Santos v Santos
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE SACHS |
| Judgment Date | 16 February 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J0216-1 |
| Date | 16 February 1972 |
| Court | Court of Appeal (Civil Division) |
[1972] EWCA Civ J0216-1
Lord Justice Davies
Lord Justice Sachs and
Mr Justice Ormrod
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: His Honour Judge Arthur Cohen - London)
Mr. M.P. PICARD (instructed by Messrs. Stanley Jarrett & Co.) appeared on behalf of the Appellant (Wife, Petitioner).
Mr. ANTHONY EWBANK (instructed by the Queen's Proctor) appeared as amicus curiae.
Lord Justice Sachs will deliver the judgment of the Court.
This is the petitioning wife's appeal against the dismissal on the 15th July last by His Honour Arthur Cohen of her undefended petition for dissolution of marriage. The petition was brought under section 1 and section 2 (1) (d) of the Divorce Reform Act, 1969, that is to say, the petitioner alleged the irretrievable breakdown of the marriage as shown by the fact that the parties had lived apart for a continuous period of two years immediately preceding the presentation of the petition and the husband consented to the grant of a decree.
The appeal first came before the court, differently constituted, on the 11th November last. Then, after having heard the submissions of Mr. Picard for the appellant, it became apparent that it raised a very important issue as to the meaning of the words "living apart" in section 2 (1) (d). Does this relate simply and solely to physically not living under the same roof, or does it import an additional element which has been referred to in various terms - "absence of consortium", "termination of consortium", or an "attitude of mind" - phrases intended to convey either the fact or realisation of the fact that there is absent something which is fundamental to the state of marriage. It was accordingly decided to refer the case to the Queen's Proctor for enquiry and such assistance as he considered that he could offer to the court. The appeal came on again for hearing on the 16th December, when the Queen's Proctor was represented by Mr. Ewbank, who presented to the court the result of a great amount of research in a most learned and interesting set of submissions - for which we are much indebted.
At the outset it is as well to state that the issue onwhich the Queen's Proctor's assistance was sought was one to which the learned County Court judge was neither asked to turn his mind or in fact considered. On the contrary, the appeal has been put before us on the footing that the case was one in which he had concerned himself solely with physical separation and had throughout dealt with it on that footing - despite a passage in his discussions with counsel that referred to the wife's attitude of mind. It was also common ground before us that, as appears a little later in this judgment, if in law he was correct in adopting that approach, then he fell into error in refusing a decree - for he was never referred to section 3 (5) of the Act, which deals with periods of living together that ought not to be taken into account.
The facts as put before the trial judge were as follows:
The parties were married on the 30th April, 1960, being then respectively 25 and 19 years of age, The husband is a Spaniard, domiciled in Spain. They have one child, a boy, born on the 3rd December, 1963. There is no doubt on the evidence that the wife had been ordinarily resident in England for three years immediately preceding the commencement of the proceedings, though it was a somewhat close-run thing. The court had, therefore, jurisdiction to entertain the petition.
The evidence called on behalf of the wife, that of herself alone, before the learned judge was somewhat slender. This may have been due to the fact that her learned counsel, who considered that only physical separation was relevant, may have thought that her case was completely straightforward and that no difficulties could possibly arise in the way of her obtaining a decree. We shall attempt to summarise the evidence, such as it was.
The husband owns a hotel, a club and a discotheque at Sitges in Spain. And it would appear that during the marriage theparties lived largely in Spain. In October, 1966 (transcript 3"D") or November, 1966 (transcript 6"C") the wife left the husband and returned to this country. She left her son in Spain with his father. She offered very little explanation for this separation. Her only evidence on the point was (transcript 4"G"): "(Q) As far as love for your husband is concerned, do you still have any love for him? (A) No, I do not. (Q) How is it that you lost your love for your husband? (A) Because he hurt me so much. He was running around with other women while we were living in Spain, just at the end of our marriage, while we were living together". She gave no evidence at all as to any conversations or discussions which she may have had with her husband immediately prior to her departure or, indeed, at any other time.
About a month after her return to this country in the autumn of 1966, the husband came here and, it would seem, though there is no specific evidence about it, stayed with her in her flat. After that, for purposes not specified, she went to South Africa and eventually returned to this country on the 30th Larch, 1968. She gave no evidence at all as to where or for what purpose she went to South Africa.
It would appear (transcript 3 "F") that the husband was in this country when she returned from South Africa. At any rate, on her return she stayed with him in the same flat for some five days before he returned to Spain.
Then came a matter which troubled the judge a good deal. On three occasions since 1968 she has been to Spain and occupied the same room as her husband; for one week she actually occupied the same bed, though she denied ever having sexual intercourse with him since, it seems, 1966.
In the summer of 1969 she was at Sitges for about a month to see her son and during that time again shared a bedroom withher husband at his flat. She made a similar visit in the same circumstances in the summer of 1970. Then at Christmas, 1970, she again visited Spain. On this occasion she did not see her son; but she spent a week at Sitges as before and went on for a week to Andorra, where they shared a bed in a hotel belonging to a friend of her husband.
With regard to that last period she was asked by her counsel:
"What was your husband's feeling towards you during that holiday you had together at Christmas?", and she replied: "My husband thought it was a last chance to get me back, knowing that I would probably try to get a divorce this year. He thought it was his last chance to try to persuade me to go back with him. We had a lot of arguments during that holiday and I wanted to leave Spain, but I could not get out of Andorra because we were snowed in over Christmas and I had to stay. I had no choice".
The learned judge, as already indicated, was somewhat concerned as to the effect of those visits. He need not have been, even if he rejected and disbelieved the wife's evidence as to; the absence of sexual intercourse, had his attention been called to the provisions of section 3 (5) of the Act, which it was not. That sub-section, so far as material, provides as follows: "In considering for the purposes of section 2 (1) of this Act whether….the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of….any two or more periods (not exceeding six months in all) during which the parties resumed living with each other…."
It is that provision which has led Mr. Ewbank rightly to concede that the three periods during which the wife consorted with the husband in Spain, even if coupled with sexual intercourse, would have been no bar to the success of her petition provided that she was living apart from him for the rest of therelevant two years.
The learned judge gave no formal judgment. But it is apparent from the discussion that took place between him and counsel after the conclusion of the evidence that the main ground on which he refused a divorce related to the periods when the parties were together in Spain coupled with a conclusion that he had not been told the full truth by the appellant. The passage, already mentioned, which refers to the state of her mind will be considered later.
Section 1 of the Divorce Reform Act, 1969 , provides that the sole ground upon which a petitioner can secure a divorce is by proving that the marriage has irretrievably broken down. But as a condition precedent to securing a. divorce on that ground the petitioner has to satisfy the court of facts that come within one or other of the five heads specified in section 2 (1) (a) to (e). Once such facts are proved, a presumption - in practice a strong presumption - is raised that there has been a breakdown which is irretrievable; though it is open to the respondent under section 2 (3) to show that that is not the fact.
Under section 2 (1) a petitioner who, as in the instant case, relies on head (d) must satisfy the court "that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted".
When considering the meaning of "living apart" in that head it is, of course, necessary to have regard both to the scheme of the Act as a whole and to any specific provisions dealing with that meaning. It is thus convenient at this stage to recite in full some of the further provisions of section 2 of the Act. Section 2 (1) commences: "The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably"unless the petitioner satisfies the court of one or more of the following facts, that is to say…." There follow the five heads,...
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