Purse v Purse
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE ORMROD,LORD JUSTICE DUNN |
| Judgment Date | 19 December 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J1219-1 |
| Date | 19 December 1980 |
| Court | Court of Appeal (Civil Division) |
[1980] EWCA Civ J1219-1
In The Supreme Court of Judicature
The Court of Appeal
(On appeal from Brighton County Court)
The President
Lord Justice Ormrod
Lord Justice Dunn
MISS WINDRIDGE (instructed by Messrs. Greenwood, Page & Ward of Colchester, Essex) appeared on behalf of the Appellant.
MR. G. HOLMAN appeared on behalf of the Queen's Proctor.
- By this appeal Mrs. Joy Patricia Purse seeks to set aside an order made on the 20th September 1977 by the Registrar of Brighton County Court dispensing with service of a petition for divorce filed by her husband William Allever Purse, the Decree Nisi of dissolution of marriage granted on that petition by His Honour Judge Brian Grant at Brighton County Court on 25th October 1977 and the Decree Absolute appertaining to the latter granted on 7th December 1977. Leave for this appeal out of time has already been granted.
Mr. and Mrs. Purse were married in 1933 and separated in 1966. They had one child, Unity Edith Angela, who in 1963, married Jeremy John Heath. After the separation Mrs. Purse went to live in Bristol where her daughter was living and she never again met or corresponded directly with her husband who died on the 26th April 1979. Mr. Purse knew that his wife took up residence in Bristol and there was some correspondence during 1966 and 1967 between their respective solicitors. In 1970 Mr. Purse was anxious to get into touch with his wife, apparently with a view to a possible reconciliation, and he employed a private detective to ascertain her whereabouts. He informed the detective of the address in Bristol at which he knew his wife to have been living in 1966 and that a likely source of information would be Mr. and Mrs. Heath since he surmised correctly that his wife would be in touch with them. The detective reported to Mr. Purse in December 1970 that he had ascertained that Mrs. Purse had been replaced as the occupant of the Bristol premises by other occupants and that he had been unable to discover her present whereabouts or those of Mr. and Mrs. Heath, save that thelatter had, about three years previously, moved to the Colchester area. The detective offered, in case Mr. Purse should not have any further knowledge of relevance to the enquiry, to continue his investigations and submit a further report. So far as appears, however, Mr. Purse did not pursue this suggestion or make any other attempt to obtain contact either with his wife or his daughter and son-in-law. In 1977 Mr. Purse, who by this time had been separated from his wife for about 11 years, was minded to obtain the dissolution of his marriage, and, on the 19th May 1977, he filed a petition for dissolution based on the irretrivable breakdown of the marriage and 5 years' separation. He did not have any information to enable the petition to be served in accordance with the primary requirements of the Matrimonial Causes Rules and he therefore applied for an order dispensing with service. It is evident that before this application was made, Mr. Purse's solicitors had attempted to discover Mrs. Purse's whereabouts by enquiry of the solicitors who had been representing her soon after the separation, but had been informed by them that they had lost contact with Mrs. Purse in 1969. ln support of his application to the court, Mr. Purse swore an affidavit on 15th September 1977 stating that he had not seen his wife since she left the matrimonial home on the 27th May 1966 giving the last address which he had for her, namely that in Bristol, relating the facts of his instruction of the detective and exhibiting the latter's report and stating that since the date of that report he had been unable to establish the whereabouts of his wife. On the basis of the contents of those documents, and without further enquiry, the Registrar made the order on 20th September 1977 dispensing with service. On 24th October 1977 the learned Judge pronounced the decree nisi andthis was made absolute on 7th December 1977. Of all of these events concerning the petition and application of Mr. Purse and the proceedings of the court thereon, Mrs. Purse was of course wholly in ognorance.
In 1967 Mr. and Mrs. Heath left Bristol and went to live in Colchester where he was employed as Curator of the Colchester Natural History Museum. This was a field in which Mr. Heath had been employed at all times since before his marriage to his wife and this was known by Mr. Purse to have been the case at about the time of that marriage. From the time of their move to Colchester until 1973 the Heaths lived in rented accommodation there and apparently did not have an entry under their name in the local Telephone Directory but in 1973 they bought their own house in Colchester and from then onwards there was such an entry. In 1972 Mrs. Purse followed her daughter and son-in-law to the Colchester area, at first residing in a flat at Frinton and in 1975 moving to an address in Colchester where she has ever since resided.
