Pizey v Pizey and Stephenson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD,LORD JUSTICE WILLMER |
| Judgment Date | 11 May 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0511-2 |
| Court | Court of Appeal |
| Date | 11 May 1961 |
[1961] EWCA Civ J0511-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod
Lord Justice Willmer and
Lord Justice Dacnkwerts
Mr K. BRUCE CAMPBELL (instructed by Mr Matthew Morris) appeared on behalf of the Appellant (Petitioner husband).
Mr N.R. BLAKER (instructed by Messrs Edwin Coe & Calder Woods, Agents for Messrs Pardoe, David & Shaw, Bridgwater) appeared on behalf of the Respondent wife.
Mr H.S. LAW (instructed by Messrs Victor Mishoon & Co.) appeared on behalf of the Co-respondent.
: I will ask Lord Justice Willmer to deliver the first Judgment.
This is an appeal from a Judgment of Mr Justice Stevenson given on the 14th November, 1960, whereby he dismissed a husband's petition for divorce founded on allegations of adultery and desertion. There was no cross-prayer for relief by the wife. The learned Judge found the charge of adultery proved against the wife, and indeed she did not in the course of her evidence deny the charge that had been made. So far as the Co-respondent was concerned, although the learned Judge found adultery proved as against the wife, he found that it was not proved as against the Co-respondent. He therefore dismissed the Co-respondent from the suit; and, although we have had the pleasure of seeing Mr Law here to-day, there has in fact been no appeal so far as the Co-respondent is concerned.
As to the charge of desertion, this was dismissed by the learned Judge, who found that the original separation between the parties, which took place in the summer of 1954, was a consensual separation and that it continued so throughout. He further found - and, indeed, there has been no controversy about this - that the adultery proved against the wife was subsequently condoned by acts of sexual intercourse which took place between the parties. On the learned Judge's findings, nothing subsequently occurred to revive it, and accordingly this charge also failed. I should add that, by an amendment, leave for which was granted at the trial, the husband asked for the discretion of the Court to be exercised in his favour, he having admitted that he himself had committed adultery at a date subsequent to the filing of the petition. The learned Judge never had occasion to deal with that matter, because, as I have said, in the event he dismissed the petition on the grounds which I have stated.
The relevant history of the matter is as follows. The marriage took place as long ago as 1932, and there were four children, two of whom at any rate are now grown-up. On the findings of the learned Judge, it was never a particularly happy marriage. There were intermittent quarrels between the parties, and there is some evidence that at one time the husband actually left the wife for a period of about three months. The parties continued living together until the war, when the wife was evacuated to Somerset, which was her own home County and where her own mother lived. Cohabitation between the parties was resumed shortly after the war.
I think I can now come straight to the events of the summer of 1954. Some time in August, husband and wife were having an argument, in the course of which the wife suddenly and quite spontaneously confessed that she had committed adultery with a brother of the husband on an occasion quite shortly after the end of the war and a good many years previously - some time about the end of 1945 or thereabouts. It happened that at the time when the wife made this confession, the Co-respondent (the husband's brother) was staying in the house. So the husband immediately took the opportunity of taxing the Co-respondent with what his wife had told him. He said that the Co-respondent admitted that he had committed adultery with the wife. The Co-respondent, however, denied that he ever made any such admission, and he has further denied that he ever committed adultery with the wife. It was in those circumstances, there being no other evidence of adultery apart from the wife's confession, that the learned Judge found that adultery was not proved against the Co-respondent. As against the wife, however, he accepted the husband's evidence that she had made this confession of adultery, giving due and proper weight to the fact that the wife had not elected to give evidence denying the charge.
Following her confession of adultery, the wife said that she could not stay any longer with the husband, and proceeded to make arrangements to go away to Somerset, taking the children with her, to live with her mother. In fact, she left about a fortnight later. It is, I think, common ground that during that fortnight, although the spouses continued to live under the same roof, they were living very much at arms' length. The husband made no secret of the fact that he did not object to the wife's going. In fact, he seems to have been glad that she went. He said in evidence (Day 1, page 7): "Well, I was rather glad at the time because things had been strained for a long long time, and maybe that was a welcome opening for me". So the wife went off to Somerset and the husband continued living in London.
Thereafter, the parties corresponded fairly regularly. A good many letters have been preserved and put before the Court. Some of the earlier letters on either side appear to be rather bitter letters, hut later on they became much more friendly. There is no doubt that, beginning some time in 1955, husband made a number of visits to Somerset, when he went down to stay with the wife and the children for week-ends. In this improved state of the relations between the parties, there was some suggestion, at some time during 1955, that the husband might get a house in Ipswich for the wife and children to live in, Ipswich being chosen on the ground that that was where the married daughter of the parties lived. I think it should be made clear, however, that it was not contemplated that the husband should himself go and live with the wife and children at Ipswich; for his work kept him in London. The attraction of Ipswich, as I understand it, was that it was rather nearer than Somerset, and the husband would have been able to be a fairly frequent visitor to see his wife and family. Nothing, however, came of this, and the project for setting up a house in Ipswich fell through. The week-end visits to Somerset, however, continued; and at some time it is admitted that the parties slept together and had sexual intercourse. There was an issue between the parties as to how often that occurred. The husband said only twice, but the wife said on a number of occasions.
In the summer of 1955 the wife was in a poor state of mental health. In fact, it appears that she had been showing signs of mental instability before the parting actually took place. The result was that in September 1955 she was admitted to a mental hospital In Somerset, where she was a patient for about ten days. Correspondence between the parties which took place while she was actually in the mental hospital has been preserved; and the upshot of it was that immediately she came out of hospital, in the early days of October 1955, the husband paid her a more prolonged visit, in the course of which he stayed for about five days. It is both sides' case that during this particular visit sexual intercourse between the parties undoubtedly took place.
The next event in time, so far as one can follow the time sequence from the evidence, was that early in 1956 the wife obtained an offer of a house at Highbridge, in Somerset, from the local housing authority. The husband got to hear of that, and wrote a letter to the Housing Officer, a copy of which appears at page 37 of the bundle of correspondence. It seems to me to be rather an important letter, in that it throws some light on the husband's then state of mind. The letter is dated the 18th January 1956 and reads as follows: "Dear Sir, I understand my wife has applied for a house in Highbridge. In fairness to you, I feel you should be fully conversant with my wife's position. Firstly, I believe she is being ill advised by someone against her better Judgment. Secondly, there is a great possibility of divorce proceedings against my wife in the future, in which case I would be fully justified in claiming my furniture and custody of my two children. Incidentally, I have already made plane to house my family up here in London, I understand your desire to help and I do appreciate it very much". Then there is a postscript about responsibility for the wife's actions and debts, which is not very material. So far as the evidence goes, at that date -namely, January 1956 - there were in fact no plane for housing the family in London; nor at that date, so far as the evidence goes, were any divorce proceedings in prospect, although, as I have said, the reference to that possibility by the husband throws a certain amount of light upon his then state of mind.
Some time about this period or shortly afterwards — that is to say, some time in 1956, although no actual date has been specified — the husband says that he wrote to his wife enquiring whether she would be prepared to come and live' in Battersea. Battersea was selected because the eldest son of the marriage, who lived in London, was about to get married; he desired to live in London, and I gather from the husband's evidence that what was in contemplation was the possibility that he and his wife might resume cohabitation in London, sharing a house with the eldest son. The husband says that the wife replied to his letter, saying that she certainly was not going to come back to London, adding something about "all that smog and fog". The wife in her evidence denied that she ever received any letter inviting her to live with the husband in Battersea, but she said that if she had received such...
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