Richards v Richards
| Jurisdiction | England & Wales |
| Judge | Lord Hailsham of St. Marylebone,Lord Chancellor,Lord Diplock,Lord Scarman,Lord Bridge of Harwich,Lord Brandon of Oakbrook |
| Judgment Date | 30 June 1983 |
| Judgment citation (vLex) | [1983] UKHL J0630-1 |
| Date | 30 June 1983 |
| Court | House of Lords |
[1983] UKHL J0630-1
Lord Chancellor
Lord Diplock
Lord Scarman
Lord Bridge of Harwich
Lord Brandon of Oakbrook
House of Lords
Lord Hailsham of St. Marylebone ( Lord Chancellor)
My Lords,
I believe that all your Lordships are agreed that this appeal must be allowed. But there is a difference of opinion as to the ground. My noble and learned friend, Lord Scarman, is content to decide the issue on the ground that the discretionary decision of the learned deputy High Court judge can be demonstrated to be plainly wrong, broadly because it was inconsistent with his plainly stated findings of fact which established that the respondent's application for interlocutory relief never achieved even a prima facie case.
The view of my noble and learned friend, Lord Brandon of Oakbrook, concurred in, as I understand, by the remainder of your Lordships, is based on a proposition of law, namely that, in an application of the kind under consideration in the instant appeal, the court to which the application is made is bound to follow the principles enunciated in section 1 of the Matrimonial Homes Act 1967 as amended by section 38 of the Matrimonial Proceedings and Property Act 1970 and by sections 3 and 4 of the Domestic Violence and Matrimonial Proceedings Act 1976, and no other. From this point of principle I apprehend my noble friend, Lord Scarman, dissents.
My Lords, since I have the pleasure in agreeing with the conclusion of my noble and learned friend, Lord Scarman, that this appeal succeeds independently of the point of principle and with my noble friend, Lord Brandon of Oakbrook, in his analysis and conclusions on the point of principle itself, after some consideration I have decided to set out at length my reasons for these two concurrent grounds of decision.
There is at least no dispute about the facts of the case and the course of the proceedings up to and including the hearing of the appeal before your Lordships' Committee.
Mr. and Mrs. Richards were married on the 18th November 1974. The matrimonial home is a council house rented from the Purbeck District Council. Mr. Richards appears to be the tenant. Mr. Richards is a bricklayer, in regular work.
Mr. and Mrs. Richards have two children, a girl and a boy. The girl, Melanie Jayne, is aged six, having been born on the 30th April 1977. The boy, Daniel Gordon, is aged four, having been born on the 26th March 1979. The girl is at school and old enough to know, and to say, that she does not wish her parents to be separated.
The marriage was not without its ups and downs. According to the welfare report, Mrs. Richards had left Mr. Richards on a number of occasions. Other men had been involved. But Mr. Richards had always forgiven Mrs. Richards and had never referred to these infidelities. These facts were based on Mr. Richards' statements to the welfare officer but have not been challenged.
In January 1982 while the parties were still cohabiting, Mr. Richards was surprised to receive a divorce petition signed by his wife. It sought, amongst other remedies, dissolution of their marriage. It alleged that their marriage had irretrievably broken down. It sought to establish this by proving that Mr. Richards had "behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent". Mr. Richards denies these allegations. According to the welfare report, his interest centres on his family and his home. He still cannot "accept the idea of divorce". The petition is therefore opposed, but without a cross-prayer. It has yet to be heard. According to Judge Pennant, sitting as a Deputy High Court judge, the allegations struck the judge as being "rubbishy". Mrs. Richards' own counsel admitted in the Court of Appeal that they were "flimsy in the extreme" and described them as "amounting to no more than that the wife was disenchanted by the husband".
On receipt of the petition Mr. Richards asked his wife whether she still wanted to cook for him and so forth. She said she did. She moved out of their bedroom into one of the children's rooms. Thereafter, the children shared a room. The parties continued under the same roof for some months. Mrs. Richards went out a good deal in the evenings. On one occasion she told her husband that she had been seeing a man called David with whom the children got on very well and with whom she was going to live. There is no means of knowing how much of this was true and nothing came of it until June 1982.
