MOTIVE AS AN ELEMENT OF CRUELTY IN DIVORCE
| Date | 01 January 1948 |
| Published date | 01 January 1948 |
| DOI | http://doi.org/10.1111/j.1468-2230.1948.tb00076.x |
NO'I'ES
OF
CASES
hfOTlVE
AS
.\N ELEhlENT
OF
CRUELTY IN
IIIVORCE
IT
sometimes happens that, as the machinery of justice circles round
tlie social frnmcwork, a decision of a judge working under the
pressure
of
a great volume
of
litigation flies
off
at
a tangcnt. The
words of sonic other judge may bc misinterpreted
;
some
'
obiter
dicta
'
enunciated
in
a prcvious case without much thought may
be
applied without being tested further
;
some maxim may catch the
imagination and override the better judgment
;
some fallacious
nrgumciit may
bc
accepted whose inconsequence would on second
thoughts become obvious; or an analogy may find appr6vnl which
deeper consideration would show to be irrelevant. These are but
some of the pitfalls into which judges may easily
be
drawn, and
it
is the responsibility of the legal profession to scrutinise every
rcl'orted decision with a view to detecting and enusing
to
be
corrected the resulting uhrration bcfore
it
achieves the position
of
general acceptance.
The recent decision
of
Finnemore,
J.,
in
Squire
v.
Squire
I
seems
to be a case in point. The facts were quite simple. The
wife,
after
vnrious operatioils,
iriid
as a result of illness, suffered coristantly and
sevcrely from insomnin. She required her husband
to
read her to
sleep night by night, and, not liking anyone but her husband
to
attend to her, insisted
on
his dressing her, bathing her, and giving
hcr other persoid attention. Under the strain of these demands
the hiisbunti's health broke down. Finnemore,
J.,
held that, as the
wife's conduct arose from illness,
it
did not amount to cruelty, to
constitute wliich thc conduct must be deliberate, malignant and
intentled. This coiiclusion was reached after consideration of the
recent
C~SCS
of
Astlr
V.
Astle,z
IZortoit
V.
Iforton:'
and
Afliitts
V.
A
tkitls,"
of which the learned judge said
:
'
All thosc cases emphnsise,
as
I
think
1111
the cases bcfore
1087
laid down, the fnct that cruclty
must be deliberate, molignnnt, and intended
'.
If
one consults tlie cases before
1087,
whose effect Finnemore,
J.,
appears to have presumed, one discovers not merely that they were
contrary to the dicta
on
which he relied, but that those dicta were
in fact due to some confusion
of
words,
if
not of thought. There are
two cases directly on the question of tlie relevancy of the motive
beliincl the respondent's cruclty. The first
is
Kirkntm
v.
Kirkmnn
,s
1
[I9471
2
All
E.R.
521).
2
[1939]
P.
416;
[1939]
3
1\11
E.R.
067.
4
[
19421
2
All
E.11.
637.
-5
(1807), 1
Hag.Con.C.
409.
J
rin401
P.
187
;
[1040] 3
AII
E.R.
380.
88
JAN.
l94H
NOTES
01'
CASES
89
where thc wife's jcnlousy
led
to the conimission of nets of cruclty.
It
was argued for hcr that, as she was not actuated by spitc, the
hUSbund was not entitled to
a
dccrec
of
judicial separation. This
argumcnt found little favour with Sir Williain Scott, who poiiitcd
out that
'
jciilousy is
a
passion producing effccts
as
violcnt
as
any
other passion,
aiitl
thcre'
will
be
the siimc ncccssity to provide for
the
safety
and comfort of the indisiduul.
If
thut safety
is
en-
dangercd by violent rind disordcrly affcctions of
the
mind,
it
is the
same
in
its
effcrts
us
if
it
procrcded from mcrc malignity alone; it
cannot
bc
necessary that,
in
order
to
obtain thc protection of thc
Court, it
should
bc made
to
appcnr to procccd from malignity
'.
This decision
WIIS
followctl by
a
similar rcfusnl to
cmtm
into
n
husband rcspontlcnt's motives
in
Ilolrlm
v.
Iloldct,,"
in
which Sir
Willinni Scott's words were evcn inore emphatic
:
'
The court
has
hnd frequent occusion
to
observe that cvcrything is,
in
Icpl
.construction,
suevitin
which tends to bodily harm, and
in
that
manner rcnders colinbitntion unsnfe. Whenever thcre
is
a
tendency
only to bodily mischief,
it
is
a
pcril from which the wife must be
protected.
It
is
not necessary to inquire from what motivc such
treatment procccds
;
it
may be from turbulent passion,
or
sometimcs
from causes which
are
not
inconsistent with affection.
If
bitter
waters
are flowing
it
is
not necessary
to
inquire from what source
they spring.
If
the
pnssions
of
the husbnnd
are
so
much out of his
own control,
as
that it is inconsistent with the pcrsonal safety of the
wife
to
continue in his society,
it
is
immaterial from what provocation
such violence originated
'.
The effect
of
tlicse cases was well summed up by
Lord
Pcnznnce
(then Wilde,
J.O.,)
in
Ilnll
v.
ZZall
:
'
With danger to the wife in
vjcw, the court does not hold its hand to inquire into motives and
cuuscs. The sources
of
the husband's conduct arc, for thc most
purt,
immaterial
'.
If
a
more recent opinion
be
sought,
it
is to be
found in Lord Simon's judgment in
Waft
(or
Thomas)
v.
Thorn
'
:
'
Neithcr can the husband's right to
a
decree for cruelty
be
denied
on the ground of the wife's pathologicul condition which was
producing increased nervous irritability
'.
There are many other cases whic!i seem relevant to the present
discussion. Conduct due to intemperance,
or
to
delirium tremens
brought about by intemperance, has been held cr~elty.~
A
'
prima
facie' case
of
cruelty is
made
out by proof of communication of
vencrcal disease.lo The court
lws
grantcd relief where the shock
of
thc commission and conviction
of
a
serious crime of one spouse
6
(1810),
1
Hog.Coi1.C.
453.
7
(1864),
3
S.
6G
T.
347
nt
349.
*
While
.v.
While
(1850),
1
S.
&
T.
591;
Marsh
v.
Marsh
(1858),
1
S.
&
T.
312.
8
[1417]
1
All
E.It.
682
at
586.
10
Browning
v:Browwig,
[1911
J
P,.
1.61.
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