P. v P
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE PHILLIMORE,LORD JUSTICE KARMINSKI |
| Judgment Date | 15 December 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J1215-1 |
| Date | 15 December 1970 |
| Court | Court of Appeal (Civil Division) |
[1970] EWCA Civ J1215-1
Lord Justice Davies,
Lord Justice Phillimore and
Lord Justice Karminski
In The Supreme Court of Judicature
Court of Appeal.
On appeal from Order of Mr. Justice Cairns.
Mr. JOHN SAMUELS (instructed by Messrs J.W. Craddock & Co., Rochester) appeared on behalf of the Appellant Wife.
Sir ARTHUR IRVINE. Q.C. and Mr. KENNETH WILLCOCK appeared on behalf of the Queen's Proctor.
The Husband Petitioner was not represented.
This is the first appearance in this Court of the problem which has arisen in a number of cases as to the effect of Section 2 of the Matrimonial Proceedings (Children) Act, 1958, under which this case falls to be decided, and Section 33 of the Matrimonial Causes Act, 1965, which is in substantially similar terms. I will return to those sections later on. It is an appeal from a judgment of Mr. Justice Cairns given on the 27th June, 1969, whereby he rescinded a decree absolute which had been obtained by the husband petitioner as long ago as the 10th June, 1963, on the ground that the provisions of the section to which I have just referred in the 1958 Act had not been complied with.
The parties were married in December, 1958. In October, 1959, a girl was born to the parties, and in the following year the wife committed adultery with the Co-Respondent in the suit, who was called James. She lived apart from her husband for a time. In September, 1961, the parties became reconciled and resumed cohabitation, so that, of course, the wife's adultery was condoned. But a year later, in October 1962, the wife deserted the husband and so revived the previous adultery, the Matrimonial Causes Act 1963, which provides that condoned adultery cannot be revived, not having by then been passed.
At the date of her desertion, she was four months pregnant, and her husband admittedly knew this. In January, 1963, he petitioned in the Gloucester District Registry for a dissolution of marriage on the ground of the 1960 adultery. On the 8th March, 1963, he obtained a decree nisi from Judge Elder-Jones, who expressed his satisfaction with the arrangements as to the little girl who had been born in 1959. He made an Order for custody in favour of the husband, but gave care and control to the wife. In a matter of a few weeks after that, namely on the 28th March, 1963, her pregnancy to which I have referred resulted in the birth of a son, andapparently the husband knew of this, was informed of this. There is some dispute as to whether or not he informed his solicitors. Their recollection is that he did not, but he and the wife think that he did. However, on the 10th June the decree nisi which had been obtained in March was made absolute. Some time about then — and we have not been given a precise date — the husband had intercourse with another woman; and, curiously enough, subsequently for a period of some seven months, after the decree absolute had purported to have been granted, he resumed cohabitation with his then former wife (the present Appellant).
In April, 1966, the little girl was returned to the husband by arrangement. On the 20th August of that year the wife married a man named Weller, by whom she has had no issue. In September, 1968, there was a dispute between the parties with regard to the little girl. The husband brought the matter before the Court, and it came before Mr. Justice Cairns in December, 1968. The question was as to the custody of this little girl Andrea who, of course, had then been with her father for a couple of years or so. The learned Judge ordered a welfare officer's report, and in that report and in affidavits that were filed by the parties the existence of the little boy Geoffrey, who had been born shortly after the decree nisi, was brought to the notice of the Court for the first time. The learned Judge directed a summons to be issued as to the validity of the decree absolute in the light of two decisions, to which I will refer in a moment, by Mr. Justice Scarman.
The matter was heard before Mr. Justice Cairns on the 24th June. The wife apparently was not represented. Her solicitors, who were still on the record, were not notified of the hearing; and the Queen's Proctor was represented as amicus. On the 27th June, the learned Judge, as I have said, gave judgment, having (it would appear) been told that the wife did not wish to appear, though in fact she had sent a telegram tothe Court on that very day, saying that she was not able to attend and had no solicitor to represent her. The Judge, we were told — and I think probably correctly -, gave his judgment on the basis that the wife was not interested in the matter, which she clearly was, as, of course, the marriage which she had contracted on the 20th August, 1966, with Mr. Weller would be a bigamous and invalid marriage if the decree absolute were bad in law.
