Lindwall v Lindwall
Jurisdiction | England & Wales |
Judge | LORD JUSTICE WILLMER |
Judgment Date | 02 November 1966 |
Judgment citation (vLex) | [1966] EWCA Civ J1102-1 |
Docket Number | No.2378 of 1994 |
Court | Court of Appeal |
Date | 02 November 1966 |
[1966] EWCA Civ J1102-1
In The Supreme Court of Judicature
Court of Appeal.
Appeal from Order Mrs. Justice Lane Dated 13th May, 1966.
Revised
Lord Justice Willmer,
Lord Justice Halman and
Lord Justice Cairns
Mr FRANK J. CRIDLAN (instructed by Messrs Naurice Bimes & Co.) appeared on bahalf of the Appellant (Raspondant).
Mr ERIC V. FALK (instructed by Messrs Backingaalas & Brashiers) appeared on bahalf of the Respondant (Applicant).
If I say begin at the end, I would say straight away that in my viow both appeal and cross-appaal must be allowed, and the result of that, I think, must necessarily be that this case must be remitted for a fresh hearing.
So far as the appeal is concerned, it appears to me that on the evidence at it stands the learned judge's finding of willful failure to maintain the wife cannot stand. But that is only a provisional view based on the evidence as it stands; it in no way concludes the matters in issue between as it stands; it in no way concludes the matters in issue between the parties, because on the cross-appeal I think that counsel for the wife is justified in his complaint that he was not accorded the right to cross-examine the husband. At the moment it is a matter of speculation how far the situation would have been altered had the husband been subjected to cross-examination. Since this has not been done, the only course for this court to tell is to remit the case for re-trial. In thosecircumstances I will endeavour to be brief, for I naturally do not desire that anything which I may say should prejudice the issues which will have to be determined on the re-trial of the suit. I must, however, state as briefly as I can my reasons for coming to the conclusion that both appeal and cross-appeal should be allowed
So far as the appeal is concerned, it is apparent to me (and I think this is now accepted by counsel on both sides) that the learned judge asked herself the wrong question. Having asked herself the wrong question, she gave an answer which did not in my view determine the issue before her, namely, whether the husband was guilty of wilful neglect to maintain his wife. On the first page of har Judgement the learned judge said "The question I have to determine is whether the wife is entitled to maintenance or whether she has lost her right thereto because she is and has been in desertion". In the course of her Judgement she recited that it was the husband's case that in leaving home and going to Cumberland the wife deserted him; but she came to the conclusion that the wife acted reasonably in the course which she took, and that there was no animus deserendi because she had no intention to remain apart from her husband permanently, even though she did intend to be away from him for an indefinite period. In these circumstances the Judge came to the conclusion that there had been no deesertion, and she therefore answered the question which had been put to her in favour of the wife. I do not blame the learned judge for dealing with the matter in this way. She was dealing with the case as it was put to her. The whole case was argued as if it were neither more nor less than a desertion case. It is fair to say that when the appeal was opened in this court, it was opened on the case basic, and Mr Cridlan said in terms that the husband's case was that the wife deserted him.
With all respect both to the learned judge and to those who argued the case before her that is not the point. In order to defeat a claim based on an allegation of wilful neglect to maintain, a husband does not have to prove that his wife was is desertion, in the sense of having separated herself from him with the intention ofbringing combination permanently to an end. The authorities have established quite clearly that a husband is under no liability to maintain a wife in a separate establishment, even though the wife any have no intention of remaining permanently apart. So long as she remains, and insists on remaining, in a separate establishment without the consent of the husband, than on the authoroities she forfeits her right to be maintained by him.
That general proposition is of course, subject to exception First, if the husband is himself in desertion (that is to say, if ha has expelled the wife or has refused to have her bank with him), then quite clearly ha must maintain bar in a separate establishment No such suggestion has so far been made is this case; maybe it will be made hereafter if and when the husband is cross-examined; I do not know. Secondly, there may be a separation by consent, and it may be a term of the agreement that during the separation the husband shall maintain the wife. Again, no such agreement has so far been suggested in the present case, and thirdly, there are cases where separation is forced on the parties by circumstances. Instances which spring to mind are where the husband is absent on war service, or is away in the course of a long voyage at sea. It has been suggested that something of the sort applies in the present case, in that the wife's a removal of herself to Cumberland was something forced on her by circumstances. But, as the evidence stands at the moment, I am unable to see any circumstances that compelled this wife to remain apart. It appears to me that, whatever view one takes of its wisdom, her behaviour was the result of her own free choice.
Most of the important evidence relating to the question which has to be decided is contained in the vary voluminous correspondence which passed, not only between the parties themselves, but also between their legal advisors. We start with the fact which, I think, is common ground, namely, that having regard to the finanda implications of what had taken place previously, the existing matrimonial home simply had to be sold. It is common ground nowthat, whether they liked it or not, the parties had to be out of the then existing matrimonail home by late August or early September 1963. This event was foreseen for many months in advance. There was lengthy correspondence between the solicitors during the spring and early summer of 1963, in which it is fair to say that the wife's solicitors ware pressing the husband's solicitors for some decision as to what his plans were for accomidating the wife when the matrimonial home was lost; and it certainly appears that the husband's solicitors were inclined to stall and evade giving any direct answer, at any rate for some considerable time. But on the 26th July (page 80 of the solicitors' correspondence) they inform the wife's solicitors that the husband "is trying to fit up an unfurnished flat which will have all the accomodation for the family". Five days later, on the 31st July, the solicitors for the husband write that the husband "Is in negotiation with a landlord, and we cannot approve the lease until we know that your client will live with our client". The writer goes on to say that "in the present circumstances he" (the husband) "is now going ahead with the negotiations, and will enter into a lease ". That is on page 84 of the correspondence, and on the following page, still in the course of the same latter, it is said: "We may say quite definitely that we shall be asking your client to come and live with her husband together with her child". A week later, on the 6th August (page 86), the solicitors for the husband disclose the identity of the flat for which the husband is negotiating, "a flat at Nos.1/5, Fairhasel Gardens, Hampstead, N.W.6". The letter suggests that the wife should telephone the husband, get the key, "and have a look at it". It would appear to be a flat which could provide suitable accommidation for the family". Six days later, on the 18th August (page 87) the solicitors write and say: "We confirm that our client has taken a flat, namely, Flat 1, Fairhasel Gardens, St. Johns Wood, N.W.6, which will afford very pleasant accommodation for his wife and son". The only answer emanating from the wife's solicitors at this stage with regard to this offer of accommodation is that the wife feelsherself unable to vacate her present home". Having regard to the fact, which is now accepted, that the "present home" had to be sold by the end of that month, it does not appear that the wife's attitude in putting forward that view was a vary realistic one.
We can now pass to the personal correspendence between the parties, for on the 20th August the husband personally wrote to the wife what can only be described as an affectionate letter, in the course of which he said: "I have settled on 1, Fairrhasel Gardens, as the flat I propose to take for us, and have given instructions for the lease to be engrossed for my signature. I shall probably have to...
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