King v King
| Jurisdiction | England & Wales |
| Judge | Lord Normand,Lord Oaksey,Lord Reid,Lord Asquith of Bishopstone |
| Judgment Date | 31 July 1952 |
| Judgment citation (vLex) | [1952] UKHL J0731-2 |
| Date | 31 July 1952 |
| Court | House of Lords |
[1952] UKHL J0731-2
Earl Jowitt
Lord Normand
Lord Oaksey
Lord Reid
Lord Asquith of Bishopstone
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause King against King, that the Committee had heard Counsel, as well on Tuesday the 17th, as on Wednesday the 18th, Thursday the 19th, Monday the 23d, Tuesday the 24th and Wednesday the 25th, days of June last, upon the Petition and Appeal of Godfrey Howard King, of Dobells. Heath Road, Boughton, Monchelsea, near Maidstone, Kent, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 25th of October 1951, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King in His Court of Parliament, might seem meet; as also upon the printed Case of Elizabeth Rosa King, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of His late Majesty's Court of Appeal, of the 25th day of October 1951, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondent the Costs incurred by her in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
I am asked by my noble and learned friend, Lord Jowitt, to say that he agrees with the Opinion I am about to deliver.
My Lords,
After this Opinion had been written I had the advantage of reading the Opinion of my noble and learned friend, Lord Reid. I agree with it, and I would have said no more but for the differences of judicial opinion which the case has occasioned.
The cruelty charged against Mrs. King in this action of divorce is that she constantly nagged at her husband by complaints of his adultery or of his light conduct towards women and that by her nagging she injured his health. Two acts of violence by the wife were proved, one committed about a month and the other about a fortnight before the husband finally left his wife. Barnard, J. regarded these acts as not in themselves serious but rather as symptomatic of the pass to which the marriage had come and of the state of mind of the parties. With this view I agree, and the case put forward is substantially one of cruelty by nagging.
Barnard, J. found that the wife was a most unsatisfactory witness, and that she prevaricated, gave untruthful answers, and lost her temper with counsel. The written record of her evidence shows that she was on several occasions reproved for evading a question which she had in fact answered, and we were told that this was explained by her failure to make herself heard. But after reading the whole of her evidence I am satisfied that there is even in the written record abundant justification for the finding of the trial judge. He found that the husband was a reliable witness and accepted his testimony when it conflicted with the wife's. The result is that the husband's narrative, with his explanations and qualifications and admissions made by him in cross-examination, must be taken as a substantially accurate account of the events which led to the break-up of the marriage, and that the only ground on which the judgment of the trial judge can be sucessfully attacked is that he misdirected himself. That that was the position was recognized by the Court of Appeal, and the majority, Denning and Hodson, LL.JJ. found that there had been misdirection. Somervell, L.J. on the other hand, thought that there had been no misdirection.
Barnard, J. leaves no doubt about the principle which guided him in deciding whether, on the facts proved by the husband, the charge of cruelty was made out. Before he began his consideration of the evidence he said that the best guide for this class of case was a passage in the judgment of Bucknill, J., as he then was, in Horton v. Horton [1940] P. 187. The passage, which he cites, is as follows:
"Mere conduct which causes injury to health is not enough. A man takes the woman for his wife for better, for worse. If he marries a wife whose character develops in such a way as to make it impossible for him to live happily with her, I do not think he establishes cruelty merely because he finds life with her is impossible. He must prove that she has committed wilful and unjustifiable acts inflicting pain and misery upon him and causing him injury to health".
Barnard, J. makes the comment that the last sentence is the vital part of the citation. In Horton's case nagging, taking the form of accusations about the husband's associations with women, was one of the grounds of the action and it is to a case of nagging that the passage cited refers. There was no doubt that the nagging had been the cause of the husband's ill health and that it had inflicted pain and misery on him. But it had also been found that the wife's conduct towards her husband was malicious, and that the husband had throughout the consortium behaved as a good husband should. There was no disturbing element except the wife's conduct and no circumstances to be considered in relation to the accusations made by her except their falsity and the absence of any probable cause for them. That is the usual sense of the word "unjustifiable" and it is the sense in which the word was used by Bucknill, J. in Horton's case. It is used in the same sense by Barnard, J. in his judgment in the present case. I think that he applied the test of "wilful and unjustifiable", though there are passages in his judgment, where he is dealing with particular incidents, which lend colour to the criticism that he considered only whether the charges were false. The conclusion of his judgment is, however, the clear finding that the wife's conduct was wilful and unjustifiable.
I have no doubt that the test whether the conduct was wilful and unjustifiable, as well as injurious, was an adequate test for what remained to be decided in Horton's case. What is open to question is whether it can be taken to be an adequate test in all cases of cruelty by nagging accusations. I think it is not always an adequate test, and that Bucknill, J. did not put it forward as a universal and exhaustive test in this type of case. The general rule in all questions of cruelty is that the whole matrimonial relations must be considered, and that rule is of special value, when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. Wilful accusations may be made which are not true and for which there are no probable grounds and yet they may not amount to cruelty. To take an obvious example, they may have been provoked by the cruel conduct of the other spouse. There is in many cases no easy rule, no clear line of demarcation which divides cruelty from something which does not amount to cruelty. The issue may become one of great difficulty in which the decision must be largely a matter of the discretion of the judge who saw and heard the witnesses and who has considered the conduct of both parties, and the whole circumstances in relation to the temperament and character of the respondent spouse. If the trial judge in the exercise of this discretion comes to the conclusion that the conduct of the respondent is, notwithstanding the provocation received or the difficulties and stresses endured, really an inexcusable offence against the other spouse, his judgment should be respected and treated as conclusive. I have used the word "inexcusable", but "unpardonable" or "unforgivable" or "grossly excessive" would equally convey what I mean. In Usmar v. Usmar [1949] P. 1, Willmer, J., in a case where each spouse charged the other with cruelty, said that the wife's persistence in nagging her husband went far beyond what was forgivable under the circumstances. Willmer, J. said elsewhere in the same judgment that he must, before coming to a conclusion, consider the impact of the personality and conduct of one spouse upon the mind of the other; and he weighed all the incidents and quarrels between them from that point of view. In my opinion, that is the proper approach to the issue and the method which ought to be followed. But it was not followed by the trial judge in the present case. It therefore becomes necessary to enquire whether, on the whole facts and in all the circumstances, the husband has proved that his wife was guilty of injurious, wilful and inexcusable conduct towards him.
There is much in the history of the marriage which is very relevant to the question whether the false accusations made by the wife were, in the whole circumstances, inexcusable. The wife was a Swiss and she was a Roman Catholic. She married into a Protestant family in England. The husband could only afford to pay her £2 10s. 0d. a week for food, and life was hard and domestic management difficult. The husband's business needed his close attention and he felt obliged to work late at his shop instead of spending his evenings at home. He was much attached to his mother, and, unfortunately, she had no affection for her daughter-in-law. The wife was certainly of a jealous disposition and she seems to have been deeply in love with her husband, on whose society she was specially dependent because she was a foreigner among strangers. I do not think that her jealousy was morbid or abnormal, but it was an unhappy trait in her character that if something excited her...
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