Robinson v Robinson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE SCARMAN |
| Judgment Date | 19 December 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J1219-6 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 1973 |
[1973] EWCA Civ J1219-6
In The Supreme Court of Judicature
Court of Appeal
On Appeal From the High Court Justice
Family Division
(Mr. Justice Cumming-Bruce)
Lord Justice Davies
and
Lord Justice Scarman
MR. A.B. HOLLIS Q.C. and MR. J. TOWNEND (instructed by Messrs. Kingsley Napley & Co., Solicitors, London) appeared on behalf of the Petitioner (Appellant)
MR. BRUCE CAMPBELL Q.C. and MR. JOHN BULL (instructed by Messrs. Lovell. White & King, Solicitors, London) appeared on behalf of the Respondent (Respondent).
I Will ask Lord Justice Scarman to deliver the first judgment.
In effect, there are three appeals before this Court. The first is an appeal by the wife, Mrs. Robinson, with the leave of the trial judge, from an order refusing her the costs of the divorce suit between her and her husband. The second is also an appeal by the wife. this time with the leave of the Court of Appeal, from the judge's order making certain financial provision for her and the children of the family. The third appeal is a cross-appeal by the husband from the judge's order making that provision, in which he submits that either no order for financial provision for the wife should be made or that an order should be made for a sum less than that ordered by the learned trial judge.
Before I come to the history of the family so far as it is relevant to these three appeals, I shall refer briefly to the financial provision order that, subsequently to the making of the decree nisi in the wife's suit, was made by the trial judge on 16th July of this year. The terms of the order are of importance - in quoting the order I shall substitute the term "husband" for the term "respondent" and the term wife" for the term "petitioner". It was ordered that the husband do pay to the wife maintenance pending suit at the rate of £1,200 a year less tax, and, after the making of the decree absolute periodical payments at the same rate. Then the trial judge ordered that the husband should pay to the wife, for and towards the maintenance and clothing of the three children of the family still at school, Julia, Anna and John, the sum of £3.20 less tax per week in respect of each child until they should attain the age of 18 years, or further orders: that, in effect, was an order imposing upon the husband an obligation to pay to the wife, over and above her order and over and above certain otherorders for the children, an annual sum of approximately £500.
Thirdly, the judge ordered that the husband should pay to each of the three children to whom I have referred and to their elder brother Giles, who is now 18, periodical payments at the rate of £1,000 a year, less tax. The order also recites an agreement between the parties (called an "arrangement") as to how the purchase of school clothes should he financed, ultimately of course by the father. The order also recites an undertaking by the father to discharge any expenses on school fees, school clothing or necessary medical expenses for the children in excess of the sum of the £1,000 a year ordered as maintenance to be paid by him for each of the children.
The global effect of the financial provision order was therefore that the husband had to find, less tax, £4,000 a year for the four children, £500 a year additionally to be paid to the wife but to be spent upon the children, and £1,200 a year maintenance, or financial provision, for the wife. As I have indicated, the three appeals concern what in law are strictly regarded as ancillary matters:- the costs of the divorce suit in which, as I shall subsequently narrate, the wife obtained a decree nisi, and the order for financial provision for the children and the wife, which I have now recited in detail.
The history of the marriage, so far as it is relevant to the three appeals, is as follows: the husband and wife are now in their mid forties; they were married on 2nd May 1953 and they have four children, Giles aged 18, who has left school and is now working on a farm in Yorkshire, no doubt partly under instruction so as to equip himself to become a farmer; Julia, aged 15 who is at boarding school; Anna, aged 14, who is at boarding school; and John aged 9 ½ who is also at boarding school. The mere recital of what the children are doing indicates at once that the court has before it a well-to-doindeed, a wealthy - family.
The husband was described by counsel for the wife, I think not inaccurately, as being by occupation a hotelier and farmer. He is now farming in Scotland and at the same time has an hotel business in England. He runs the farm and the hotel really as one group of business activities through the not unfamiliar structure of private companies, into which it is unnecessary for the court to go.
