Kathleen Clarke (Petitioner) Raymond Clarke (Respondent) Pamela Clarke (Intervener) Albert Fellingham (Party cited)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE DAVIES,LORD JUSTICE SACHS |
| Judgment Date | 05 October 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J1005-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 October 1967 |
| Docket Number | No. 11363 of 1963. |
[1967] EWCA Civ J1005-3
In The Supreme Court of Judicature
Court of Appeal
Civil Division.
Appeal from Brandon J. 11th October, 1966.
Revised
Lord Justice Willmer,
Lord Justice Davies and
Lord Justice Sachs.
Mr MORDECAI LEVENE (instructed by Messrs Polden, Bishop & Gale) appeared on behalf of the Appellant (Respondent).
Mr DEREK J. HYAMSON (instructed by Messrs Edgley, Harding & Philips) appeared on behalf of the Respondents (Petitioner and Party cited).
We need not trouble you, Mr Hyamson.
This is an appeal from a judgment given by Mr Justice Brandon on the 11th October 1966 whereby, in the exercise of is discretion, he granted to a wife a decree of divorce on the ground of adultery which he found proved against the husband.
By her petition the wife all eged that the husband was guilty of adultery with the woman named during a period between 1960 and 1962. On that ground she prayed for a divorce, but the petition contained no prayer for the exercise of discretion. By his answer as originally filed, the husband denied the charge of adultery. He made a cross — charge of adultery against the wife, all eging that she had beencarrying on an adulterous association with the party cited from about 1960 onwards. His answer also contained a charge of cruelty against the wife. On these grounds he cross-prayed for divorce himself. Again in his case there was no prayer for the exerciss of discretion in his favour. The wife by her reply denied the charge of adultery brought against her, but pleaded in the alternative that, if she had committed adultery, there was connivance or conduct conducing on the part of the husband. She also denied the charge of cruelty. There was also a reply by the party cited denying the charge of adultery against him.
The petition was presented in December 1963. proceedings seem to have dragged on rather slowly, and in October 1965 Apparently because the husband no longer wished to pursue his prayer for divorce against the wife an order was made by Mr Registrar Kinsley, the terms of which are set out in the learned judge's judgment. The order provided, first, that the proceedings arising from the'prayer for dissolution of the marriage contained in the respondent's answer be stayed; that the petitioner be at liberty to proceed on the prayer in the petition; that the replies on the part of the husband and the party cited be struck out, and that the party cited be dismissed from the suit. It appeared, however, when the matter came to trial in October 1966 that there had been some misapprehension aa to the husband's Intentions. What emerged at the trial was that the husband, while abandoning his charge of cruelty, still wished to rely on the charge of adultery against the wife, not as a ground for relief, but only as a defence to the wife's charge against him. That having been ascertained, the learned judge made an order restoring the party cited as a party to the suit, and gave leave to the wife to restore her reply, or at least so much of it as dealt with the charge of adultery against her.
At the trial evidence was given by the wife, by the party cited and by a clerk in the office of the solicitors representing the wife. At the conclusion of the case for the wife a submission was made on behalf of the woman named, who had intervened in the suit,that there was no evidence against her; that submission was upheld by the judge, and the intervener was dismissed from the suit. A submission was also made on behalf of the husband that there was no evidence against him. The learned judge, in accordance with normal practice, put counsel for the husband to his election, and Mr Levene elected to stand on his submission. It followed accordingly that no evidence was given by the husband, and no evidence was called on his behalf. The matter, therefore, fell to be decided on the evidence called on behalf of the wife.
The case was rendered to some extent difficult by the fact that the learned judge was unable to accept the wife as a wholly truthful witness. In particular he did not accept her evidence as truthful in so far as she was denying the charge of adultery made against her. But in so far as she gave evidence of facts to support the inference of adultery on the part of the husband, her evidence was accepted as substantially truthful. In those circumstances the learned judge found the charge of adultery against the husband proved. He also found that there had been an adulterous association between the wife and the party cited. He accordingly at that stage granted leave to the wife to amend her petition so as to pray for the discretion of the court to be exercised in her favour having regard to the adultery which had been found against her.
