Maureen Ann Wilkinson (Petitioner) George Albert Wilkinson (Respondent)

JurisdictionEngland & Wales
JudgeLORD JUSTICE WILLMER,LORD JUSTICE DIPLOCK,LORD JUSTICE WIDGERY
Judgment Date18 July 1968
Judgment citation (vLex)[1968] EWCA Civ J0718-4
CourtCourt of Appeal (Civil Division)
Docket Number1967. (D). No. 55.
Date18 July 1968

[1968] EWCA Civ J0718-4

In The Supreme Court of Judicature

Court of Appeal

Civil Division

Appeal from Faulks J. Birmingham Assizes 18th March, 1968

Revised

Before:

Lord Justice Willmer

Lord Justice Diplock and

Lord Justice Widgery

1967. (D). No. 55.
Between:
Maureen Ann Wilkinson
Petitioner
and
George Albert Wilkinson
Respondent

Mr ALAN B. TAYLOR (Instructed by Messrs Gibson & Weldon, Agents for Messrs Hand, Morgan & Owen, Stafford) appeared on, behalf of the Appellant (Respondent).

Mr BRUCE CAMPBELL, Q.C., and Mr HILARY G.A. GOSLING (instructed by Messrs;' Pickering & Pickering, Stafford) appeared on behalf of the Respondent (Petitioner).

LORD JUSTICE WILLMER
1

We need not trouble you, Mr Campbell. This is an appeal from a judgment given by Mr Justice Faulks at Birmingham Assizes on the 18th March 1968 whereby he granted a decree nisi of divorce to a wife on the ground of cruelty on the part of the husband. The husband denied the allegation of cruelty, but he did not cross–pray for any relief in his own favour. The issue therefore, was simply whether the wife proved that the husband had been guilty of cruelty.

2

The cruelty alleged consisted of general neglect and lack of care for the wife petitioner, and as the principal manifestation of that neglect or lack of care for her it was complained that the husband never really made any serious attempt to have normal sexual intercourse with her, or to give her the opportunity, which she much desired, of bearing a child.

3

Both the parties concerned are young people. They were married on the 11th March 1961 at a time when the husband was thirty–one and the wife was twenty–two. They lived together until Easter of 1966 when the wife said that she could stand it no longer and left the husband. There has been no cohabitation since.

4

So far as the general allegation of neglect is concerned, it appears to be the fact that the husband had a great many outside interests. He was interested in a number of charities, which involved him in numerous committee meetings, but more particularly he was by profession a photographer, and he found a good many opportunities, both at weekends and at night, for exercising his art and earning extra money. There is no doubt that those activities kept him away from home a good deal.

5

It is fair to observe that the learned Judge in his judgment described that as "the wear and tear of matrimonial life". He went on to say that: "If that alone were the cause" (meaning the cause of the breakdown of the marriage) "I would not think of granting a degree on the ground of cruelty". I certainly would not seek to interfere with that assessment on the part of the learned judge, who after all had the advantage of hearing the wife's evidence. At the same time I think it is to be remembered that the more serious allegation, based on the sexual life of the parties, has to be viewed in the context of the general neglect which has been alleged. I do not think that it is possible to divide a case like this into watertight compartments; married life must be looked at as a whole.

6

With regard to what I may describe as the failure of the parties' sexual life, the wife accepted that upon marriage she agreed with her husband that for two years or so they would not attempt to have a child. Both of the parties were working, but it was contemplated that after two years they would have been able to settle down, and that it would be appropriate to start rearing a family. The wife, however, says that from the outset the husband seemed to show little interest in normal sexual intercourse. Intercourse did take place two or three times during the honeymoon.After that she complained, to use her own phrase, "he never did it properly". He had the habit of satisfying himself by rubbing himself against her body until he had an emission, and only after that would he make some very limited attempt to penetrate her. The inevitable result was that her emotions were aroused, but were not satisfied.

7

I think it useful to refer to some half-dozen or so passages in the wife's evidence, and I do so because the judge plainly accepted it in preference to the evidence of the husband. At page 3 of the transcript she said: "It was never satisfactory because my husband never did it properly". Then she proceeded to describe what I have just myself described, after which she was asked the question: "Used he to achieve some sort of penetration after the emission?". She answered; "Yes, sort of, but not as it should have been". On the next page she was asked; "Since the honeymoon have you ever had full sexual intercourse before your husband had an emission?", and she answered; "No. I cannot remember, anyway". Then on page 7, after she bad been asked about the husband's work as a photographer, the learned judge interposed to ask; "Is that the prime' complaint or the complaint about no babies?", to which she answered: "The complaint is about no babies, my Lord, and no marital side of marriage, but this came up because of so much interest in other subjects".

8

Then on page 14 of the transcript in the course of cross examination she was asked: ...

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