Masarati v Masarati
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DANCKWERTS,LORD JUSTICE SACHS,LORD JUSTICE FENTON ATKINSON |
| Judgment Date | 07 February 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0207-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 February 1969 |
[1969] EWCA Civ J0207-3
In The Supreme Court of Judicature
Court of Appeal
(On appeal from Order of His Honour Judge Dewar, sitting in the Probate, Divorce & Admiralty Division, dated 29th April, 1968).
Lord Justice Danckwerts
Lord Justice Sachs and
Lord Justice Fenton Atkinson.
MR P. NORRIS (instructed by Messrs. D. Miles Griffiths, Piercy & Co.) appeared for the appellant.
This is an appeal from an order of His Honour Judge Dewar made on 29th April, 1968, in which he refused to grant a decree of divorce to the petitioner in this case. There is no doubt about the adultery of the husband, which apparently was habitual and continuous, but though the petitioner made a very frank discretion statement the judge refused to exercise his discretion in favour of the appellant, the petitioner, and consequently he refused a decree.
The parties were married in 1959, and the husband appears to have been a man without any matrimonial or sexual morals at all. He stated to the petitioner that he did not think that he was bound to be faithful, and at one period he said that she was inexperienced and immature, and described her as "lousy in bed". He, however, went off and committed adultery with an unmarried lady by whom he has had two children. But according to him at any rate, he discontinued that association and made a fresh adulterous association with another woman.
The petitioner herself has committed adultery. She committed adultery with her employer for a considerable time; but we are informed that that association has now been broken off and it appears to have been broken off in December.
It seems to me that the judge in his judgment, which was quite a short one, overlooked some important considerations and laid too much stress upon one consideration which seems to have affected him very much - that although the unmarried lady with the children would want to marry the husband, he did not want to marry her, and that the man with whom the petitioner has committed adultery was a married man, so that it would not be possible for her to marry him. It seems to me that too much weight was attached to that and not enough to the principle which is mentioned in Blunt v. Blunt, that it is undesirable to keep parties in a state where they are compelled to adopt a life of continuous adultery.
In this case it seems to me that there is a great dealto suggest that the fact that the petitioner committed adultery was largely due to her treatment from her husband and his insistence on committing adultery. In my view, the learned judge did not give enough weight to that consideration, and also to the fact that the petitioner's daughter was living with her. It seems to me undesirable that her mother should be tied for ever to an adulterous husband. For these reasons, I would allow the appeal and grant a decree.
The matter of discretion as regards the granting of decrees of divorce is one of the more difficult matters that have to be dealt with by the courts from decade to decade. In principle the factors to be considered may remain constant, but the weight to be given to the individual factors may vary greatly as time goes on, for the courts must take care not to sever themselves from that general climate of opinion that is hard to define but is nonetheless important. To this point I will...
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Dowling v Dowling et Al
...cases decided in British Courts on the eve of the passage of their Divorce Act, 1969 (see, for example, the judgment of Sachs, L.J. in Masrati v. Masrati [1969] 2 All E.R. 658, particularly at pages 660-661). Nevertheless, I have come to the conclusion that this is one of those cases in whi......