The learned judge, I think, clearly found considerable difficulty with regard to the exercise of discretion, which he considered most carefully; but in the end he decided to exercise his discretion in favour of the wife, and accordingly granted her a decree
The husband now appeals to this court, and his appeal has been put forward on two grounds. First, it is said that there was no evidence (or at any rate no sufficient evidence) to justify the finding of adultery against the husband. Secondly, it is said that even assuming that adultery was rightly found against the husband, the judge misdirected himself in exercising his discretion In the way in which he did. It has been submitted that in all the circumstances this is a case in which no relief should have been granted to the wife.
The husband says that he is, and always has been, desirous of are conciliation with his wife. The learned judge, however, who heard the evidence at considerable length and heard the vigorous cross-examination to which the wife was subjected, came to the conclusion, and the very clear conclusion, that there was no possible chance of are conciliation in this case.
I do not think that it is necessary to go through the facts of the case in great detail. The parties married on the 2nd January 1954 at a time when the husband was twenty-eight years of age and the wife twenty. There are two children of the marriage, one born in 1955 and the other born in 1959. The evidence showed that the parties were reasonably happy till about 1960. By that time the party cited had come on to the scene. He is an older man, now I understand in his fifties, and had been a friend of the family from about 1957. The matrimonial home was at various addresses in Enfield or Edmonton during the period up to 1960. But early in that year the parties went to live with the wife's mother, who was the licensee of a public-house in Islington. It was during that period that the events started which have led to these proceedings. In about September of 1960 the wife and the party cited (who had already commenced going out together occasionally) were caught by the husband in the act of kissing. That led to a considerable quarrel between the parties; but it was patched up, and shortly afterwards, later in the same month, the parties went away in company with the party cited for a holiday. There was a further quarrel during the holiday, and shortly after the return of the parties from their holiday in October 1960 the husband left the wife. He came back again and the parties resumed cohabitation, but in January 1961 he again left. The learned judge found (and there was abudant evidence to support it) that the husband left because of the association between the wife and the party cited. Thereafter both husband and wife instructed solicitors, and shortly afterwards the wife commenced proceedings in the magistrates' court. She was asking for maintenance for herself on the ground of desertion, and she was asking also for an order forcustody in respect of the children under the Guardianship of Infants Acts. Those proceedings never came to trial beoause the solicitors acting for the parties succeeded in effecting some sort of reconciliation between the parties. I use that phrase advisedly because, as will appear in a moment, it was not in fact a true reconciliation. However, it did lead to the parties acquiring a new home of their own at No. 36 Belmont Avenue, Edmonton, where they set up house together about March 1961. They continued living together there until after the trial of the suit. We are informed that they continued living there until about two months ago, when the wife finally left. But, as I have already indicated, it is clear that no true reconciliation was arrived at between the parties. They did not resume cohabitation as man and wife; they occupied separate rooms; they quarrelled a good deal, and after a while they started to lead completely separate lives. We have the situation, therefore (which is not altogether uncommon) of two parties who, although narrled and living under the same roof, conduct completely separate establishments. The wife was continuing to associate with the party cited, but both she and the party cited denied throughout that they ever committed adultery.
It was not very long before the husband started an association with the woman named, the Intervener in the suit. The wife said that he was very often out late, sometimes staying out all night. But about the end of 1962 it is accepted that the husband gave up his association with the intervener. The wife, on the other hand, continued to associate with the party cited and, as I understand the position, is continuing to do so even today. Both she and the party cited said in evidence that, if they were free, they would like to marry.
The finding of adultery against the husband was based wholly on inferences to be drawn from facts proved in evidence by the wife. I do not want to go into...
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