Porter v Porter
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DANCKWERTS,LORD JUSTICE SACHS,LORD JUSTICE FENTON ATKINSON |
| Judgment Date | 05 February 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0205-4 |
| Date | 05 February 1969 |
| Court | Court of Appeal (Civil Division) |
[1969] EWCA Civ J0205-4
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Danckwerts
Lord Justice Sachs and
Lord Justice Fenton Atkinson
MR. L. LAIT, instructed by Messrs. Vizards, agents for Messrs. F. T. Fisher & Lang (Southend), appeared for the Appellant
MISS P. MESSER, instructed by Messrs. Kingsford, Dorman & Co., agents for Messrs. Drysdales-Janes (Southend) appeared for the Respondent.
I have asked Lord Justice Sachs to give the first judgment.
This is an appeal by the wife from an order of His Honour Judge Buckee made in the Southend County Court (Divorce) on the 28th November, 1968. He rescinded the order of the court's Registrar made upon the wife's application for maintenance under Section 16 of the Matrimonial Causes Act, 1965 the Registrar had ordered that the husband file an affidavit of means and, for the meantime, had made an interim order of £2 a week: in lieu His Honour Judge Buckee ordered the husband to pay the wife a shilling a year maintenance intending that to be not an interim but a permanent order as regards maintenance.
Now I turn to the sequence of event a as regards the marriage. The husband and wife married in August, 1945, the wife being then 19. She is now 42. In 1946 they had a son called David, now 22, who does not come into the ambit of what has to be considered. In August 1962, they had twins, Marion and Richard, both now aged 16. Upon the material to which I will refer later and also upon the wife's own contentions the marriage was in the 1950's and early 1960s either on the rocks or, as Miss Messer put it, going towards a break up.
In August, 1964, the wife met the co-respondent. Between April, 1965 and November, 1965 the wife committed adultery with this co-respondent. She told the husband about it and confessed to him, but upon his saying, "You will then lose the children", retracted her confession. The association with the co-respondent ceased about November 1965.
On the 18th July, 1966, the wife filed a petition on the grounds of cruelty and asked for the discretion of the court. To its contents - twenty long paragraphs alleging cruelty - I will refer briefly later. It was followed by 3½ pages of further and better particulars. On the 3rd January, 1967, the husband filed an answer which was certainly no less long than the petition. It contained paragraph after paragraph either denying the allegations of cruelty or confessing and avoiding those allegations: then it alleged the adultery with the co-respondent and upon that there was a cross-prayer. There were once more some five pages of further and better particulars of the answer. Indeed - prefacing this remark by the fact that neither of the counsel in court were in any way responsible - these pleadings were of an inordinate length that ought to have attracted comment.
On the 15th March, 1967, there was a reply by the wife traversing the allegations in the answer and relying on conduct conducing. As it is common ground that theconfession to the husband was not a full confession of all the occasions on which adultery was committed, the conduct conducing could have been of no avail.
Then in May, 1968, there came as between the parties an arrangement of a type which has often been commended by judges of the Probate Divorce and Admiralty Division as one that saves much waste of the time of the court and of public money. There resulted a consent order by which the prayer for the dissolution of marriage in the petition was stayed, but the allegations of cruelty were not struck out. The reply was struck out and the cause was ordered to proceed in the Southend District Registry.
On the 28th July it came before His Honour Judge Buckee in the undefended list. According to what has been stated to this court, (this court has not got the transcript) the husband gave brief evidence, the learned County Court Judge declining to go into the long background that led up to the adultery. According to the wife's affidavit (to which I will refer again later) it was specifically stated by the husband in court that the marriage had broken down before the adultery, as the wife herself alleged. After he had given his brief evidence the wife was called to give evidence of her own adultery and, in those circumstances, a decree nisi was pronounced.
Neither the husband nor the wife having gone into the allegations in the wife's petition or the husband's answer thereto the judge of course never found nor could have found any facts in relation to the husband's conduct, and it is as well to say at the outset that the present case is very different to that of Field v. Field, 1964 p. 336, in which certain estoppels were created by the course taken in court.
On the 28th July the decree nisi made no order as to custody, the twins being 16 years of age.
