Rumbelow v Rumbelow and Hadder
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE HARMAN,LORD JUSTICE SALMON |
| Judgment Date | 25 May 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J0525-1 |
| Date | 25 May 1965 |
| Court | Court of Appeal |
[1965] EWCA Civ J0525-1
In The Supreme Court of Judicature
Court of Appeal
Appeal from Order of Judge Bulger (Special Commissioner) at Cambridge dated 14th October, 1964.
Lord Justice Willmer
Lord Justice Harman and
Lord Justice Salmon.
MR. FRANCIS H. L. PETRE (instructed by Messrs Ellison & Co., Cambridge) appeared on behalf of the Appellant (Petitioner).
MR. BASIL GARLAND appeared on behalf of the Queen's Proctor as amicus curiae
This is an appeal from a judgment given on the 14th October 1964 by his honour Judge Bulger, sitting as a special commissioner of divorce at Cambridge, whereby he dismissed a husband's petition for divorce on the ground of the adultery of his wife with a named co-respondent. The petition was undefended, and the adultery complained of was proved beyond any doubt, but the learned commissioner held himself bound to withhold relief because he found that the adultery had been connived at. In view of the very unusual facts of the case, we thought It proper, when the case was first called on, to ask forthe assistance of argument by counsel on behalf of the Queen's Proctor. In the result, the case has now been fully argued before us on both aides, and I may perhaps be permitted to express my appreciation of the assistance we have derived from counsel's arguments.
The facts proved certainly do disclose a most remarkable state of affairs. This husband and wife were married on the 21st January 1950, since when they have resided at various addresses in Cambridge. Since the date of the marriage the wife has given birth to eight Children. The first three of those children are undoubtedly the children of the husband. The last three are without doubt the children of the co-respondent. In between those children are two others, who were born during a period when the wife appears to have been engaging in sexual intercourse both with the husband and with the co-respondent. The wife has said that those two children are the co-respondent's children, but the husband has always accepted them as children of the family.
About 1952 the husband had the misfortune to suffer from poliomyelitis. Apparently he made a good recovery and has been able to return to work. But the fact is that even today, as I understand it, he still suffers from some measure of disability. That is a circumstance to which the learned commissioner rightly paid some regard when considering the way in which the husband behaved towards the co-respondent.
It was in 1967 that the wife first started going out on her own, and the husband discovered that she was associating with the co-respondent. The association was evidently a fairly close one, and at the end of that year the wife in fact left the husband for period of some three months. She returned again early in 1958, and Shortly afterwards left once more for a further period of some weeks. Again, however, she returned, but after her return she still continued to associate with the co-respondent. About the end of 1958 sexual intercourse between the husband and the wife finally ceased, and the wife moved into a separate bedroom. The twochildren whose parentage has been the subject of soma doubt were born respectively on the 22nd April 1958 and the 5th September 1959. During this period the husband says that the co-respondent was frequently visiting his house to see the wife. On one occasion the husband tried to put him cut of the house forcibly, but having regard to his disability he failed in that attempt.
In the year 1950 the co-respondent actually came to reside in the house as a lodger, and I understand that he has resided in the house ever since. The husband protested at his arrival, but the wife (who seems to have had very great influence over the husband) said that the co-respondent was going to come there whether the husband liked it or not. The husband submitted to the wife's insistence. The co-respondent came, but the husband himself continued to reside in the house. From that time onwards it must have been clear to anyone in the position of the husband that the wife and the correspondent were carrying on an adulterous association: The last three children to whom I have referred were born respective in 1961, 1962 and 1963. Moreover, in 1963 the co-respondent took to sleeping openly in the wife's room, although the husband was still residing in the house.
The wife made a written confession of adultery, and in that she admitted that adultery with the co-respondent started in the year 1957. The husband in fact continued to live in the same house until the end of 1963, when at long last, and on the advice of his solicitors, he left, and shortly afterwards started these proceedings Daring the period of three years and more, when both men were residing in the same house, the husband was apparently taking his meals with the wife and the co-respondent, was talking to them, treating them as fellow members of the household, and generally taking part in the social life of the household. Not unnaturally, when he gave evidence at the trial, he was asked why he had tolerated this situation for such a long time and why he did not himself leave earlier. The only answer which he could give was that he had no proof that the wife was committing adultery with the co-respondent.It is not perhaps surprising that the learned commissioner rejected that piece of evidence given by the husband. Even allowing for his somewhat limited intellectual capacity, to which the commissioner referred, it seems to ma that any sane person in the position of the husband must have realised at least from 1960 onwards what was going on in that household.
The learned commissioner made the following finding. He said: "I am perfectly satisfied that at least from the time when Mrs. Rumbelow became obviously pregnant with the child which was ultimately born on the 30th March 1961 that is, some time, I suppose from about the autumn of 1960 that from that time MR. Rumbelow actually knew that his wife was sleeping with Hadder, and did absolutely nothing about it". He expressed his conclusion in these words: "I think he" (the husband) "was just content with the situation for three years, and it did not give him any worry or anxiety. I cannot say in those circumstances that there has not been connivance, sympathetic though I am, and I am entitled to be sympathetic to the petitioner for one reason or another, but I have to give effect to this statutory requirement".
The appeal to this court has been mainly based on the proposition that there can be no bar to relief on the ground of connivance where the petitioning spouse was ignorant of the inception of the adultery. In the present case the husband, although he was dearly suspicious as to what his wife was doing in 1957, had no knowledge of her adultery with the co-respondent at the time of its inception, nor indeed, on the findings of the learned commissioner, up to the year 1960. He cannot therefore, It is said, be regarded is having connived at the inception of the adultery, and by the time that he knew anything about it it was too late for him to do anything, that submission is founded on the oft-quoted statement of principle by Lord Merriman in delivering the judgment of this court in Churchman v. Churchman (1946) Probate, 44. At page 50 the learned President said this: "The judge did not deal expressly with the question whether he regarded the connivance at the continuance ofthe adultery as amounting by ratification to connivance at the earlier adultery. It would seem that he regarded connivance at any stage of the adultery charged as fatal. The point is of importance, because it is of the essence of connivance that it precedes the event and, generally speaking, the material event is the inception of the adultery and not its repetition, although the facts may be such that connivance at the continuance of an adulterous association shows that the husband must be taken to have connived at it from the first". With regard to that last remark, it may be said that there is nothing in the present case to lead to the view that the husband's connivance at the continuance of the wife's adultery showed that there must have been connivance from the first.
Having read that passage from the judgment of the learned President, I should next read the further passage which occurs on page 52, where he said this: "Much of the difficulty in dealing with the question of connivance arises from the fact that in the past judges have gone beyond the facts of the particular case in an attempt to lay down general principles of wider application. In our opinion it is of the utmost importance to bear in mind that the issue is whether, on the facts of the particular case, the husband was or was not guilty of the corrupt intention of promoting or encouraging either the initiation or the continuance of the wife's adultery; and that the court should not allow its judgment to be affected by importing, as principles of universal application, pronouncements made with regard to wholly different circumstances, and so be led to a conclusion contrary to the justice of the case". It seems to me that that passage prompts two comments. One is that the learned President was there clearly...
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