Quinn v Quinn
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE WINN,LORD JUSTICE PHILLIMORE |
| Judgment Date | 25 June 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0625-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 June 1969 |
[1969] EWCA Civ J0625-3
Lord Justice Davies
Lord Justice Winn and
Lord Justice Phillimore
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
From: Mr. Justice Stirling - London)
Mr. JOHN HALL, Q. C. and Mr. ALAN RAWLEY (instructed by Messrs. Johnson, Weatherall & Sturt, Agents for Messrs, Baily, Gibson & Co., Beaconsfield, Bucks.) appeared on behalf of the Appellant (Wife, Petitioner).
Mr. JAMES COMYN, Q. C. and Mr. FRANK WHITE (instructed by Messrs, Charsley, Leonard & Co., Slough, Bucks.) appeared on behalf of the Respondent (Husband, Respondent).
This is an appeal by a petitioning wife from a decision of Mr. Justice Stirling given on the 12th July of last year, whereby he dismissed the wife's petition for dissolution of marriage on the ground of cruelty. In a sentence, the learned judge found that cruelty had been proved and that, in circumstances which I shall presently describe, it had been condoned. From that decision the wife, as I say, appeals. There is no cross-appeal, so that the issue of cruelty is not in dispute. The two real questions which arise in the appeal are: first, the question of condonation; and secondly, a novel and interesting point as to the effect of an application to the facts of this case of the provisions of section 42 (2) of the Matrimonial Causes Act, 1965.
The history of the marriage is this. The parties were married in December, 1961, when the husband was 26 and the wife was 22. The judge has found, and there is no doubt about this since it was the wife's evidence, that the wife was never in love with the husband, though he apparently always had been right up to the date of the trial in love with her, according to the judge's view of the facts. The marriage really only took place because the petitioner found herself, before she was a wife, pregnant. They were married, as I say, in December, 1961, and the first child, a girl, was born in July, 1962. There was another child born in February of 1965. The children do not come into the picture at all. The wife's father was a farmer and wholesale butcher, a man, it would appear, of some substance. At the time when these two people met, the husband was employed as a slaughterman in the wife's father's business, but subsequently improved his position and became a buyer and a dealer.
The marriage was never particularly successful, it would appear, though regular sexual intercourse went on between the parties throughout. The wife's complaints were that the husband was of a moody disposition, depressed and guilty of long silences, which deteriorated into threats and actual violence. As I havesaid, we need not discuss the question of cruelty because the judge has found that it was proved. But it is right to say that he approached the wife's evidence about cruelty with great care, because there was in the background a Mr. Stephenson, who had struck up a friendship (I will put it no higher) with the wife in 1966 and whom the wife, it would appear, even at the trial was wanting to marry. The judge said that he would look carefully to se what corroboration there was of the wife's evidence. He found corroboration there was of the wife's evidence. He found corroboration in the shape of evidence about black eyes, bruises, and so forth, and therefore the case of cruelty was made out.
At Easter of 1966 the wife left the husband, in consequence of a physical assault that he had made upon her. She was away for some three days, and after that period went back to him at his request, and, I think, with some advice from her father. The judge found that between her return and September there were further assaults. In consequence of that, she left him again, for about a fortnight this time. Once again, on the 5th October, she returned to the matrimonial home, which had been the wife's father's farm, where they had all lived together but whence the wife's parents had removed some time in 1965. As I say, she returned on the 5th October, 1966. She left for good on the 20th of that month - that is to say after 15 days. During most of that period they had had sexual intercourse, and there is no evidence of any act of cruelty at all. The wife complained that during that period the husband was somewhat moody and silent; but the judge has found that there was nothing in that period that was sufficiently serious, nothing at all, to revive the antecedent cruelty. Although the appellant suggests that the learned judge was wrong in that regard, I have come to the conclusion that on the evidence the judge was completely right in the conclusion to which he came on that matter, and I propose to say no more about it. The real contest in this case, as I have said, is on this question of condonation and on the effect of section 42 (2) of the 1965 Act.