Some time elapsed after the decision of Mr. Justice Cairns. But eventually, in July of this year, this Court granted to the wife — I call her "the wife" for convenience — leave to appeal out of time against Mr. Justice Cairns's decision. We have had the advantage yesterday and to-day of argument from Mr. Samuels for the wife and from Sir Arthur Irvine for the Queen's Proctor. He had in an earlier case, to which I shall refer, also, as Solicitor-General, appeared on behalf of the Queen's Proctor.
The two sections are in substance in these terms. The 1958 Act provides, by Section 2: "Subject to the provisions of this section, in any proceedings for divorce… where the High Court has, by virtue of section 26(1) of the Matrimonial Causes Act, 1950, jurisdiction in relation to any child, the court shall not make absolute any decree for divorce… unless and until the court is satisfied as respects every such child who has not attained the age of 16 years — (a) that arrangements have been made for the care and upbringing of the child and that those arrangements are satisfactory or are the best which can be devised in the circumstances, or (b) that it is impracticable for the party or parties appearing before the court to make any such arrangements". That, as I say, is the section which governs this case. But it is convenient to refer to the parallel provision in the Matrimonial Causes Act, 1965, Section 33, which provides: "subject to the following subsection, the court shall not make absolute a decree ofdivorce… in any proceedings begun after December 31st, 1958 … unless it is satisfied as respects every relevant child who is under 16 that — (a) arrangements for his care and upbringing have been made and are satisfactory or are the best that can be devised in the circumstances; or (b) it is impracticable for the party or parties appearing before the court to make any such arrangements". There is no question at all, of course, but that the section does apply to the little boy Geoffrey who was born shortly after the decree nisi.
The history of the judicial decision on this point is this. A similar case came before Mr. Justice Scarman in 1961. It is reported as B. -v- B. in 1961 1 Weekly Law Reports, 856. What happened there was that by an oversight the learned Judge who granted the decree nisi of divorce made no order under the 1958 Act, and when the matter came before Mr. Justice Scarman — and I do not propose to read any of his judgment; indeed, I propose to read very little of any of the authorities — he came to the conclusion that the provision in Section 2 of the 1958 Act was a mandatory provision and that, as the Judge had (as I say, by oversight) failed to express his satisfaction as to the arrangements, the decree absolute was void and a nullity.
That was followed three years later by another decision of the same Judge, reported as N. -v- N. in 108 Solicitors Journal, page 99. A similar problem arose there. The learned Judge, in a short judgment, adhered t. his previous decision and held there too that, the satisfaction as to the arrangements not having been properly certified, the decree absolute was a nullity. Those decisions — and this fact had some weight with Mr. Justice Cairns in his judgment in the present case — stood for eight years and five years respectively.
The matter came before the Court next in the present case which, as I have said, was heard by Mr. Justice Cairns in June of last year. There is no doubt at all that the learned Judge did not like these decisions of Mr. Justice Scarman. Hesaid in effect that, but for those two decisions, he would have decided the case in the other sense, and he only followed them with the greatest hesitation.
I will read one passage from his judgment, as reported in 1970 Probate. The report begins at page 161, and I read a passage from the top of page 170. He was treating both Acts as in substance similar, as indeed they are, and he was referring only to the 1965 Act, as opposed to the 1958 Act: "The Act of 1965 does not say in terms that a decree absolute made in disregard of section 33 is void, and I find it difficult to suppose that Parliament intended it to have such an effect. The grave disadvantages of holding a decree absolute to be void, it may be years after it has been made, and where one spouse or both may have remarried and may have had children by their new marriages, are obvious. On the other hand, the avoidance of the decree absolute can seldom be of any benefit to a...
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