At the beginning of June 1982, Mrs. Richards left home again. She took the children with her. She went to stay with a Mrs. Moore at Mrs. Moore's house in conditions admittedly overcrowded. Mrs. Moore's house is eight miles away in Swanage. From Friday tea-time to Sunday evening Mrs. Richards took the children to stay with their father in the matrimonial home. During term she drove the daughter to school. When she was on holiday she took the children to stay with their father. At some time during this period she took the children for a short time to stay with a man called Alan in Hanworthy. This appears to have been during July 1982. She described this as a business arrangement, but, not altogether surprisingly, the judge said that he had more than a suspicion that she had been committing adultery. On the 2nd August the court welfare officer made the report to which reference has already been made with a view to investigating the possibility of reconciliation or a possible order of custody. The welfare officer reported that in view of the children's need of their father, of the couple's proven ability to co-operate and of concern for the children's security, the court might feel that joint custody was desirable and workable. No order for custody has in fact been made. In his answer to the petition, Mr. Richards does not seek care and control.
So matters rested until 15th October 1982. On that date the wife issued a summons making an application intituled in the pending suit from which the present appeal ultimately stems. There was no reference in the heading indicating which jurisdiction the wife was seeking to invoke. It was simply an interlocutory application in the suit. In it, the wife claimed an injunction against molestation and another restricting communication. Both of these were rejected and are not now persisted in. She also sought an order that the husband should quit and deliver up possession of the matrimonial home, and not return thereto. There was an affidavit in support. Both the summons and the supporting affidavit were served on the 3rd November 1982. On the 8th November 1982 the husband filed an affidavit in reply. This was the date of the hearing before Judge Pennant sitting as a deputy judge of the High Court. Both parties gave brief evidence to the judge. Mrs. Richards said she could not stay at the house of her friend beyond the 22nd November, and that, although she had tried to get accommodation from the council, the best they could offer, at least at that moment, was a caravan. She added that she would not return to the matrimonial home while her husband was there. In these circumstances. Judge Pennant was called upon to make his decision on the wife's application.
The judge found that Mrs. Richards "has no reasonable ground for refusing to return to live in the same house as her husband", but that the existing accommodation where she was then living was "overcrowded and not a fit home for the children". Contrasting the case with Samson v. Samson ( infra) he said that the wife had told him that she "could not bear to be in the same house as the husband". He added:
"The wife is strong-willed and does not wish to be in the same house as her husband and says she cannot bear to be with him. But it is not true that she cannot". (emphasis mine).
The judge further found: "I think it is thoroughly unjust to turn out this father, but justice no longer seems to play any part in this branch of the law". He felt himself constrained to follow Samson v. Samson [1982] 1 W.L.R. 252, rather than Myers v. Myers [1982] 1 W.L.R. 247, on the ground that the matrimonial home "was a house provided by the public as a home for these four people, and that being so, the public interest (sic) is best met by installing the children in that home, which means in practice installing their mother too". He added:
"I find that it is by no means certain that there will be a divorce on the present grounds, and I have come to the conclusion that although it is unjust to the husband, it seems right to grant the order sought in the interests of the children"
In the event the judge made an order, not in the terms asked for by the wife but in the following terms:
"That the respondent do vacate the matrimonial home 13, Stoborough Green, Stoborough, Wareham, Dorset on or before the 22nd November 1982".
There was no order to the effect that he should not return. In the event Mr. Richards appealed and by an order dated the 8th December his appeal was dismissed by the Court of Appeal (Cumming-Bruce and Dillon L.JJ.) who also refused leave to appeal to the House of Lords. By leave of the Appeal Committee the husband now appeals to your Lordships. It is, however, important to point out that what has in fact happened on the ground is, owing to the good sense of the parties, rather different from what the orders of the courts below might have led one to expect. In fact, the wife occupies the house from Monday to Friday, and the husband from Friday to Monday. The children are permanently in the house and are looked after by the parent in occupation. The husband has no difficulty in looking after them either under this arrangement or when the wife is on holiday, when he stays in the house throughout the week. This rather bears out what the welfare officer said...
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