Northrop v Northrop
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE WINN,LORD JUSTICE DIPLOCK |
| Judgment Date | 11 May 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0511-5 |
| Date | 11 May 1967 |
| Court | Court of Appeal (Civil Division) |
[1967] EWCA Civ J0511-5
In The Supreme Court of Judicature
Court of Appeal
Civil Division
Appeal from Divisional Court (P. D. & A. Division) 28.10.1966
Revised
Lord Justice Willmer,
Lord Justice Diplock and
Lord Justice Winn
Mr C. TREVOR REEVE, Q. C., and Mr NEIL TAYLOR (instructed by Messrs Vizard, Oldham, Crowther & Cash & Robertson, Martin & Co., Agents for Messrs Wild, Hewitson & Shaw, Cambridge) appeared on behalf of the Appellant.
Mr DOUGLAS G. A. LOWE, Q. C., and Mr BRYAN H. ANNS (instructed by Messrs Jaques & Co., Agents for Messrs Rhodes, Thain & Thomas, Halifax) appeared on behalf of the Respondent.
In this case we had before us an appeal and cross-appeal against a judgment of the Divisional Court of the Probate, Divorce and Admiralty Division, consisting of the learned President and Mr Justice Karminski, given on the 28th October 1966 on cross-appeals brought by husband and wife respectively against an order of the 13th January 1966 made by the justices of the petty sessional division of Brighouse Borough. The proceedings arose out of a complaint by the wife that her husband had deserted her on the 11th February 1964, and had been guilty of wilful neglect to provide reasonable maintenance for herself and the infant child of the marriage. The justices found that the alleged desertion was not proved, but that the husband was guilty of wilful neglect to maintain both the wife and the child.They accordingly made an order that the husband should pay maintenance at the rate of £5 per week in respect of the wife and £2 per week in respect of the child.
Against this order the husband appealed on the grounds (1) that the justices were wrong in law in finding him guilty of wilful neglect to maintain either the wife or the child, and (2) that the wife ought to have been held to be in desertion. There was also a complaint as to the quantum of maintenance ordered, but this has not been proceeded with. The wife appealed on the ground that the justices were wrong in not holding the husband guilty of desertion. The Divisional Court dismissed both parties' charges of desertion, but allowed the husband's appeal to the extent of remitting to the justices for further findings of fact the wife's complaints of wilful neglect to maintain herself and the child.
In this court each party has again contended that the other was in desertion. Both parties also appeal against the order remitting the question of maintenance to the justices for further findings of fact, the husband on the ground that there was no sufficient evidence to justify the finding that he had been guilty of any wilful neglect to maintain either the wife or the child, the wife on the ground that the justices' finding to that effect was right and ought to have been sustained.
The material facts can be briefly stated. The parties were married in September 1944, and after residing for some two years in Cambridge made their home in Halifax. There are two children of the marriage, a son born in 1944, who is now self-supporting, and a daughter born in 1953, who is still at school. There had been previous periods of separation, but the final parting took place on the 11th February 1964. It is common ground that on that occasion, following a quarrel, the wife told the husband to go. The husband took her at her word and left, not without some assistance from the wife, who packed his bag for him, looked up the time of his train, and even gave him money for the journey. The husband went back to Cambridge, where he has lived ever since with his sister. The wifeand the two children have remained in the matrimonial home at Halifax. From the time of the parting until a date well after the first hearing of the wife's summons (which was adjourned by the justices to enable the possibility of a reconciliation to be explored) the husband paid £2 per week for the maintenance of the younger child, but he paid nothing for the maintenance of the wife until an interim order was made against him.
Following the separation the wife on three occasions (on the 24th February, 2nd March and 16th September 1964) wrote to the husband suggesting that he might return to her. In March 1964 both parties instructed solicitors, and a considerable correspondence ensued between the solicitors; in the course of which each party put forward proposals for a reconciliation. The wife's solicitors were inviting the husband to return to the matrimonial home in Halifax, which the husband was unwilling to do. The husband's solicitors suggested that the wife should join the husband in Cambridge, where it was said that the husband was willing to provide accommodation, but this the wife refused to do. In the event, therefore, nothing came of the negotiations, and the parties have remained apart over since February 1964.
