of conjugal rights. The wife by her Reply to that plea alleged that she had just cause for leaving the husband, and by way of Particulars of just cause she repeated in her Reply the same allegations as had been put forward as Particulars of cruelty in her petition.
Those proceedings came to trial before Mr Commissioner Bush James in 1957, and by his judgment delivered on the 4th March, 1957, he rejected the wife's allegations of cruelty and dismissed her petition. He also rejected the husband's cross-prayer for restitution. Although the trial was a somewhat lengthy one, the learned Commissioner's judgment was relatively brief, and did not go into any detail with regard to the specific allegations that had been made by the wife. It is fair to say that the exact grounds for the learned commissioner's decision may well be regarded as somewhat obscure. He did find that the wire's health had been affected, which is, of course, a matter highly relevant to a charge of cruelty. But he was not satisfied that any impairment to the wife's health was due to the husband's conduct. He could, of course, reject the petitioner's allegations of cruelty on the ground that he did not accept her evidence as to the incidents alleged to have occurred) or he could have come to the same conclusion if he accepted her evidence that the incidents did occur but decided that in the circumstances they did not justify a charge of cruelty. It certainly is not clear by what process he arrived at his conclusion. He did not state in terms whether he accepted or rejected the wife's story.
So far as the cross-prayer was concerned, the learned Commissioner at the inception of his judgment laid stress on the importance of sincerity on the part of the husband. He said in the second sentence of his judgment: "The husband has to convince me that his application for an Order for restitution of conjugal rights is a genuine one". At the end of his judgment, when he came to state his conclusion on the husband's cross-prayer, he said only this: "I am not satisfied by the husband's attempt to get an Order for restitution of conjugal rights. It is an Order which the Court is always most reluctant to make and it is disobeyed in ninety-nine cases out of a hundred, but that is neither here nor there. If I thought I ought to make it, I should make it, but I do not think I ought". That was all he said about the cross-prayer for restitution, and he did not in terms deal with the allegation of just cause which had been put forward by way of Reply on the part of the wife.
The argument before us in support of this appeal has been that, as a matter of necessary inference, the learned Commissioner must have found that there was no just cause for the wife leaving; for, unless he did take that view, the question of the husband's sincerity could not arise and would not be a relevant matter to consider. If it be right that he must be taken to have found there was no just cause for the wife leaving the husband, it would follow that the act of the wife in leaving the husband would be an act of desertion. That was how the matter was left at the end of those proceedings.
Later in the same year, on the 10th July, 1957, the wife took out an Originating Summons for maintenance in pursuance of section 23 of the Matrimonial Causes Act, 1950. In those proceedings she filed an affidavit, and in the course of that affidavit she sought to account for the fact that she was living separate and apart from her husband. Her justification, as put forward in that affidavit, was to repeat practically, if not exactly, word for word the allegations which she had made in support of her petition for cruelty in the earlier case. The issue raised by the Originating Summons came on for trial before Mr Justice Sachs in May, 1958. It became apparent as soon as the case came on for trial that it was important to determine the question whether the wife had just cause for leaving the husband, and, in relation to that question, whether the wife was estopped by reason of the judgment of the learned Commissioner in the earlier case from alleging that she had just cause. In those circumstances, with the agreement of Counsel and by direction of the judge, three issues were formulated for determination as preliminary questions. The third issue formulated does not, I think, matter for the purposes of the proceedings before us today, but the first two are important, and I will read them. The first is whether the Applicant, that is the wife, "is precluded from relying at the trial hereof on the allegations set out in paragraphs 8 to 23 inclusive of her petition filed in this Honourable court on the 28th day of November, 1955, and in the Further and Better Particulars thereof filed in this Honourable Court on the 27th day of March, 1956, as just cause for leaving and / or remaining apart from the Respondent by reason of the rejection of the said charges and dismissal of the said petition by Mr Commissioner Bush James, Q.C. on the 4th day of March, 1957". The second is whether "in rejecting the Respondent's prayer for a decree of for restitution of conjugal rights the learned Commissioner found that the applicant had failed to establish the allegation in her Reply dated the 10th day of September, 1956, that she had just cause for remaining apart from the Respondent".
Those questions were tried as a preliminary cause, and the learned judgment came to a conclusion which was embodied in his Order, and I think it would be best to read the exact terms of the Order in so far as it relates to those two questions:"(1) That the applicant is precluded from relying at the trial hereof on the allegations set out in paragraphs 8 to 23 inclusive of her petition filed in this Honourable Court on the 28th day of November, 1955, and in the Further and Better Particulars thereof filed in this Honourable Court on the 27th day of March, 1956, as just cause for leaving and/or remaining apart from the Respondent by reason of the rejection of the said charges and dismissal of the said petition by Mr Commissioner Bush James, Q.C. on the 4th day of March, 1957. (2) That in rejecting the Respondent's prayer for a decree for restitution of conjugal rights the learned Commissioner found that the Applicant had failed to establish the allegation in her Reply dated the 10th day of September, 1956, that she had just cause for remaining apart from the Respondent, and that the Applicant is precluded at trial from raising any contention to the contrary".
In consequence of that, the wife being precluded in those proceedings from urging just cause, it followed that she had to be regarded as being in desertion, and, therefore, as having no right to receive maintenance from her husband. As a result, the Originating Summons which she had brought was dismissed by consent, but upon terms that the husband provided maintenance for the children. Nothing, I think, turns on the fact that the husband agreed to provide maintenance for the children. There was no appeal from that decision of Mr Justice Sachs, which is a matter very much relied on by Mr Ormrod in support of this appeal.
Matters rested for another two years, and then on the 31st May, 1960, more than three years by that time having elapsed since the wife left the husband, the husband filed the present petition praying for divorce on the ground of the wife's desertion. The wife, by her Answer, has alleged that she had just cause for leaving the husband, and she has also sought by way of cross-prayer a decree in her favour on the ground of constructive desertion. By way of Particulars, alike of just cause and of constructive desertion, she has again in these proceedings put forward precisely the same allegations as she had put forward in the Particulars of cruelty in her original suit.
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Thoday v Thoday
...estopped. That was the ground on which this Court thought it right to strike out the relevant paragraphs of the pleading in the case of Holland v. Holland, (1961) 1 Weekly Law Reports 194. In that case there had been a petition for divorce brought by a wife on the ground of cruelty. The hu......