Lilley v Lilley

The Judgment which I am about to read is the Judgment of the Court.

This is an appeal from a decision of the Divisional Court of the Probate, Divorce and Admiralty Division dismissing an appeal from the learned Stipendiary Magistrate of Kingston-upon-Hull, who had dismissed a summons taken out by the Appellant, the wife of the Respondent, alleging that he had been guilty of wilful neglect to maintain her. The summons now before this Court was issued on the 4th January, 1958, and was determined by the Magistrate on the 26th February, 1958. when he dismissed it on two grounds: (1) that the husband had no legal liability to maintain the wife because he had not been guilty of matrimonial misconduct; (2) that the wife is herself in desertion and therefore not entitled to the Order sought. The Divisional Court affirmed the decision on the first ground while rejecting the second.

The argument for the wife before us has been that if, as the Divisional Court has found, she is not in desertion of her husband, and there is no allegation of adultery against her and no agreement to live apart without the support of her husband, he is obliged to maintain her although she cannot live under his roof and has expressed her fixed intention not to do so. The husband, on the other hand, has argued - and this is his main contention - that the Magistrate was right in holding that the wife was in desertion and that for this reason his obligation to maintain his wife is suspended and he cannot during that suspension be held guilty of wilful neglect to maintain her. In the alternative, he has sought to support, the decision of the Divisional Court that even if she is not in desertion he is not liable to maintain her in the circumstances of this case because he is not guilty of wilful neglect. The Magistrate had had the parties before him on two earlier occasions. First, on the 12th October, 1954, he had made an Order in the wife's favour on her application, on the ground of the husband's desertion, together with an Order for the custody of the child of the marriage. Secondly, on the 23rd August, 1957' on the husband's application, he discharged the 1954 Order and at the same time made an Order under the Guardianship of Infants Acts giving the wife the custody of the child and an Order for the child's maintenance at the rate of 30s.0d. a week. Nevertheless for a time the husband continued voluntarily to pay the wife maintenance for herself as well as the child at the rate of the previous Order; but on the 6th September, 1957, he ceased to pay anything over and above the amount of the 1957 order made in respect of the child, and eventually, the husband having discontinued his voluntary allowance, this summons was issued.

The wife was at the time of the hearing of the summons (in February, 1958) living with her mother and had been earning by part-time work as a secretary £3. 10s. 0d. to £4. 10s. 0d. a week since September or October, 1957. The Magistrate found that she was receiving a salary of £4 10s. 0d. a week at the time of the hearing. No evidence was given as to the husband's means, and it is not clear that an Order for maintenance would in the circumstances existing have been made, for the husband elected to call no evidence and to stand on his submission that whatever his means might be no Order could be made since he was not guilty of the offence with which he was charged. The case has, however, been argued on the footing that the wife is or may be, having regard to the respective means of the parties, entitled to an Order for her maintenance if she can prove that her husband has, in the words of the Summary Jurisdiction Act, 1895, been guilty of wilful neglect to maintain.

The parties were married on October 2nd, 1948, and on the 13th March, 1952, a child was born. The confinement was a difficult one, and thereafter the wife suffered from some mental or nervous disorder either caused or aggravated by the birth of the child. In particular she developed an invincible repugnance to sexual intercourse. She had no sexual intercourse with her husband after February, 1952 - that is, before the birth of the child. On the 2nd October, 1952, her condition was such that she was admitted as a voluntary patient to a mental hospital, the Delapole Hospital at Hull, where Dr. Hendy, who was called as a witness in the case, was the Assistant Psychiatrist and had the wife under his care. She left the hospital in August, 1953, and returned home to her husband, but had to return to hospital on the 15th September, 1953t where she remained, subject to short absences, until June, 1956, when she went to live with her mother and the child. Thereafter she visited the hospital regularly as an outpatient and was seen by Dr. Hendy every two or three weeks.

Between April, 1954, and the week-end of the 24th-25th June, 1954, in an attempt to get herself rehabilitated, the wife went home for week-ends on the footing that she and her husband occupied separate bedrooms and that there would be no sexual intercourse. When the wife left the last time it was expected that she would return, but she did not do so, and in July, 1954f Dr. Hendy told the husband that in his opinion the wife's condition was incurable.

The husband then consulted solicitors, and on their advice wrote a letter dated 2nd August, 1954, to the wife threatening proceedings for divorce, upon which the Magistrate found him to be in desertion and made the Order of the 12th October, 1954 already referred to. The next year there was a meeting between the parties with a view to reconciliation, after which the wife wrote to the husband a letter dated 8th September, 1955, in the following terms: "After seeing you and knowing how things stand between u, I have to say that there is no chance of a reconciliation between us. We are legally separated and under the Court order you are allowed to see Margaret, and I shall not stop you from doing so. You know why this has happened and I ask you not to judge me too harshly. I am sorry to have caused you any unhappiness but remember I have suffered too".

After the wife left hospital in June, 1956, the husband made further efforts at reconciliation in the hope and belief that the wife had recovered, but his letters were not answered. On April 1s t, 1957' the husband wrote to the wife again on the assumption that she had recovered. Her reply, dated 3rd April, 1957, was as follows: "I received your letter yesterday. There was no need to send me a registered letter because I receive all mail sent to me. As regards my mother being unco-operative, that is because I told her not to answer questions asked about me. I object to people wanting to know where and what I am doing. I have ray own life to live and I don't go around asking questions about you. Many are times I have heard you questioning Margaret, would you please refrain from doing it. Margaret is only a child and she does not understand what is going on. You know how I feel about coming back to you. I wrote you and gave you a definite answer when I last saw you at the hospital. My answer is still the same. You know the reasons why. From a medical point of view it is impossible. If you doubt my word you need only ask Dr. Hendy and he will confirm this. Even though I am out of hospital the reasons are still the same and always will be. Please do not bring Margaret into our differences. She is very happy. I am devoted to her and she loves me and her life is a normal, healthy, happy one. If I have to starve she will not want. I am sorry to hear you are not well and hope you will soon recover. Please accept this as a final answer". The husband replied on the 17th April by a letter asking her to reconsider her refusal and making it plain that if she returned she could come back on the same conditions as before, meaning thereby that there would be separate bedrooms and no sexual intercourse.

The wife did not accede to this request, and accordingly the Order of the 12th October, 1954, was discharged on the 23rd August, 1957, on the ground that the husband had ceased to be in desertion. The wife has never appealed against this Order, and when she issued her present complaint conceded and still concedes that the husband is no longer in a state of desertion.

If the wife is in desertion that is the end of the matter; but since both questions to which we have referred have been fully argued it is right to express an opinion on them. The first question depends on the effect of the Summary Jurisdiction Act, 1895, which provides a remedy in the Courts of summary jurisdiction for wives whose husbands have wrongfully failed to maintain them. Formerly a wife had no direct remedy in the Common Law Courts, although she could, if she were able to do so, pledge her husband's credit for the necessaries of life. Since the passing of the Matrimonial Causes Act, 1881|, a wife has been able to obtain periodical payments in cases where her husband has disobeyed orders for restitution of conjugal rights. The existing statutory duty was stated in the Summary Jurisdiction Act, 1895, as follows. By section 4: "Any married woman.…whose husband shall have been guilty of.… wilful neglect to provide reasonable maintenance for her or her infant children whom he is legally liable to maintain...