Stanwick v Stanwick
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE WIDGERY,LORD JUSTICE KARMINSKI |
| Judgment Date | 23 October 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J1023-5 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 October 1970 |
[1970] EWCA Civ J1023-5
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
From: Judge Michael Lee (Winchester County Court)
Lord Justice Davies
Lord Justice Widgery and
Lord Justice Karminski
MR P. H. DANBURY (instructed by Messrs. Mills Henderson & Co., Guildford) appeared on behalf of the Appellant (Petitioner).
MR A. B. EWBARK appeared on behalf of the Queen's Proctor.
This is an appeal by the Petitioner in an undefended divorce case from an Order of Judge Lee made on the 21st January of this year at Winchester, when he dismissed the husband's petition for dissolution of the marriage on the ground of the wife's alleged cruelty. The appeal first came before this Court on the 24th June last, and having heard an argument from Mr Danbury for the husband-appellant - the Court being then differently constituted, as Lord Justice Sachs was sitting with Lord Justice Karminski and myself, and not Lord Justice Widgery - we adjourned the case in order that we might have the assistanceof the Queen's Proctor to help us in the particular circumstances of the case.
The history of the marriage can be very shortly described. They were married in June, 1947, they have had six sons, of whom the three youngest are now 12, 8 and 4. The marriage finally came to an end in October, 1968, when the wife left the matrimonial home, leaving these three young boys with their father, and telephoned her husband to say that she was never coming back and that she was in love with another man. That was the final end. But according to the husband's evidence, all of which the learned Judge unreservedly accepted, she had left him for varying periods on a number of previous occasions, perhaps three or four, and on each occasion he Was left to look after the family.
The nature of the acts relied upon by the husband can, I suppose, be described as a persistent course of irresponsibility and dishonesty with regard to money matters. As long ago as 1950 she was convicted of forgery and false pretences. That, although not described with any particularity in the husband's evidence, appears to have been due to the fact that he put her in funds to pay for some china which they had been buying from a mail order firm, and instead of paying the instalments on this purchase she used the money for other purposes; and in order to deceive her husband she forged receipts, purporting to be receipts given for payments made by her to the mail order firm. As a result of that, as I say, she was convicted of forgery and false pretences. But it did not stop there. She was constantly, according to the husband, stealing cheques from his cheque book, forging his signature on them, and I suppose obtaining cash and, in some cases, goods on such cheques. There were in evidence four cheques of that kind given to a well known store in London. On another occasion, when he had in his possession in his wallet some money which was the property of his employers and for which he was accountable, she stole money from thatwallet. It would appear that that conduct continued really throughout the marriage. It caused him the greatest embarrassment, of course, with the firms to whom she had given these forged cheques, embarrassment with his bank and embarrassment with his employers, he had from time to time to borrow from his A employers to pay off the debts which she had failed to pay off, having used the money for other purposes, and he also had to get loans from the bank. Eventually the bank refused to lend him any more
That, obviously, is a perfectly shocking story of misconduct by the wife. The learned Judge, as I said, accepted the husband's evidence. The husband said that this conduct rendered him unwell. There is evidence in an affidavit from the doctor that early in 1968, about February, and later in the same year, in the Autumn, the husband attended him and was in a state of tension; and sedatives had to be prescribed. There was also evidence from his employers that on a number of occasions he had to be away from work owing to domestic difficulties, and was away for one period for a whole month.
The learned Judge, as I have indicated, when Mr Danbury closed his case, said: "I accept everything he said. The case is clearly made out. But so far as cruelty is concerned", and on then he went on to discuss whether or not, accepting as he did that the husband's health was injured, the conduct which was proved by the husband could in law amount to cruelty. I shall read, in a moment, the passage in which he decides that question, but I find it a little difficult to understand really what the ratio of the judgment is. It would seem, in the end, that what the learned Judge is saying is that the intrinsic nature of this conduct, however serious it was, however it affected the health of the husband, could not, in law, amount to cruelty.
The concluding passage of his judgment is in these terms: "What is cruelty? In this Court Counsel has urged upon me - by reason of Gollins v. Gollins" - that, of course, is the well-known case in 1964 Appeal Cases, p. 644 - "that conduct which in fact causes a deterioration in the health of a Petitioner is cruelty. With respect, I think that goes too far. I think it could be cruelty, but one has to look at the whole matter. Cruelty is cruelty, and although a deliberate...
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