Slon v Slon
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE DAVIES,LORD JUSTICE SACHS |
| Judgment Date | 16 December 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J1216-4 |
| Date | 16 December 1968 |
| Court | Court of Appeal (Civil Division) |
[1968] EWCA Civ J1216-4
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Park - London)
Lord Justice Harman
Lord Justice Davies and
Lord Justice Sachs
Mr. D. TURKIFF (instructed by Messrs. Dollman & Pritchard) appeared on behalf of the Appellant (Wife, Respondent).
Mr. J.J. DAVIS (instructed by Messrs. Simon Haynes, tucker & Cassels) appeared on behalf of the Respondent (Husband, Petitioner).
I will ask Lord Justice Davies to deliver the first judgment.
This is a respondent-wife's appeal from a judgment of Mr. Justice Park given on the 4th March. 1968, when he dismissed a husband's petition on the ground of cruelty. But, In circumstances that I shall describe shortly, on a fresh petition alleging constructive desertion he pronounced a decree nisi.
It is not necessary for the purposes of this case to go a great deal Into the history of the marriage. It may be stated in this way. The parties were married on the 30th December, 1950, when the husband was 31 and the wife's age was stated on the certificate to be 40, but we have been told that in fact she was 49) so she was 18 years older than her husband. Therefore at the date of the hearing of the petition she was In the late sixties. The husband was a Pole, having come here in 1942 with the Polish Armyi and, apparently, like many other Poles who have been in this oountry, he had not acquired any very great skill In the English language. The wife was in origin a Scotswoman. For a good deal of the marriage she was at work, up until about 1957, in various jobs; and he has always been In work. Their friends, it would appear, were largely Polish people in this country.
Apparently things went reasonably well until 1957. The husband's general complaint from then onward was of neglect of him and of the house the house, being dirty and not looked after, and a refusal to allow Polish guests to come to the house; and (a thing which looms very large in this case) he complained that from 1957 she became increasingly disinclined for sexual Intercourse. As will appear shortly, the judge found that In 1962, but not earlier, she refused to have any more intercourse.
The parties eventually separated in 1963. As I have said, the judge found refusal of sexual Intercourse in November of 1962; and he found that in March, 1963, the wife ejected the husband from her bedroom. They lived for a few months in the house. The husband by June said that the house must be sold (they werejoint owners of the house): and on the 30th November the house was sold, the proceeds were divided, and they have lived separate and apart over since.
The proceedings have been somewhat long drawn out. The hue-band's petition on, as I have said, the ground of cruelty, was dated the 5th August, 1964. In January of 1965 the wife filed her answer. She denied cruelty and she cross-prayed for a decree of restitution. In May of 1967 she amended her answer, struck out her prayer for restitution, and made a cross-charge of adultery, not praying for dissolution on that ground but suggesting that, as the husband had committed adultery (as she alleged) and had not prayed for discretion, that would be a bar to relief. The lady who was named in the wife's answer Intervened and denied adultery, as did the husband in his reply.
The hearing started on the 27th February of this year. On the third day, before the learned judge had given judgment but after both learned counsel had addressed the court, it would appear that the Judge was of the opinion that the charges of cruelty had not been made out, though he had not, as I have said, delivered his judgment.
I read the transcript at page 21 of the Third Day. After the addresses of counsel, as I may, the judge said: "Do you not think that costs would be saved in this case if it was on the ground of desertion?". "Yes, my Lord", said Mr. Davis, for the husband. The judge said: "I think the bent thing for as to do is to go away for a few minutes, you come back and ask for the appropriate leaves, and I will give them. I would like to know what they are, and I will give judgment to-morrow, or Monday". Mr. Davis said "Yes". Then when the judge returned learned counsel said: "My application to your Lordship la that leave to file a petition on the ground of desertion should be granted, and your Lordship to agree the time for entering appearance, and for setting it down so that the matter can come before your lordship on Monday. My learned friend Informs me that he wishes to file an Answer which would contain a denial of the desertion". Mr.Turriff said "That is so": and that was done.
