Simpson v Simpson
| Jurisdiction | England & Wales |
| Judge | Lord Justice HODSON |
| Judgment Date | 01 June 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0601-1 |
| Court | Court of Appeal |
| Date | 01 June 1954 |
[1954] EWCA Civ J0601-1
In the Supreme Court of Judicature.
Court of Appeal.
Divorce
Lord Justice Denying and
Lord Justice Hodson
Mr. BERNARD LUWIS (instructed by Messrs. Sidney Davidson & Co.) appeared on behalf of the Appellant husband, Applicant below.
Mr. ROBERT HANNAY (instructed by Messrs. Charles Caplin & Co.) appealed on behalf of the Respondent wife, Respondent below.
Lord Justice DENNING: This is an application for leave to present a Petition for divorce within three years of the marriage. The marriage was on the 11th December, 1952, and this application is made in February, 1954. The wife wishes to lodge a Petition of many paragraphs alleging that her husband was cruel to her. Acts of physical violence are alleged and threats, even threats to kill her. It is common ground that, if the Petition were taken at its face value without further enquiry, there would be a case of "exceptional hardship" suffered by the Petitioner, or of "esce" tional depravity" on the part of the Respondent.
But the question that has arisen for decision is whether the Petition is to be taken at its face value, or whether the Court is entitled to look at the Affidavit sworn by the husbena in answer to it. The husband has sworn an Affidavit in which he exhibits two letters written by the wife which contsin Statements apparently inconsistent with the allegations of cruelty. For example, in March, 1953, at & time when, according to new Petition, she had been already trusted with violence on three occasions, she wrote a letter to him saying: "You are always kind and very good to me", and "To me you are all my life needs and all I want", and "I still love you just like I used to write". In November, 1953, at a time when, according to her Petition, most of the acts of cruelty had already taken place, she wrote an affectionate letter to him, sending him all her love, followed with kisses.
The Section says that a judge may allow a Petition to be presented within three years on the groud that the 'case' is one of exceptional hardship or of exceptional depravity. The judge in this case read that as meaning that "the case as made in the Petition" must be one of exceptional hardship or exceptional depravity. He said that it was not for him "to enter into the possibility of the allegations being untrue", or "to
go into the likelihood of the case being established". He thought that he could only look at the Petition of the petitioning wife and her Affidavit in support of it, and he could not have regard to the husband's Affidavit in answer. In my opinion, that is not a correct interpretation of the Section. If one looks at the observations of Lord Justice Goddard in Winter v. Winter (1944, Probate, p. 72) at p. 75, and of Lord Justice Tucker in Charlesby v. Charlesby (176 Law Times Reports, p. 534) there can be no doubt, I think, that a judge on one of these applications is not confined to the Petition and the Affidavit in support but can look at the Affidavit in answer also. If the Affidavit in answer is destructive of the Petitioner's case, the judge will dismiss the application. Even if it is not altogether destructive of the Petitioner's case, but only throws doubt on it, the judge is entitled to have regard to that doubt in coming to his decision whether to grant leave or not.
It seems to me therefore that the judge was wrong in his ruling in point of law. He should have exercised his discretion upon the Affidavits as a whole. That he did not do. In these circumstances, the judge not having exercised his discretion, and all the material being before us, it is for this Court to exercise its discretion. In exercising our discretion, we must have regard to the letters which the wife wrote, and also consider the question of reconciliation. In all applications of this kind the possibility of reconciliation is a most important aspect of the case. The letters, some extracts of which I have read, show that at one time the wife was very much in love with her husband. The husband says that her complaints are largely hysterical and may respond to treatment. He says that if she were treated it would be possible for them to resume a normal married existence. In those circumstances, it seems to me that there is a possibility ofreconciliation, and it is not one of those cases where we should give leave to present a Petition within three years.
It was suggested that we might send the case back se that the wife might supplement her Affidavit by further material. That is not a course which we should encourage. These applications are not meant to be preliminary trials. They are meant to be dealt with simply and inexpensively. There should be an Affidavit on each side, but there should not be Affidavits plea upon Affidavits. We ought not to send the matter back for the filing of further Affidavits, but we ought to decide it on the material before us.
I think this appeal ought to be allowed, and the application to ledge the Petition within three years should be...
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