Russell v Russell
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JENKINS,LORD JUSTICE BIRKETT |
| Judgment Date | 31 January 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J0131-1 |
| Court | Court of Appeal |
| Date | 31 January 1956 |
[1956] EWCA Civ J0131-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Jenkins and
Lord Justice Birkett
Mr T.R. CRAWFORD (instructed by Messrs Watkins, Pulleyn & Ellison, Agents for Messrs Hepherd, Winstanley & Pugh, Southampton) appeared on behalf of the appellant husband.
Mr JOHN G. WILLERS (instructed by Messrs Jaques & Co., agents for Mr John W. Richardson, Christchurch) appeared on behalf of the Respondent Wife.
This is as appeal from an order of Mr Commissioner Blance White dated the 21st November, 1955, refusing an application of the petitioner husband, Henry Thomas arthur Russell, for the discharge of an undertaking he had given to the court at the hearing of divorce proceedings between himself and his wife, Phyllis Russell. The learned Commissioner held that there was no ground for discharging this undertaking, which related to the maintenance of the wife and the infant child of the marriage, and from that decision Mr Russell now appeals to this Court.
The case is in some respects an unusual one. It appears that on the 8th August, 1947, the wife obtained from the Justices at Southend am Order for maintainence for herself and the infant child of the marrige, on the ground of the husband's desertion. There was one small child of the marriage, born on the 24th May, 1947. On the 24th and 25th April, 1952, Mr. Commissioner Blance White heard the relevant proceedings between these spuses. The matter came before him as a petition by the husband for dissolution of his marriage to the wife on the ground of the wife's cruelty and constructive desertion. The husband on this occasion was represented by Counsel: the wife appeared in person. She filed an answer to the petition, but did not include in that answer any cross-prayer for relief. In the course of his opening of the cse, Mr. Marshall Reynolds, who was the Counsel representing the petitioner husband, asked for leave to amend the petition by substituting a reference to desertion for a referende to wilful neglect to maintain the Respondent in the description given in the petition of the proceedings before the Magistrutes. In the course of Counsel's opening, Mr Commissioner Manco White commented. "There is no relief claimed in the answer. That is on purpose, is it? There seems to be an Order in the policeCourt that your husband deserted. Supposing when I have heard all the evidence in this case I case to the some conclusion, that your husband deserted you, will you be wanting a decree of divorce?", to which the Respondent answered "so". Then: "(The Commissione): You do not want to be divorced? (The Respondent): No. I am just defending the case". Then in due course Mr Marshall-Reynolds called the Petitioner; but, before he embarked on his evidence, he said this: "It may unfortunate that she" - tht is the Respondent — "has not been able to have proper advice because she may lose emaintenance and things like that. I do not know and, of course, I am not in a position to discuss matters with her". The Commissioner said "It is all very difficult". Then Mr Marshall-Reynolds proceeded with the examination of the Petitioner, and I think it is pretty plain to anyone reading it that the Petitioner's prospects of obtaining a decree on the ground either or cruelty or of constructive desertion were somewhat remote. The Commissioner ultimately interviewed and said to Counsel. Mr Marshall-Reynolds: "Do you not think you had better have a conveersation with the Respondent in this case and point out that she might on consideration amend her claim?" Then the Commissioner had another word with the Respondent and said to her: "You had better talk privately to Mr Marshall-Reyolds. He has a lot of expeience and he is a very nice gentleman". Mr Marshall-Reynolds said "perhaps the Associate will be there at the same time", and the Commissioner said "Yes". The proceedings were then adjourned to the next day, and Mr Marshll-Reynolds said of the Respondent: "I spoke to her yesterday and she has considered the matter and she has decided to amend her answer. I have written out the amendment and handed it to the Associate, which she had signed. By the amendment she alleges that the Petitioner has desorted heras from the 24th July, 1947. (The Commissioner): That is the same date correspondent with the Police Court Order". Than Mr Marshll-Reynolds said "Yes, that is the day that he left the house". The Commissioner asked the Respondent if she had had an opportunity of considering it. The Respondent said "Yes". Then, said the Commissioner: "I think personally, that the course you have adopted is, under the circumstances of this case, the course that counsel would have advised you to adopt if you had had Counsel advising you, because your marriage has really come to an end and the beat thing you can do is to protect your position as far us money is concerned. Do you follow?" A little later on in the transcript Mr Marshall-Reynolds said: "Mrs Russell was worried about her maintenance. she thought if the marrige was dissolved she would probably lose her maintenance and my client has never wished that at all and he is ready to give an undertaking that he will not apply to have the maintenance of the wife reduced below 30/-. She is already getting that - uless, of course, he is out of work. He will give an undertaking to that effect and he is also willing to consent that the maintenance for the child, which is now 10/-, should be £1 a week". I should have mentioned, with reference to the Mgistrates' Order, that the initial Order made by them was £2 a week for the wife and 10/- for the child and that the weekly payment for the wife had been subsequently reduced to £1. 10. Od.
