Richards v Richards
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CUMMING-BRUCE,LORD JUSTICE DILLON |
| Judgment Date | 06 December 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J1206-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 82/0480 |
| Date | 06 December 1982 |
[1982] EWCA Civ J1206-3
Lord Justice Cumming-Bruce
and
Lord Justice Dillon
82/0480
1982 D 007
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION (WEYMOUTH DISTRICT REGISTRY)
(His Honour Judge Pennant sitting as a deputy
High Court Judge)
Royal Courts of Justice
MR. SIMON LEVENE (instructed by Messrs Edmund Buck & Co., Swanage) appeared on behalf of the Appellant (Respondent).
MR. PATRICK BACK, QC. and MR. TIMOTHY J. COOMBES (instructed by Messrs Neville Jones & Howie, Wareham) appeared on behalf of the Respondent (Petitioner).
The husband married the wife in November 1974. Their daughter was born in April 1977, their son in March 1979, so they are 5 1/2 and 3 1/2 years old.
On 8th January this year the family was living together in a council house at 13 Stoborough Green, Wareham, Dorset. The husband worked in a steady job as a bricklayer, being away from home at his work during the daytime five days a week. According to his evidence, as far as he was aware their marriage was relatively settled, though in the early days of the marriage she had twice left him because she was having an affair with another man, but that he regarded as forgotten and past history.
On 8th January the wife filed a petition for divorce on the ground that the marriage had irretrievably broken down and that her husband had behaved in such a way that she could not reasonably be expected to live with him. The pleaded particulars of this allegation are as follows:
(a) Throughout the marriage the Respondent has paid little regard to the Petitioner's feelings. He never remembers the Petitioner's Birthday or Wedding Anniversary and even when the Petitioner reminds him of these events the Respondent takes no action with regard thereto. Similarly at Christmas time the Respondent does not buy presents save that in 1979 and 1980 he bought the Petitioner a box of chocolates for Christmas.
(b) Prior to the birth of the children the Respondent frequently indicated that he wished to have children but when the Petitioner became pregnant he took no interest whatever in her welfare and well being.
(c) At the time of the birth of the child Melanie the Petitioner was in Hospital and as soon as the child was born the Respondent left the Petitioner at the Hospital and went to visit his parents and then went out socially with friends. He did not notify the Petitioner's parents of the birth of their Grandchild thereby causing worry and distress to the Petitioner.
(d) During the time that the Petitioner was pregnant with the child Daniel on the one occasion she felt the child kicking and asked the Respondent to put his hand on her stomach to feel the child's movements. The Respondent refused and threw a hard backed book at the Petitioner's stomach. This caused an argument and the Petitioner spent that night sleeping on the settee.
(e) At the time of the birth of Daniel the Petitioner was neglected by the Respondent and received no card, flowers or any other gift or sign of affection from the Respondent, thereby causing the Petitioner distress and embarrassment.
(f) The Respondent pays no regard to the Petitioner in respect of informing her of his arrangements. He does not inform the Petitioner as to when he is having holiday from work and frequently the Petitioner only becomes aware that he has holiday when he does not go to work.
(g) The Respondent refuses to take the Petitioner out socially. On one occasion at a Company Dance the Respondent at first refused to dance with the Petitioner and when eventually he was forced to he immediately left the room afterwards. He refuses to take the Petitioner to the Cinema.
(h) The Respondent owns a dog which causes considerable damage in the Matrimonial Home. The Petitioner has frequently asked that the Respondent disposes of the dog but he refuses, thereby causing the Petitioner additional work and expense and distress.
(i) Throughout the marriage the Respondent has shown a selfish attitude and as an example of this whenever the Petitioner has bought him a present or item of clothing he does not even acknowledge the gift nor thank the Petitioner thereby causing her distress.
(i) Over the past year as a result of the Respondent's behaviour the Petitioner has suffered severe nervous depression and at one stage threatened suicide. She is receiving treatment for her nerves and takes Valium tablets.
The husband was taken by surprise by the petition. In his affidavit he described how, after the petition was served, he asked her whether she still wanted to cook for him, and so forth, and she said that she did. She moved out of their bedroom into one of the children's rooms and the children thereafter shared a room. She went out a good deal in the evenings and on one occasion told him 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 with. Nothing came of that and she continued living at home.
In March the husband filed an answer to her petition, denying her allegations in apparently impressive detail and saying that if which was not admitted she suffered from severe nervous depression, his behaviour did not cause it. He did not seek care and control of the children, but asked for joint custody and asked that the petition should be dismissed.
The older child began school in Stoborough. On 1st June the wife left home, taking the children with her. She went to stay in the house of a friend, Mrs. Moore, in Swanage, 8 miles from Stoborough, driving their daughter to and from school at Swanage during the week, and taking both children to stay with their father at home at week-ends from Friday tea-time to Sunday evening. She also took the children to stay with their father during two periods when he was on holiday.
Soon after establishing herself in Swanage, she went with the children to stay with a man called Alan in Hanworthy, but she did not stay long. This explains three letters from her solicitors to his solicitors dated 12, 19 and 22 July. I quote from the letter dated 12 July:
"We write to advise you that our client will be moving from her present address in the near future to establish a new home. In the circumstances we feel it appropriate to deal with the contents of the Matrimonial Home at this stage."
On 19th July they wrote:
"Thank you for your letters of the 14th July together with enclosed Affidavit."
(an affidavit of means).
"We write to confirm that our client will not be seeking Maintenance in respect of herself."
On 22nd July they wrote again:
"Further to our letter of the 19th July we are now instructed that our client will not be moving in the near future and will remain at her Swanage address. She intends to remain there for the immediate future."
In evidence before the judge the mother described her move to stay with Alan as a business arrangement. The judge said that he had more than a suspicion that she had been committing adultery. After the collapse of the project to move from Swanage to set up home with Alan at Hanworthy, she came back with the children to live again at Mrs. Moore's house at Swanage which, according to her evidence, had only been a temporary arrangement.
On 2nd August the welfare officer reported on reconciliation and joint custody. The welfare officer reported that she had been to the home in Stoborough before Mrs. Richardson and the children had left, and had spoken to the children. The little girl was able to express that she did not want her parents to part. She said that it was evident that the husband was distressed by the divorce proceedings and unable to accept that his marriage could be terminated for the grounds stated. As she was leaving, the wife followed her from the house and told her in confidence that she would be moving to Swanage during the first week of June. Later she visited the mother at the address in Swanage where she and the children were sharing one bedroom with Mrs. Moore, but she again made it clear that she did not wish to try and work towards a reconciliation, though her only grounds for discontent were those stated in her petition. She said she would have been content with a legal separation. She told the welfare officer that, since leaving her husband, she had no-one to turn to as her family had cut her off. Apparently they disapproved of her goings on. She had been prescribed tranquilisers, confirmed by her doctor, and she had recently had to start taking them again.
Then the welfare officer, seeing the husband again, found that he still could not accept the idea of divorce and said he would welcome his wife back. She had gone on other occasions but he had always forgiven her and had never referred to these episodes. She reported that he was a man whose interests centred on his family and home and he was still working on improvements to the central heating system and seemed determined to think only in terms of continuing to live there though, said the welfare officer, it is hardly likely that the council will fail to evict him. Doubtless when reporting in those terms, the welfare officer had in mind that, if the parents had to live apart from each other and did live apart from each other, the council would appropriate the house to whichever parent had care and control of the children.
She reported that access had been taking place at week-ends, the mother bringing the children over and leaving them with their father until Sunday night, and when she asked the father whether he could manage the children on his own,...
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