Pheasant v Pheasant
| Jurisdiction | England & Wales |
| Date | 1972 |
| Year | 1972 |
| Court | Family Division |
Husband and Wife - Divorce - Respondent's behaviour - Husband's petition - Allegation of wife's lack of affection - Whether unreasonable to expect petitioner to live with respondent - Test to be applied -
The parties married in March 1961. In February 1971 the husband left the wife and, in May, he presented a petition for divorce on the ground that the marriage had irretrievably broken down under section 2 (1) (b) of the Divorce Reform Act 1969.F1 He contended that the wife had been unable to give him the spontaneous demonstrative affection which his nature demanded, that he could not be reasonably expected to continue to live with her and that the marriage had irretrievably broken down. The wife denied that the marriage had irretrievably broken down and said that she would welcome his return.
On the question whether the wife had behaved in such a way that the petitioner could not reasonably be expected to live with her:—
Held dismissing the petition, (1) that, since the emphasis in section 2 (1) (b) of the Divorce Reform Act 1969 was on the respondent's behaviour, its reaction on the petitioner could not be looked at in isolation, thereby placing the emphasis on the petitioner's personal idiosyncrasies, and, accordingly, the test to be applied was similar to that formerly used in relation to constructive desertion and was whether it was unreasonable to expect the petitioner to put up with the respondent's behaviour bearing in mind their characters and their difficulties.
(2) That, applying that test, there was nothing in the respondent wife's behaviour which could be regarded as a breach on her part of the obligations of the married state or as effectively contributing to the break-up of the marriage and accordingly, the husband had failed to establish that it was unreasonable to require him to live with the respondent.
Per curiam. Section 1 of the Divorce Reform Act 1969 has to be construed with regard to the provisions of section 3 relating to reconciliation and, since section 3 shows that it is the policy of the legislature to encourage reconciliation, it is sufficient therefore if the petitioner establishes that the breakdown has become irretrievable by the date of the hearing of the petition (post, p. 355B–D).
The following cases are referred to in the judgment:
Ash v. Ash [
Goodrich v. Goodrich [
Lissack v. Lissack [
The following additional cases were cited in argument:
Gollins v. Gollins [
Squire v. Squire [
PETITION
The parties were married in March 1961. In February 1971 the husband left the matrimonial home. In May 1971 the husband presented a petition for divorce on the ground that the marriage had irretrievably broken down on the fact that the wife had behaved in such a way that he could not reasonably be expected to live with her.
The facts are stated in the judgment of Ormrod J.
Colin Trotter for the husband.
A. Uziell-Hamilton for the wife.
December 10. ORMROD J. read the following judgment. In this case, Mr. John Pheasant is petitioning for divorce from his wife, Mrs. Iris Audrey Pheasant. In accordance with section 1 of the Divorce Reform Act 1969, the ground on which the petition is based is that the marriage has irretrievably broken down. But the petitioner is also obliged to comply with section 2 (1) of the Act, which requires him to establish at least one of the five “facts” specified therein. He has set out to prove the “fact” set out in paragraph (b), namely, “that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.” None of the remaining “facts” are applicable in any way to this case. The petitioner was unable to establish, indeed in fairness to him it should be made clear that he did not attempt to establish, anything which could be regarded as a serious criticism of his wife's conduct or behaviour. His case, quite simply, is that she has not been able to give him the spontaneous demonstrative affection which he says that his nature demands and for which he craves. In these circumstances he says that it is impossible for him to live with his wife any longer, that in consequence he cannot reasonably be expected to live with her, and that, therefore, the marriage has irretrievably broken down. Mrs. Pheasant by her answer has put in issue the specific facts (in so far as there are any) alleged in the petition and has said in evidence...
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