Ogden v Ogden
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE PHILLIMORE,LORD JUSTICE WINN |
| Judgment Date | 04 July 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0704-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 July 1969 |
[1969] EWCA Civ J0704-3
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On appeal from Order of Divorce Divisional Court.
Lord Justice Davies
Lord Justice Winn and
Lord Justice Phillimore
Mr R.B. HOLROYD PEARCE, Q.C. and Mr M. KENNEDY (instructed by Messrs A.F. & R.W. Tweedie, Agents for Messrs Titley, Long & Co., Bath) appeared on behalf of the Appellant (Husband).
Mr PETER THOMAS, Q.C. and Mr A.R. TYRRELL (instructed by Messrs Peake & Co., Agents for Messrs W.A. Sparrow & Son, Bath) appeared on behalf of the Respondent (Wife).
I will ask Lord Justice Phillimore to give the first Judgment.
This is an appeal by a husband from a decision of the Divorce Divisional Court. On the 28th June of last year, the President and Mr Justice Baker gave Judgment dismissing the appeal of the husband against the decision of the Bath Justices which they had delivered on the 8th January of last year. The Justices had had before them summonses by the wife charging this husband with persistent cruelty, firstly to his wife and secondly to his children; also with constructive desertion and with wilful neglect to maintain.
Having heard this case on no less than three separate days - the 18th December 1967 and the 1st and 8th January 1968 - they dismissed the wife's charges of cruelty, but found the husband guilty of constructive desertion and wilful neglect to maintain.
On the appeal to the Divisional Court, in effect three issues were raised on behalf of the husband; firstly: Was it open to the Justices on the evidence to find this husband guilty of misconduct which had caused the wife to leave the matrimonial home; in other words, to find constructive desertion? Secondly, having dismissed the charges of cruelty in this case, where injury to health had been urged as having resulted from the husband's conduct, could the Justices find that the case of cruelty could be redressed and held to constitute constructive desertion? Thirdly, the husband having written her a letter urging her to return after she had left the matrimonial home and she having described that offer as genuine but having nevertheless dismissed it out of hand, could she be heard to say that thereafter he remained the deserting party?
The issue as to wilful neglect was not argued before the Divisional Court or this Court and Counsel are agreedthat the finding on this should follow that on the main issues.
Before the Justices, the wife gave evidence; two of the children - a girl Linda, aged about 19, and Sandra, 15 - gave evidence; a doctor, Dr Dougall, and a friend of the wife, Mrs Capetti. On behalf of the husband, he alone gave evidence.
The background to the case, as it emerged from the evidence, was as follows: These two people married as long ago as the 7th December, 1946, in Italy. He was then serving in the Royal Air Force. The wife, who was five years younger, was of course a Roman Catholic. They had three children: Linda, who was born in 1947; Sandra, on the 7th June 1953, and Annette, born on the 22nd October 1962. They came to England soon after the War, and lived first at Rochdale and thereafter in a flat in the Paragon at Bath.
The wife's case was that this husband throughout the marriage had been very unkind and had nagged her and there had been endless arguments and rows; in particular, he had attacked Roman Catholicism and Roman Catholics, and had made offensive remarks about Italians, and further had suggested from time to time that she was carrying on with other men. In the result, according to her, she had been reduced to a highly nervous state in 1959 and again in 1962; and, furthermore, he had renewed this conduct to a very serious extent in the Autumn of 1967.
Dr Dougall was called, who attended her up to 1962. He did confirm seeing her once in May of 1959, when he prescribed some tranquillizers. He saw her again in February, 1962, when, after sending her to a psychiatrist, electro convulsive therapy was prescribed and administered. He did, however, indicate when he was cross-examined that the trouble in 1962 was really due to her discovery that she was once again pregnant, that being with the child Annetteborn in October. He said that she did not desire another child and she became suicidally-minded as a result. The wife denied the suggestion that she had ever been minded to commit suicide at that time. The position was that, according to her, all her troubles back in 1959 and 1962 were due to her husband's unkindness. As indicated, the doctor's evidence, so far as 1962 was concerned, was to the contrary.
Whatever were the rights and wrongs in 1959 and 1962, the wife conceded that the husband really did not bother her after that time with offensive remarks about Roman Catholicism or Soman Catholics. She also said that the marriage then settled down; and indeed the evidence was that from the Spring of 1962 until the Spring of 1967 she had no trouble with her health. This evidence was in contrast to that of the daughters called to corroborate her, who said, for example, that throughout the latter period, or at any rate throughout the period as they could recollect it, he was still making rude remarks about Roman Catholics and Roman Catholicism and so on.
Two letters were put in on behalf of the husband, written by the wife in 1964 when she was on holiday in Italy. They are extremely happy letters; and, in my judgment, show a wife who was at that time content with her husband and her marriage. They form powerful evidence in support of what was really the wife's evidence, that between 1962 and 1967 there was not much wrong with this marriage.
In 1967 trouble began once more. In April, the wife gave up working for a Mr and Mrs Capetti, and about the same time had an operation for haemorrhoids, with the result that she had to sleep for a time on a board and so left the matrimonial bed, and thereafter refused to return to share it, saying that the bedroom was damp. About this time, having recovered from her operation, she took employment at an Italian restaurant in Bath run by a Mr Franco.
Matters came to a head in August. By then, as the wife admits, Mr Franco had been twice to the flat in the Paragon without the knowledge of the husband, and in August she asked if she could accompany him to London to act as his interpreter in an interview that he was to have with an American with a view to some remunerative employment. According to the wife, the husband agreed to her going. Apparently she did not introduce him to her husband either before they left or on their return. There is no doubt that in the result the husband was seriously disturbed. There appears to be some doubt on the evidence as to whether in fact he ever agreed to this trip to London. Her complaint was that after this visit to London, he started accusing her of carrying on or having an affair with Mr Franco and persisted in these accusations. This is really the linch-pin of the wife's whole case, because it is this conduct which it is said revived her memories of his behaviour in and before 1962 and Justified her in leaving the matrimonial home. There is no dispute that soon after the 16th August he begged her to give up her job with Mr Franco, or that she refused to do so and said at once that she had made up her mind to leave him.
Although there were various scenes thereafter, at which Dr Dougall or his partner Dr Murison, who had in fact been her doctor from the Spring of 1962, were sent for, there is no real case for saying that the wife's health was affected by what happened at this time. She frankly confessed to the Justices that from the end of August or early September she had made up her mind irrevocably that she was going to leave her husband. Apparently, after searching for a fortnight, she found a flat in Pulteney Street on the 23rd September, and then or soon after signed a lease for a year. Meanwhile, there were scenes in the matrimonial home. The husband had suggested that he himself should leave andstay away for two...
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