NOTES OF CASES
| Date | 01 October 1948 |
| DOI | http://doi.org/10.1111/j.1468-2230.1948.tb00104.x |
| Published date | 01 October 1948 |
AIATIllhf
ONIAL
CAUSE9
Giiiiics
v.
Grimus,
[lo481
2
All
E.R.
147.
White
v.
White,
[1048]
2
All
E.R.
151.
IT
is hazardous to attempt to prophesy tlie future trend
of
decisions
in matrimonial cnses. In a letter published at p.
70
of
this Review
Mr.
Lntey courageously denied the existence
of
the distinction
bctwccn void and voidnble marriages, only to be contrndicted hy
the
Court
of
Appcnl
in
de
Rcnevillr:
v.
de
12(iitvt41h!,
[I0481
1'.
100,
before his letter had even appeared in print.
In
an article
ut
p.
170,
above, the prcscnt writer ventured on what appcnred
to
LH:
the
comparatively safe statement that, in tlie light
of
Baxter
v.
Umtcr,
[lo481
A.C.
274, there would
be
little chnnce of arguing
successfully
tlint
the practicc of
coitus
i~iterrtcptlw
prcvcnts con-
summation
of
the mnrringe.
No
sooiier lrnd
this
opinion l~en
expressed than the contrary view
was
tnkcn by Finnemorc,
J.,
ill
Crimes
v.
Grimes. This, however. was un undefcndcd case nnd the
next
day
Willmer,
J.,
in
tlic defended case
of
Whitc
v.
White
refused to follow it aiid not only refused
to
gratit a decree
of
nullity, but also adopted the writer's view that a wilful refusal of
intercourse might be cruelty and granted
n
decree
of
divorce on this
ground.
The letter decision seems clearly to be preferred on both points
but obviously they will have to
go
higher.
Squire
v.
Squire,
110481
2
All
E.R.
51.
The
decision
of
the judge
of
first instance in this case
([1047]
2
All
E.R.
$29)
was
severely criticised by
Mr.
Samson at
p.
88
above,
nnti
htippily his opinion
lius
now kcn adoptcd by the Court
of
Apped.
Thc fitcts und argunicnts on the importitiit point raised
rrre
fully canvruscd in the previoiis
note
and
it
is surncierlt
to
say
tlmt
tlic court
hru
now rejected the view tlint malicious intent is
uit
essentiril rlcnicnt of cruelty, and that the gcnmal priilciple
tipplies
ttiut
a
person is presumed to intend the naturnl nnd
probablc c'onscquciiccs
of
his acts nnd may, therefore, be lcgnlly
,guilty of cruelty notwitlistnnding tlint his conduct
was
the con-
stquence
of
illiiess and not
of
mere spite.
Kk'nru
v.
Kara,
[lo481
2
All
E.R.
16.
The main qiicstion for decision in this case
was
the effect
of
section
6
(2)
of
the Matrimonial
Causes
Act,
1087,
which provides that
47
1
472
TIIE
MODERN
LAW REVIEW
VOL.
11
on
a
petition for divorce the court may treat
a
separation
or
main-
tenance order
'as
sumcient proof
of
the adultery, desertion,
or
other ground on which it was granted, but .
. .
shall not pronounce
a
decree of divorce without receiving evidence from the petitioner
'.
The
decision in
Elam'm
v.
Ham'man,
[lM)D]
P.
128,
makes it
clear that the magistrates' decision does not create an estoppel but
it was argued that the effect of
s.
6
(2)
was to compel the court to
follow their decision on the main issue and
to
limit the need for the
petitioner's evidence
to
disproving the absolute and discretionary
bars. The Court of Appeal rejected this argument and held that the
petitioner must give evidence
on
the main issue
also
and that unless
satisfled
on
this
a
decrce must
be
refused, notwithstanding the
5ding of the magistrates. The contrary decision would have been
to
substitute
'
must
accept
as
conclusive
proof
'
for
'
may
accept
as
etcftcient
proof
'.
Feurn
v.
Fmrn,
119481
1
All E.R.
459.
Warnot
v.
Wdmot,
1194.81
2
All
E.R.
128.
These two interesting decisions on condonation illustrate that it
involves something more than forgiveness.
In
the first case the
husband, while serving overseas, learnt of his wife's adultery
and
wrote forgiving her. Later further information reached him and
he then stopped her Army allowances and brought divorce
pro-
ceedings.
The Court
of
Appeal, overruling the trial judge, held
that there
had
beem
no
condonation. The essential element of
condonation was not the conditional forgiveness
or
waiver of the
offence, but either
a
restoration of the erring wife
to
her former
position
or
other conduct calculated seriously
to
prejudice her
position. Here there had been neither; the wife had not been
removed from her position and therefore there could
be
no
question
of her being restored to it,
nor
had she
been
prejudiced in
any
way. There was really nothing more than words of forgiveness
which alone can never constitute condonation. There
the parties had been estranged for many years, and although they
continued
to
live together they rarely spoke and had no marital
intercourse. Eventually the wife confessed
to
adultery, but for
a
further six months they continued to live
as
before. Then the
husband left
and
commenced divorce proceedings. To the wife's
plea
of
condonation, he naturally relied strongly
on
the dictum in
Fearn
v.
Fearn,
that condonation involved re-instatement and that
reinstatement could only take place after displacement. He argued
that the wife had never been displaced
from
the position which
she previously held and consequently had not and could not have
been restored
to
it. Willmer,
J.,
rejected this argument which,
as
he pointed out, would have
had
the startling effect of making
a
delayed forgiveness and restoration condonation but not
an
immediate forgiveness and continuation
of
the existing cohabitation.
This
decision was distinguished in
Wilmot
v.
Wilmot.
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