The learned judge, in my view, approached the question ofcondonation quite correctly. He said this: "It is contended on behalf of the respondent that the wife by resuming cohabitation in early October and by remaining with her husband in ostensibly the fullest sense of a wife has condoned any cruelty previously committed. In my judgment the facts of the present case raise a presumption of condonation by the wife; she voluntarily returned to resume cohabitation with her husband". Then, after a reference to the decision in the House of Lords in Blyth v. Blyth, he says: "In my judgment she has failed to satisfy that onus. There was no element of compulsion by the husband or by external circumstances such as having no roof or means of subsistence. The discussion between the husband and wife led directly to her return to the matrimonial home. This is very different from the facts in Blyth's case where there had been an isolated act of intercourse not preceded by any discussions about forgiveness".
On the evidence that was before the learned judge, it seems to me perfectly clear that he was right in coming to that conclusion, and that means that the wife had failed to satisfy him, as she could have done had the evidence been sufficient, that in returning to the matrimonial home for that period - 15 days - she had not forgiven the husband. It is implicit in the finding of condonation that she had conditionally, as Mr. Comyn rightly points out, forgiven her husband for his past misdeeds.
Before one comes to consider the much more difficult question of section 42 of the Act, it is right to point out that, although the two things are by no means the same, it is not a very long step from the implicit finding that the wife had conditionally forgiven her husband to saying that when she did return in those circumstances she did not return for a trial period but that she returned having forgiven him. However, the judge considered section 42 as a separate question, and it has been argued as a separate question in this Court; and it is right, in my judgment, that we should deal with it on that footing.
The provisions of section 42 (2) of the Act are as follows: "For the purposes of this Act and the Matrimonial Proceedings(Magistrates' Courts) Act, 1960, adultery or cruelty shall not be deemed to have been condoned by reason only of a continuation or resumption of cohabitation between the parties for one period not exceeding three months, or of anything done during such cohabitation, if it is proved that cohabitation was continued or resumed, a the case may be, with a view to effecting a reconciliation".
Now I think it is right, because they are not too lengthy, to recite the passages in the evidence dealing with the circumstances of the wife's return on the 5th October, 1966. I read first from page 14. "(Q) When you had spent 2 little time in Bournemouth, did you come back to Slough? (A) After we had had a week which was pretty intolerable wondering what was happening at home, I went back to my mother's place and then he came up to see me. He asked to see me and —– (Q) Yes, I will come to that. So your husband come up to see you, and what did he say to you? (A) He just said, "Will you come back?". He just kept on and on asking me to come back and it did sort of wear me down. I did not want to go but I felt it was the right thing to do, and I went back, I don't know, I think I went back the next day.…. (Q) What was your object in going back? (A) He was so pleasant and jolly and nice and he said, 'If you ever leave me again be sure to give me something, you know, tell me" – I am not sure that that is not a mistyping: I think it should be "kill me" – "before you go so I don't have to suffer this again'. (Mr. Justice Stirling): He was asking you to kill him? (A) Yes, so that he didn't have to go through it again. I thought well, this time he really means it. (Mr. Rawley): Did he make any promises about his future behaviour? (A) He said he would be very different". Then, after dealing with what happened during the time she was there, the judge asked a question which (I am not suggesting for a moment that it was improper) rather put an expression in the lady's mouth. the judge says: "Before we leave the circumstances in which you went back, you say you went back thinking that he would be different and better and he really meant it.Did you go back meaning to overlook the whole of the past, or did you merely go back to see how an experimental period would work? (A) Yes, it was really that. It was an experimental period". That harks back to a paragraph in the wife's petition, paragraph 19, where, anticipating the question of condonation, the learned pleader alleged that "On or about the 5th October, 1966, the petitioner resumed cohabitation with the respondent with a view to effecting a reconciliation but the said resumption lasted for only fifteen days and the reconciliation did not succeed". (It is not quite grammatical, the last part, but never mind).
Now, going on with the wife's...
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