As a result of that, on the 1st March the husband filed a second petition, alleging desertion from 1963; and the wife filed her answer denying it.
In the event, the learned judge rejected the husband's account of neglect of the home and neglect of main and the other matters which I have indicated in outline relied upon by the husband to support his allegation of cruelty. He rejected the wife allegation of adultery. It is very important to note (I do not think it is necessary for me to read the passage from his judgment) that, despite medical evidence that had been called on behalf of the husband to suggest that he had suffered in health by reason of his wife's conduct, the learned judge rejected that evidence. He said: "I am not satisfied that any ill-health from which he suffered was caused or even contributed to by any conduct on the part of the wife". But, as I think I have already indicated, he found ae a fact that (not in 1961, as the husband alleged) from and after November of 1962 the wife did refuse to have sexual intercourse with him - the reason for that refusal being her unwarranted (as the judge found) suspicions that he was carrying on an adulterous affair with the Polish woman - and that in March of 1963, that Is to say some four months later, she finally ejected hint from her bedroom and refused to have sexual intercourse any more with him. But with regard to that he made this express findings "There is no evidence that that refusal of sexual intercourse caused injury to the petitioner's health. In my view the allegations of cruelty fail also". But he came to the conclusion that the husband was entitled to a decree on his fresh petition, that dated the 1st March, 1968 — well outside the three years period, of course, from 1963 — and that the refusal of sexual intercourse and the eviction from the bedroom by the wife in 1962 and 1963 amounted to conduct which could properly be described an driving the husband from the home and entitling him to a decree on the ground of constructive desertion.
I think it is right that I should read the last page of thejudge's judgment. "Mr. Davis on behalf of the husband has argued that on the evidence the respondent has persistently neglected the husband and the home and has refused sexual Intercourse knowing perfectly well that such conduct adversely affected the petitioner's health and in those circumstances she has been guilty of cruelty.
"The evidence, in my view, goes nowhere near establishing such a state of affairs. The wife did not neglect the husband or the home. She did refuse sexual Intercourse from about early 1963" — he had got it wrong there: he actually found November, 1962 — "because she believed on wholly Inadequate grounds that the petitioner was committing adultery with Mrs, Serafin. There is no evidence that that refusal of sexual intercourse caused Injury to the petitioner's health. In ray view, the allegations of cruelty fall also. But, in my judgment, when the wife deliberately refused sexual intercourse, and later made the husband sleep in another bedroom, she knew that that decision severed the only link which bound them together* She did not take and persist in that course because she was incapable of sexual Intercourse, or because she herself had lost interest in their physical relationship. She did so, I think, in order to punish her husband for having what she believed was an adulterous affair with Mrs. Serafin. There is no evidence that he was having any such affair, or no evidence on which I feel I can rely. She knew that her refusal of sexual intercourse would inevitably make and made married life impossible and would bring the marriage to an end, as it In fact did. in the circumstances of this marriage her refusal of sexual intercourse was indeed a grave and weighty matter.
"For these reasons I think that the wife In 1963 by her conduct brought cohabitation to an end and made inevitable the sale of the matrimonial home. I think for those reasons she deserted her husband. I find some support for that view from the last few lines of the wife's second letter to her husbandry solicitors. She writes that: 'As I said before If Mr. Slon had waited andsued for desertion I would never have contested this action as sty only wish was that I never saw him as long as I live'. That sentence truly reflected her feelings for her husband in 1963". And, as I say, the learned judge granted him a decree on the ground of desertion.
I would add, with regard to this matter of sexual intercourse, that the point has been mentioned in the course of the argument that this lady in 1963, when the break-up of the marriage came, was some 62 years of age, and it was suggested that perhaps in the ordinary course of nature a lady of that age might on any view be disinclined for very much sexual intercourse. But Mr. Turriff, who has been most fair in his facing up to the facts in this case, admitted that there was evidence here that this lady, despite her age, was very keen on sexual intercourse — as indeed was the husband. They used to have Intercourse very often. And after she had...
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