When the husband and wife were living together, their matrimonial home was in Surrey, at the Clock House, Bramley, no doubt a large and elegant establishment. The marriage ran into difficulties within three or four years of its celebration and by the early 1960's these parties were unhappy, the one with the other. In November 1964 the husband, who by then was feeling acutely the strain of the domestic tensions to which he was subjected, left home to go on a holiday to the Canary Islands. In the event he left home never to return. There is no need for me to consider in any detail the course of subsequent events; when he returned from the holiday he did not go back to the Clock House; there was an exchange of communications between the wife and the husband; the wife attempted to persuade him at least to come back to the Clock House and talk things over with her but he would not. The details of these events may be of some importance a little later in the judgment, but I pass over them at this stage.
They have not lived together since November of 1964, and the course of events since then has been as follows: on 8th July 1965 wardship proceedings in respect of the children were initiated by the husband; on 6th April 1966 an order was made in those proceedings giving the care and control of the three younger children to the wife. Ultimately, in August of 1968, the wife filed a petition for divorce upon the ground of desertion; she pleaded what isknown as a simple desertion. Her case was - and I quote from paragraph 6 of the Petition - "that in the month of November 1964 the husband left the matrimonial home in order to go on holiday, to Spain; that on his return to England in December 1964 he did not return to the home but lived elsewhere. In the premises the husband left the home - that is, the matrimonial home - without the consent of the wife and with the intention of bringing cohabitation with her permanently to an end, thereby deserting her: there has been no resumption of cohabitation since November 1964".
Events followed a protracted, almost slow-motion, course and in October 1969 the husband filed an answer to the suit in which, while denying desertion, he alleged against the wife cruelty, and, to use the jargon of the lawyers, constructive desertion. He sought by his answer, as the wife had sought by her petition, a decree; and both these spouses by their pleadings had to seek, under the law as it then was, the exercise of the court's discretion in respect of their adultery. The discretion statement of the wife disclosed, prior to the breakdown in November 1964, one isolated act of adultery, which, as we now know, the husband had condoned many years ago. The husband's discretion statement disclosed an adulterous association with a number of women prior to the breakdown and went on to disclose further adulterous associations with different women thereafter. In fact, the divorce suit was not brought to trial until May of 1973. The years between 1969 and 1973 were occupied, if I may borrow the phrase which has been used in argument in this case, by "endless negotiations". The husband, during those negotiations, was insisting that the wife's conduct (He was attributing to her the breakdown of the marriage) must be reflected in any order or agreement that was reached as to maintenance or financial provision. At the sametime he consistently took the line, as he always has done, that he was ready to provide for all the legitimate requirements of the four children.
In the early part of 1973 the wife's advisers put forward the suggestion that since the problem of conduct was really now only relevant to the issue of financial provision, it might save a lot of embarrassment, unpleasantness and expense, if the parties were to agree to the divorce "being obtained under the new Act, the Divorce Reform Act of 1969, Section 2 (1) (e), since on any view of the matter these parties had been living apart for more than five years. The parties were unable to agree on this; I do not think it matters now why. I have indicated the main point of view, from which the husband was not prepared to resile, namely that the wife's conduct was relevant to financial provision. Because they could not agree the wife took out a summons on 30th March of this year, asking for leave to file a new petition alleging five years' separation under the new Act, but, as the husband was not agreeing at that stage, the Registrar refused it, since he was aware that the divorce suit was already set down for trial in the very near future.
The trial began on 1st May before Mr. Justice Cumming-Bruce, and there was some discussion as to the possibility of a Petition under Section 2 (1) (e) being substituted for the old-fashioned proceedings alleging desertion and counter-alleging cruelty and desertion, but it fell upon the rock that there was a doubt as to whether the husband, who had by now moved to his farm in Scotland, was domiciled in England....
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