Maureen Louise Ruddy (Petitioner) v James Ruddy
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,MR. JUSTICE DOUGLAS BROWN |
| Judgment Date | 20 January 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0120-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 93/1250/F |
| Date | 20 January 1994 |
[1994] EWCA Civ J0120-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBOROUGH COUNTY COURT
(Judge Fox QC)
Before: Lord Justice Glidewell Mr. Justice Douglas Brown
93/1250/F
MR. J O'SULLIVAN (Instructed by Martin Grove, Cleveland, TS6 9EN) appeared on behalf of the Appellant
MR. R GILBERT (Instructed by Crutes, Cleveland TS1 3YS) appeared on behalf of the Respondent
Thursday 20 January 1994
This is an appeal against a decision of his Honour Judge Fox QC who, in Teesside Crown Court on 11 August 1993, made an order of a kind which today is most unusual. Indeed, the matter on which he was engaged was unusual in itself because it was a defended divorce, and the order he made was to dismiss the petition by the Appellant Wife.
The marriage of these parties was on 23 September 1989. They had already lived together for some time. They have a son Jonathan Anthony who was born on 19 December 1987. They lived together, and at the time of the hearing they were both still living, at 21 Monmouth Road, Eston, Middlesborough.
On 12 March 1993 the wife presented her petition alleging that the marriage had broken down irretrievably and the husband had behaved in such a way that she could not reasonably be expected to live with him. Her husband filed an answer. In terms, this pleading admitted that the marriage had broken down irretrievably. That was said at the hearing to be a mistake on the part of the pleader. However the pleading specifically denied that the husband had behaved as alleged.
The facts found by the Judge can be summarized as follows. Although these parties were living under the same roof, they had some time ago ceased to share many of the attributes of a marriage. Some nine months before the hearing the wife had left the matrimonial bed and moved to sleep another bedroom, and there had been no sexual intercourse since that date. She had taken to going out on many evenings of the week with friends, so that on these evenings she and her husband were not in the house together. In general it had become clear that there was little overt affection between them. On the other hand, they were not merely living under the same roof but living together in the sense that they shared meals, they shared the household tasks, they took it in turn to do the cooking, washing-up and cleaning the house. Living on income support, it seemed to be clear that they could not afford to live in different establishments, but nevertheless, while they were under the same roof, they obviously did their best to behave, at least in that respect, in a civilised way by sharing the house and meals. When they shared meals they talked to each other; sometimes they argued. The evidence was they argued a great deal. This was clearly a picture of a very unhappy relationship, perhaps unhappier on the wife's part than the husband's. It may be that he expected less from this marriage than his wife did, but they were still in a situation in which they were under the same roof.
In his judgment, the Judge said that there were two issues he had to decide. Firstly, had the marriage broken down irretrievably? Secondly had the husband behaved in such a way that the wife could not reasonably be expected to continue to live with him? Mr. O'Sullivan, for the wife submits, that dividing the matter into two issues in that way is, as a matter of law, wrong. This is the first important part of his submission. He submits that the only issue for a court to decide is whether one of the matters which is the foundation of a petition on the ground that the marriage has broken down irretrievably as set out in section 1(2) of the Matrimonial Causes Act 1973 is established. If one of those matters, in this case unreasonable conduct, is established, submits Mr. O'Sullivan, then it follows that the marriage has broken down irretrievably as a matter of law. The statute says that a petition for divorce may be presented to the court on the ground that the marriage has broken down irretrievably, and then quoting subsection (2):
"The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts…….."
There then follows the well-known list of five separate sets of circumstance, any one of which will justify the court in holding the marriage to have broken down irretrievably. Undoubtedly the statute says that unless one of those is found to be the case, the court shall not hold the marriage to have broken down irretrievably. What it does not say is that if the court finds one of those sets of facts to be proved the court shall hold the marriage to have broken down irretrievably.
Mr. O'Sullivan supports his submission by reference to a passage in the current edition of Rayden on Divorce, particularly a note to paragraph 12.4 on page 189, which quotes Sir Jocelyn Simon, the President, in a lecture in 1970, as saying that section 1(1):
"is of no real legal significance partly because section 1(2) confines irretrievable breakdown to one or more of the matters set out in the subsection, partly because breakdown is not really a matter that a court can try."
The Learned Judge in this case did try that issue and he concluded that this marriage had not broken down irretrievably, taking into account the facts which I have shortly summarized, rather as if he was dealing with the old concept of constructive desertion.
In my judgment, as a matter of law, the Learned Judge was strictly correct. These are two separate issues, but as a matter of practice it is almost invariably the case that once it is proved that one or other of the sets of facts referred to in section 1(2) is proved, then that of itself does show that the marriage has, as a matter of fact, broken down irretrievably. For my part, I have failed to think of a situation in which, on the hearing of a p[etition for divorce, the court could find that one of the sets of facts was proved and yet the marriage could properly be held not to have broken down. With respect to the Learned Judge who, in an unusual situation obviously devoted a great deal of time and thought to this matter, I believe that what he should have done was to start, as one would normally start, with asking himself the question: do I find that the facts alleged to constitute conduct such that the Petitioner cannot reasonably be expected to live with the Respondent were made out? If the answer to that question was no, (and he did answer that question no) then that really is an end of the matter because there is no need to go on and consider whether the marriage had irretrievably broken down; it had not irretrievably broken down for one of the reasons set out in subsection (2). On the other hand, if the answer to that question is yes, though theoretically the answer might still be that this marriage has not irretrievably broken down, it is difficult to conceive of the circumstances in which that answer would come.
The Judge, dealing with this matter, said:
"It is plainly an unhappy marriage, and it is no function of this court to seek to add fuel to future unhappiness, but I am confined to the law as I believe it to be for the time being, and just as sexual relations are I believe not an essential ingredient to the subsistence of a marriage, so I think happiness is clearly not an essential ingredient, even though it is, of course to be desired."
That is stating the obvious, and is clearly right.
Mr. O'Sullivan then submits that the Judge's approach to what he described as the first issue coloured and falsified his approach to the second issue. Having considered the question "Has this marriage irretrievably broken down?" and concluded that it has not, the Judge said this,
"On the balance of probabilities, therefore, I find that this marriage has not irretrievably broken down. If I am wrong about that —and I think this is a case where I must proceed on the basis that I might be, not that that is to detract from the finding which I have already announced but out of deference to the arguments advanced and the evidence provided by both...
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