REVIVAL OF CONDONED MATRIMONIAL OFFENCES

Publication Date01 Jul 1946
DOIhttp://doi.org/10.1111/j.1468-2230.1946.tb01004.x
AuthorR. Else Mitchell
REVIVAL
OF
CONDONED
MATRIMONIAI,
OFF
EN
C
1.1:
S
THE
question of what conduct is necessary to revive
a
condcned
matrimonial offence which has agitated the Divorce Coiirts
in recent years has been recently settled
by
the decision
of
the Court of Appeal in
Bed
v.
Beard,’
whcre Scott and
Lawrence,
L.J.J.
held, Vaisey
J.
dissenting, that condoned
adultery was revived by desertion for less than three years,
even though such desertion is not a ground
for
independent
matrimonial relief. Despite the fact that the law must
now
be regarded as settled by this decision,
it
is interesting to
examine some of the deeper grounds and implications
of
the
Court of Appeal’s decision. Before making this examination
it may be as well to point out that the question at issue is not
the restricted one posed by a learned writer in
a
recent article
in this journal of whether
a
condoned matrimonial offence will
be revived by desertion for less than three years, but whether
it can be revived by any conduct short
of
a matrimonial offence
for
which substantive relief can be granted in the Divorce
Courts. This wider question embraces other forms of matri-
monial misconduct such as cruelty, indecent
or
irregular
conduct not constituting adultery, and less serious conduct
such as failure to
up port.^
There seems no doubt that the
decision in
Beard
v.
Beard
carries with
it
an affirmative answer,
though with certain reservations, to this wider question.
At the outset
it
must be painted out that the public interest
in matters of divorce which is so often referred to and relied on
involves
at
least two countervailing social interests, namely
:-
(a) the necessity for the maintenance of stable family life
(b) the desirability
of
dissolving the marriage tie in cases
These countervailing interests were expressly recognised by
and marriage as an institution
;
and
where
it
would be futile to continue it.
1
(1946j,
61
T.L.R.
5.55.
2
Rupert
Cross.
The
Revival
of
a
Matririionirl Offence
by
Subsequent
Miacon-
du&
(1945).
8
MoD.L.REv. 149.
.‘I
Moore
v.
Moore.
[l892]
P.
302;
Ridgway
v.
Ridyway,
29
W.R.
612;
Perrria
v.
Peteria.
I.L.R.
5
Mod.
118:
Halliqan
v.
Hallijan,
30
N.Z.L.R.
306;
DeLircu
v.
DeLuca,
12
Y.R.(N.S.W.)
619.
4
Cf.
8
Moo.L.Rev.
at
156.

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