The wife's summons, whereby she complained of desertion and of wilful failure to maintain herself and the younger child, came on for hearing in July 1964, when it was adjourned, and an interim order for maintenance was made. The summons was eventually restored and disposed of on the 13th January 1966, when the wife's complaint of desertion was dismissed, but the order complained of was made on the ground of wilful neglect to maintain both wife and child.
It will be convenient to deal first with the issue of desertion, as to which the justices in their Reasons made the following findings: "(2) Our view about the parting on the 11th February was that both parties were in the wrong, the wife in telling the husband to leave and persisting in telling him, and the husband in taking her at her word. We thought that before that the parties were only existing together and that both were satisfied to part, but at the same time there was really nothing between them thatcould not have been put right by a sensible discussion. (3) Both parties made subsequent offers to resume cohabitation, but they were half-hearted on both sides; we did not think they were sufficiently clear for either side to rely on them as establishing desertion; they had ceased to cohabit, and the only definite place where they could resume cohabitation was the matrimonial home".
The Divisional Court interpreted the justices' conclusions as amounting to a finding that the initial separation was consensual, and that the offers made on either side to resume cohabitation, being half-hearted, were not to be regarded as genuine. It has been argued for the husband that, on the admitted facts, the wife, by telling the husband to go, put herself in a state of desertion, and that on the authorities such desertion continued to run against her until such time as she brought it to an end by making a bonafide offer to resume cohabitation. In such circumstances the justices' finding that her subsequent approaches were half-hearted is said to be conclusive against her. There being no substantial issue as to the primary facts, it is contended that this court is free to draw its own inferences, and that the only proper inference to draw is that the wife has throughout been a deserting party.
For the wife, on the other hand, it has been argued that, whatever may have been the character of the original separation, and even if this amounted to an act of desertion on the part of the wife, she subsequently put herself right by her various offers to resume cohabitation. It is contended that, in saying that the offers were half-hearted, the justices are not to be taken as meaning that they were not genuine, otherwise they could and should have said so. In particular, reliance was placed (a) on the wife's letter of the 16th September 1964; (b) on a telephone conversation which the wife said took place about October 1965, when she orally invited the husband to return, but he refused to do so; and (c) on the evidence given by the two parties at the hearing, when the wife expressed a wish for the husband to return to her, whereas he said that he did not want to live with her at all, but that he wasfinished with her. All this, it is said, justified, and indeed required, a finding that the husband had become the deserting party.
In the course of the argument we were referred to several of the well known authorities on desertion. But I confess that I did not find this citation of authority particularly helpful. In this, as in most cases where desertion is alleged, the issue must depend on the particular facts of the case. I agree with the view expressed by the Divisional Court that the questions at issue, the nature of the parting and the bona fides of the subsequent overtures, were essentially matters of fact for the justices, and that there was ample material to support their conclusions. In my judgment the Divisional Court were right in refusing to interfere with those conclusions, and were right also in concluding that they amounted in effect to a finding of consensual separation.
I turn then to consider the question, whether the finding of the justices that the husband was guilty of wilful neglect to maintain both wife and child can be supported on the basis that the separation was consensual, and that there was no desertion on the part of either spouse. Where only husband and wife are concerned it has been repeatedly held that a husband consensually separated from his wife is under no liability to maintain her unless the agreement to separate is found to be subject to an express or implied term that the husband is to provide maintenance for the wife. This was decided by the Divisional Court in Baker v. Baker, 66 Times Law Reports, 81, (a decision twice approved obiter in this court); in Chapman v. Chapman in 1951 (unreported) and in Lilley v. Lilley, (1960) Probate, 158, and followed on frequent occasions by the Divisional Court, notably in Stringer v....
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