NOTES OF CASES
| Date | 01 November 1956 |
| Published date | 01 November 1956 |
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00385.x |
NOTES
OF
CASES
WHO
MAY
BE
DESERTED
FOUR
recent decisions, hinging
on
the reactions of a wife wheb her
husband left her, seem at first sight difficult to reconcile with each
other. Indeed, in the latest of these decisions,’ one member
of
the Court of Appeal said that he had considerable doubt whether
the first two of the cases in question’ were rightly decided. The
other two members of the court thought that the earlier cases
were distinguishable, but might need careful consideration by the
Court of Appeal on a future occasion.
In
Beiban
v.
Began,
the husband had committed adultery which
his wife had condoned, but when he tried to induce her to accept
into their home the child born of the adulterous union, she refused.
The marriage deteriorated, the husband frequently threatened to
leave, entertained groundless suspicions of his wife’s adultery, and
insisted that she should return to the house by
9.80
p.m. One
evening when she was visiting
a
woman friend he caused their
son
to telephone to
con6rm
that she was indeed there.
A
violent
quarrel took place when she returned home, the husband repeated
his threat to leave, and she replied:
‘‘
If
you go now, you do not
come back again.” Nevertheless in the middle of the night he
left the house, threatening that he would strip
it
of all furniture.
When he returned, either the next day
or
a day
or
two later, the
locks
on
the door had been changed and although he gained
entry to the house, the wife refused to have him back. The Court
of Appeal unanimously confirmed the decree nisi granted to her
at first instance
on
the grounds of her husband’s adultery which,
although condoned, had been revived by his subsequent departure.
The decree had also been based
on
the husband’s desertion, and
although this was not confirmed
on
appeal, all the members of the
court affirmed that, if necessary, they would also have been pre-
pared to find the husband guilty of desertion, which had not ceased
to run either because of the wife’s warning that if he went he could
not return,
or
her attempt to exclude him from the house and her
refusal to take him back. The court referred
to
the fact to which
the Report of the Royal Commission
on
Marriage and Divorce
recently drew attention, that in England, unlike Scotland, the
Beigan
v.
Bcigan [l956]
3
W.L.R.
281,
C.A.;
2
All
E.R,
630; [l956]
P.
313.
Since thin
note
wan written there
has
been
a
further decision
by
the
Court
of
Appeal
in
Qibron
v.
Gibron
[l956]
7
C.L.
48
and
The
Times,
July
18, 1956.
Barnett
v.
Barnett
[1955]
P.
21; 2
W.L.R.
229; [l954] 3
All
E.R.
689.
and
Fishburn
v.
Fishburn
[1955]
P.
29;
2
W.L.R.
236;
1
All
E.R.
230.
Birkett
L.J.
[1956]
3
W.L.R.
281,
288,
and Parker
L.J.,
ibid.,
p.
290.
679
*
Denning
L.J.
[1956] 3
W.L.R.
281, 284.
680
THE MODERN
LAW
REVIEW
VOL.
19
deserted party need not prove that throughout the three-year
period of desertion she has been “willing to adhere”
to
her
husband. Denning
L.J.
thought that,
if
a wife locks the door
against her husband,
it
does not automatically terminate his deser-
tion, and added:
“
It
all depends on whether it has any effect
on
the husband by preventing him from seeking a reconciliation.”
This, of course, is on the assumption that the initial act of depar-
ture has been found to constitute desertion, and
not
mere separation
by consent, a point which
it
will be submitted may well have arisen
in at least one of the earlier cases which caused difficulty to the
court.
In reaching their decision, the Court of Appeal approved and
followed a decision of the Divisional Court in
Bevan
v.
Bevaw6
Here the wife, from her earnings of
24
10s.
per week, had handed
her husband
a
total of
EG4
at the rate of
E8
a week for tbe hire-
purchase instalments
on
their furniture. Having diverted the
E64
to his own pleasures, the husband announced that his things were
packed, he was leaving her and the furniture was being returned.
The wife persuaded her father to call at her husband’s place of
work to find out what had happened, and in this and subsequent
interviews the husband offered no explanation of what he had done
with her money
or
why he was leaving her, expressed no regret
for what he had done but inquired
if
she was prepared to buy the
furniture over again. The wife’s reply to the latter inquiry was
that she did not want to see him again and wanted a divorce.
Three months after the initial separation, the husband wrote
(premmably on legal advice) a letter containing protestations
of
affection and of his intentions to replace some of the furniture
for
which the wife had paid, and inviting her to return to him. The
wife did not reply to this letter, and the husband made no further
approach to her, nor did he at any time attempt to secure accom-
modation for them
or
save a penny to repay the money he had
spent
or
to buy new furniture. The Divisional Court held that
the husband was in desertion, had never made a bona fide offer of
reconciliation which the wife was bound to accept, and that the
fact that the wife had told him she did not wish to see him again
had not stopped his desertion from running. In reaching this
decision Collingwood
J.
sought to distinguish this case, where the
wife had merely
said
she did not want her husband back, from the
earlier cases of
Barnett
v.
Barnett
and
Fishburn
v.
Fishburn,
where she had sought to lock him out.
A
few comments may be appropriate at this stage on
neigan
and
Bevan,
before considering the earlier cases.
(1)
In
Beigan,
it
was unnecessary for the husband’s departure
to amount to full legal desertion.
It
is
clear law that a condoned
matrimonial offence may be revived by conduct falling short of a
6
[1956]
1
W.L.R.
1143:
3
All
E.R.
332.
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