Sodomy As A Ground For Divorce
| Published date | 01 January 1960 |
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00573.x |
| Date | 01 January 1960 |
SODOMY
AS
A
GROUND
FOR
DIVORCE
THE
Court of Appzal in
Bampton
v.
Bampton
has granted leave
to appeal to the House of Lords and
so
opened the way to the
first
‘‘
summit
”
consideration of the decision in
Statham
v.
Statham
in its thirty years of existence. The appeal will test the
validity of the holding that consent to an act of sodomy,
or
later
condonation of the act, bars relief on that ground in
a
suit for
divorce.
It
is the purpose of this note to speculate about the
possible outcome of the appeal and to discuss some of the factual
and policy conflicts which will confront the House of Lords.
The marriage in question in
Bampton
took place in
1953,
when
the husband was twenty-five and the wife nineteen. Ordinary
marital relations continued for some two years and then the husband
first attempted to commit sodomy on his wife in April
1955.
She
was then pregnant with their first child, which was in fact born in
June
1955.3
The first attempt was unsuccessful because of the
wife’s resistance but the husband persisted in his efforts
six
or
seven times in the course of the next two years and was successful
cn about five occasions.
“
Normal
”
sexual intercourse and sundry
other varieties of sexual experimentation also took place during
this period. The wife gave birth to two children, on each occasion
with great difficulty and, to avoid the danger of further pregnancy,
she was sterilised in
1957.
At the time of her petition for divorce,
husband and wife had separated, apparently as a result of the
husband’s clandestine associations with other women and his
increasing coolness towards the wife. After his callous insistence
on sexual intercourse immediately after she had had an operation
and
his
deceitfulness about
his
relations with another woman,
she finally would have nothing more to do with him.4 Barnard
J.
got the impression that she did not want to end the marriage at all,5
despite the fact that
it
was she who petitioned
for
divorce on the
ground that the husband had committed sodomy on her. Both at
first instance and in the Court of Appeal, her petition was denied,
leaving her with the possibility of success
in
the House of
Lords,
or
the expense of further proceedings based on matters not investi-
gated by the lower courts.6
1
[1959] 2
All
E.R.
766.
2
[1929]
P.
131.
3
The fact that regular sexual relations might have been difficult or obstetrically
undesirable at this stage
of
the wife’s pregnancy may well be significant
in the husband’s wish for sodomical intercourse at this time. His continuation
of
the acts once the temporary emergency had passed, however, means that
he could not rely
on
this fact as affecting the overall issue.
4
[1959] 2
All
E.R.
at
767
F.
5
Ibid.
767
G.
6
Ibid.
771
F-H.
48
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