On the 30th September the wife left the matrimonialhome. She has set up in accommodation of her own and the twine — and this is an important factor for later consideration — have elected to go with the wife and are living with her, Although they are only 16 they are earning some money; but, on the other hand, even after they have contributed to the household expenses the wife, according to her evidence, is left out of pocket.
Then came the maintenance proceedings and on the 30th September or thereabouts there was the wife's affidavit as to the matter. According to her testimony the husband, a salaried engineer, was earning something of the order of £3,000 a year whilst at that moment her earnings were in the region of £450 a year. There was no affidavit filed in reply by the husband; there was no notice given by the husband to cross-examine the wife on her affidavit. This spoke of a number of matters in relation to the breakdown of the marriage and contained two passages to which it seems as well to refer in paragraphs 12 and 13: Firstly: "The marriage took place almost 23 years ago and I am now aged 42 years". Secondly, "Throughout the whole of our married life I have been a good, willing, efficient, hard working and affectionate mother to the children of the family".
On the 14th November the matter came before the Registrar who, quite rightly, ordered the husband to file an affidavit of means and made an interim order as regards maintenance. Then the matter came before his Honour Judge Buckee on the 28th November. He heard no evidence So far as can be judged by what he said, he paid no attention to the wife's affidavit nor to what she had said in her discretion statement. He looked through the lengthy pleadings and pronounced a set of findings as to the cause of the break the marriage. He ended by stating upon a wholly erroneous basis, with which I will deal later, that in future this wife ought to be in the same position financially as if she hadnever been married. As a matter of grace be added a maintenance order of is, a year saying that this was for the remote contingency of her having a proper claim for a compassionate allowance in the future.
From what has already been stated it must be assumed that he was totally unaware of the procedure of the Divorce Division in Section 16 applications, or of the principles on which the discretion of the court is currently exercised in matters of maintenance in such cases. Some of the views he expresses are, at any rate, decades if not generations out of date. This is not the first appeal on ancillary matters decided under the new devolution where such errors have come to the notice of this court. I appreciate the difficulties of some County Court judges now called on to exercise a jurisdiction formerly vested solely in judges of the Probate and Divorce Division. Such misapprehensions and difficulties are exemplified by what is to be found in the statements of facts in Iverson's case 1967 p. 138, to which I will later refer. Those difficulties are enhanced by the fact that two of the standard textbooks deal with these important matters with some brevity and mention in their notes authorities; which have long been disused. Both Rayden at page 1,818, tenth edition, paragraph 18 and the comparable parts of Halsbury's Laws of England contain material which it is not easy for a reader at first flush to see is meant to be historical and ought not to be regarded as to represent an approach to be taken by a judge today. They can perhaps, be revised so as to come more into line with current practice.
In those circumstances, it seems as well for me to recapitulate in this court some of the basic principles applicable, even though they are already to be found in reported judgments in recent cases decided at first instance or in the Divisional Court. Section 16 is headed: "Maintenance and application of poperty in cases of divorce".
Section 16(1) reads: "On granting a decree of divorce or at any time thereafter (whether before or after the decree is made absolute) the court may, if it thinks fit… make one or more of the following...
To continue reading
Request your trial
-
Tumath v Tumath
...cannot in my view serve any useful purpose and may indeed be properly regarded as contrary to modern concepts of public policy. 7 In Porter v. Porter (1969 1 W.L.R. 1155) this Court has recently pointed out that a spouse does not now prejudice his or her chances in future custody or mainten......
- T v T
-
Work v Gray
...1 FLR 1478. Piglowska v Piglowski[1999] 2 FCR 481, [1999] 3 All ER 632, [1999] 1 WLR 1360, [1999] 2 FLR 763, HL. Porter v Porter [1969] 3 All ER 640, [1969] 1 WLR 1155, CA. R v R (rape: marital exemption)[1992] 1 AC 599, [1991] 4 All ER 481, [1991] 3 WLR 767, 94 Cr App Rep 216, [1992] 1 FLR......
-
White v White
...young children, a wife may lose for ever the opportunity to acquire and develop her own money-earning qualifications and skills. In Porter v Porter [1969] 3 All ER 640, 643-644, Sachs LJ observed that discretionary powers enable the court to take into account 'the human outlook of the peri......