Then the Respondent was put in the witness box to prove her case, Mr Marshll-Reynolds having said, after he had mentioned the advice he gave to the lady and the undertking that the husband was prepared to enter into. "In the circumstances I do not propose to call further evidence or to cross-examine the Rspondent". The Respondent than formally proved the case necessary to substantiate her claim introducedby amendment for a decree on the ground of desertion. The Commissioner commented "I think that proves the case". Mr Marshall-Reynolds said "Yes". Then the Commissioner said: "The Prayer of the petition will be rejected, there will be a decree nisi on the Anser on the ground of desertion, and an Order for costs, and the undertaking as to maitenance will be noted on the file". In fact, the undertaking as to maintenance, as well as being noted on the file, was incorporated in the formal decree. In the form in which it was noted on the file, it was in those terms: "I, Henry Thomas Arthur Russell, of Ferncot, Stock Road, Billericay, in the County of Esser, the above named Petitioner in these proceedings, hereby undertake that in the event of my mariage to the Respondent. Phyllis Russell, being dissolved, Ishll not apply to have the existing Mintenance Order in favour of the Respondent for the sum of £1. 10. Od. weekly reduced unless I am out of work and unable to earn aything, and that I shall forthwith increase the existing Maintenance Order in favour of Christopher Henry Russell, the child of the marriage between myself and the said Respondent, for 10/- weekly, to the sum of £1, making a total of £ 10. Od. in "11", dated the 25th April, 1952, signed by the Petitioner, addressed "To this Hoourable, court and to the above named Respondent". According to an endorsement on the documet made by (I take it) the Petitioner's Solicitors and initialled "W.P. & E." the undertaking was duly filed in the Divorce Registry.
The decree was made absolute on the 18th Spetember, 1952. The Petitioner re-married on the 25th March, 1953, and a child was born of that marriage on the 28th May, 1954. At the time when the Petitioner deserted the Respondet, it was quite plain that he was doing so in order to live with another women, and it appears that he must at the time of the divorce proceedings have been anxious to get rid of his wife,the Respondent, in order that he might be free to re-marry. It may be that he woman he married on the 25th March, 1953, ws the same woman as the one for whom he left his wife, the Respondent. It may be it is different women: ad I do not think is greatly affects this case, except, of course, that so far as the Petitioner's application for discharge of his undertaking is based upon change of circumstances, the fact that at all material times he had a woman to keep, whether hsi lawful wife or not, would tend to weaken any case he might seek to make in reliance upon his re-marrige and the birth of the child as a change of circumstances rendering it difficult or imprcticable for him to pay the maintenance which he undertook to pay.
On the 12th May, 1955, the Petitioner, having fallen into arrears with the maintenance, was summoned to appear before the Justice in southampton, whither he had moved from Southend. He requested a variation of the paymets in a downward direction, but he found he could not successfully do that by reason of the undertaking he had given to the Court. In those circumstances, he mde the application in the divorce proceedigs to which the present appeal relation: and, as I have said, Mr Commissioner Blanco White refused his application, after going briefly into the facts, he said this: "I see no ground to discharge that undertaking. After all, the undertaking was no doubt the result of conversations with the wife and a wife whose marriage has been dissolved may very well want to be protected, if she can, against the very thing that has happened, namely that the husband shall rre-marry and have some more children by another woman. However, that is more speculation. All I know is that this undertking was volunteered to the Court on the advice of very experienced...
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