Jelley v Jelley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE DAVIES,LORD JUSTICE RUSSELL |
| Judgment Date | 03 June 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0603-1 |
| Court | Court of Appeal |
| Date | 03 June 1964 |
[1964] EWCA Civ J0603-1
In The Supreme Court of Judicature
Court of Appeal
Appeal from Order of Mr Commissioner Richards, Q. C., dated 13th December, 1963.
Revised
Lord Justice Willmer,
Lord Justice Davies and
Lord Justice Russell.
Mr K. BRUCE CAMPBELL, Q. C., and Mr SAMUEL LINCOLN (instructed by Messrs Brodie, Miles, Russell & Co.) appeared on behalf of the Appellant (Petitioner).
Mr ANTHONY B. EWBANK (instructed by Messrs Blackett, Gill & Small) appeared on behalf of the Respondent.
I will ask Lord Justice Davies to deliver the first judgment.
This is an appeal from a judgment of His Honour Norman Richards, sitting as a Special Commissioner in Divorce, on the 13th December of last year when he dismissed a wife's petition. This was originally based on the ground of cruelty only, but by an amendment made in the course of the hearing it was based also upon adultery, condoned but subsequently revived. I ought to say that this adultery was in fact pleaded in the petition, but curiously enough not as adultery but as cruelty.
The history of the marriage can be very briefly described. The parties married in 1928 when they were both young,the husband being twenty-five years of age and the wife twenty-two. There were two children of the marriage, both sons, now grown up. After the marriage the parties lived together at various addresses, and the admitted adultery of the husband took place in the years 1946 or 1947 when, for a short period of weeks or months, he went away and lived with another woman. However, he came back to his wife she knew all about it; she forgave him and condoned the adultery.
In later years things were not going well between them, and it is fairly clear from the judgment of the learned Commissioner that he attributed a good deal of the unhappiness in the marriage to the fact (though no medical evidence was called) that the wife was at a difficult stage in the life of a woman. But whatever the reason was, by the end of 1960 the marriage had broken down, and the parties had little or nothing to do with each other though they Continued (and continued, as I understand it, up to the date of the hearing) to live at the same address in a flat in Page Street, Westminster. The wife plainly by the end of 1960 or the beginning of 1961 had made up her mind that she would divorce the husband though in fact she did not file her petition until the 6th February 1962, and as I have said the case was heard in December 1963.
According to the careful judgment of the learned Commission the case fell into two categories. First, there were what he called certain ancillary matters. The principal categories of those ancillary matters alleged by the wife were abuse, filthy language, and so on; and, secondly, constantly coming home drunk, and that sort of conduct. In regard to that the learned Commissioner Pointe out that there was no real corroboration at all, and that if this conduct had been going on in the kind of place where they were living, particularly in later years when one of the sons and his wife were living in the same building though not in the same flat, one would have expected some such corroboration. But, as I say, the Commissioner found that there was no corroboration at all of the ancillary matters. He said in his judgment: "I go further and say that these matters were not, in my view, established at all".
Then on the following page, after discussing the other evidence, he said: "I do not find that they are made out". That is category No. 1.
With regard to category No. 2, consisting of alleged acts of violence, the learned Commissioner made various comments. For example, he said that perhaps the most serious incident the wife alleged was something which took place during the period when the husband was associating with this other woman, and that that, strangely enough, though alleged to be very severe, did not appear in the pleadings at all. The Commissioner commented on the fact that the wife said that she twice had to go to her doctor in consequence of alleged assaults, but no medical evidence was called. There was also an incident later on when she said that she had a cut lip. The Commissioner rejected that allegation entirely.
His conclusion at the end of it all is to be found at page 34 of the transcript. He said: "On the whole, and considering all these matters, I must find here that I am not satisfied that the petitioner has established that her husband has been guilty of cruel conduct which entitles her to a decree. Equally I am not satisfied that he has been guilty of conduct short of the matrimonial offence of cruelty which, in the circumstances of this case and in view of the lapse of time we are considering which has passed since the admitted adultery, would entitle the petitioner to revive that adultery".
Mr Bruce Campbell, who has appeared for the wife on this appeal, in substance makes two interconnected complaints about the judgment. He says, first (as is the fact) that nowhere in the judgment does there appear any reference to allegations made by the wife in respect of one small part (to some extent admitted by a husband) of a threat by the husband to kill the wife, and (more importantly) of a threat or threats or attempt or attempts by the husband to commit suicide. It is perfectly true, as I say, that the Commissioner does not refer to these matters at all in his judgment, and Mr Campbell's point on that is that in his judgment the Commissioner must either have forgotten them or paid no attention to them, and that the...
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