By his Will dated the 15th March 1978 Mr. Purse gave some pecuniary legacies and made a residuary gift to charity but made no provision for Mrs. Purse. His Will was proved on the 20th July 1979 by Lloyds Bank Limited. His nett estate is of the order of £30,000 in value. By an originating summons dated the 18th July 1980 Mrs. Purse has commenced proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 which have been adjourned to await the outcome of this appeal.
The basis of Mrs. Purse's case is that there were various channels through which enquiries could have been made as to her whereabouts by her husband in 1977 which would, in all probability, have been successful in their object but that none of these wereundertaken and no sufficient investigation was made by the Registrar about the making of any such enquiries although, the information available to him suggested, she alleges, the possibility of such enquiries being useful. She further says that if she had known by service of the petition on her personally of its existence as, she says, would probably have been effected after the appropriate enquiries, she had ample ground for opposing the petition on the ground of grave financial hardship under Sec.5 of the Matrimonial Causes Act 1973 and, if that defence had been unsuccessful, the possibility of obtaining appropriate financial provision under Sec.10 of that Act.
In support of the first part of that claim she says that Mr. Purse knew of the address of her Bank in 1966 and that an enquiry there would have resulted in the transmission to her of any correspondence sent to the Rank, that it would have been easy to have traced Mr. Heath, and through him Mrs. Purse herselfe, by enquiry in the Colchester area directed to the possibility of his employment at a Museum, and that enquiry for her or Mr. Heath through the D. H. S.. S. would be likely to have revealed her whereabouts. She also referred to her friendship with a family called Randal with whom her husband was acquainted and whose address he knew, as being a point of contact with her which he should have investigated, but it appears that he supposed the family to have been called Randall so that this line of enquiry was less obviously useful than might have been the case. Mr. Purse was a Ship's Engineer and served in the ships of the Union Castle Mail Steamship Co. rising to the post of Chief Engineer. Under the terms of his employment, any wife who survived him would receive a pension, in the event, of £1,648.25 per annum which would not, however, be payable to a woman who was his ex wife and thiscircumstance would have been the foundation for Mrs. Purse's resistance to the petition under Sec. 5 of the Act of 1973.
There is not, In my judgment, any material from which it would be proper to derive the conclusion that there was any dishonest concealment from the court of material which might have led to the discovery of the whereabouts of Mrs. Purse at the date of Mr. Purse's application to dispense with service of the petition but the efforts of Mr. Purse to discover his wife's whereabouts were, in my view, quite inadequate to comply with his obligations as a person claiming the privilege afforded by the relevant Rule, now Rule 14 (11) of the Matrimonial Causes Rules 1977 which is in similar terms to that in force at the date of Mr. Purse's application. A party applying under that sub-Rule ought in my judgment to make every enquiry which it is reasonable to make in the light of the knowledge of that person which might lead to his ability to serve the process in accordance with sub-Rule 1, and if he does not do that he has not demonstrated sufficiently the impracticability of such service. It is specifically provided in the sub-Rule that after the lodging of the affidavit of the applicant, the Registrar may, if he thinks fit, require the attendance of the applicant on the application. The Registrar in this case knew the it was thought likely that the discovery of the whereabouts of Mr. and Mrs. Heath would lead to the discovery of the whereabouts of Mrs. Purse, that it was known that Mr. and Mrs. Heath had moved to the Colchester area in 1967 and that apparently no enquiry for them had been made in that; area since December 1970. In my judgment the power to require the attendance of the applicant should be used by a Registrar when dealing with an application of this sort whenever it appears from the available material that lines of enquiry havenot been fully explored, and in this case there was certainly, in ray view, sufficient material to have justified that course.
Where there is alleged to be a defect in service of a petition and it is sought for that reason to set aside the decree made thereon where it has been made absolute, an appropriate process for the purpose is an...
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