Myers v Myers
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE O'CONNOR,MR. JUSTICE STEPHEN BROWN |
| Judgment Date | 04 December 1981 |
| Neutral Citation | [1981] EWCA Civ J1204-4 |
| Docket Number | 81/0530 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 December 1981 |
[1981] EWCA Civ J1204-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE AMERSHAM COUNTY COURT
(His Honour Judge Peck)
Royal Courts of Justice
The President
(Sir John Arnold)
Lord Justice O'connor
and
Mr. Justice Stephen Brown
81/0530
81 0 1780
MR. TIMOTHY D. STRAKER (instructed by Messrs Richardson Smith & Head, solicitors, Chesham) appeared on behalf of the Respondent (Applicant).
MR. MARTIN J. POINTER (instructed by Messrs Geoffrey Wicks & Co., solicitors, Chesham) appeared on behalf of the Appellant (Respondent).
This is an appeal from an order of His Honour Judge Peck on 12th November 1981 sitting in the Amersham County Court. It was an application by the wife under the Domestic Violence and Matrimonial Proceedings Act 1976 whereby she asked for the exclusion of her husband from the matrimonial home which was a council house at Chesham.
The learned judge recognised, as indeed anybody must recognise when they look at the case, that it was a very borderline matter, but that circumstance by itself could not justify any interference with an exercise of discretion if that discretion is exercised by a proper method. It is really to that matter that the appeal is directed.
The learned judge excluded the husband from the house, subject to giving him permission to return thereto during weekday evenings, when the wife was doing her part-time job, to look after the child of the marriage, a little girl called Naomi who is two years old. The foundation of the learned judge's order was substantially that these two young people could not live together in the same premises, at any rate for the time being, because the wife had come to a conclusion that she would not do so; the court drawing the conclusion, as the learned judge said, that she really did mean that and it was not merely a passing whim. The wife said that she had reached that conclusion because she was scared.
When one looks at the history of the marriage, which had in fact endured for about two years although there had been a similar period of cohabitation previously, one finds that the basis of her fear was not very large, looking at it in the terms of her own evidence. She says that he had a tendency to violent outbursts (which I take to be verbal abuse) even prior to the marriage; over the last few months matters have deteriorated; she says he is continuing to drink very heavily and to take drugs (he says that is cannabis); that he goes out drinking twice a week, mainly at week-ends, and when he returns home after his drinking sessions he very easily loses his temper and then becomes violent: except insofar as it is later particularised, there are no details about that. Then she says that he constantly abuses her, and indeed in a measure that is agreed by the husband. She says he is jealous and makes accusations of infidelity against her and related threats and that this is distressing to her and the marriage.
Then there are three specific allegations of violence. The first one which took place a fortnight before they were married was something which arose in the course of an argument in the street. The learned judge, rightly in my view, discounts that because it is so very shortly before the marriage.
Then there was an occasion a few months later, sometime in 1979 apparently, when the husband tipped the wife out of bed but no-one seems to have attached very much importance to that.
Then there was a substantial and most unhappy occasion of physical violence on 16th October 1981. There had been some disagreement between the parties at a dance to which they had gone, the husband resenting what he regarded as "flighty behaviour" on the part of his wife, and in particular in one instance an impermissible approach by some man with whom she was dancing towards her. But the immediate occasion of the violence was that, when they got home, both of them being sensible of the desire for a reconciliation after the upsets of the evening, they went to bed and started to make love. At this time she was having some difficulty in this context of her marriage and at some late stage, so it is said by the husband, in the course of that contact she wished to terminate it and did so, much to the annoyance and frustration of the husband who gave her a "thumping", as it is called. That the learned judge, in the face of a disputed piece of evidence, believed. The wife maintained before the learned judge, and here he did not believe her, that the marriage was all over. To quote the learned judge: "She said consistently in the witness-box that the marriage was at an end and that she cannot go back. I am not satisfied that is what in fact the future does hold."...
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