THE REVIVAL OF A MATRIMONIAL OFFENCE BY SUBSEQUENT MISCONDUCT

AuthorRupert Cross
Publication Date01 Jul 1945
DOIhttp://doi.org/10.1111/j.1468-2230.1945.tb02707.x
REVIVAL
OF
MATRIMONIAL
OFFENCE
I
49
THE
REVIVAL
OF
A
MATRIMONIAL
OFFENCE BY SUBSEQUENT MISCONDUCT
INTRODUCTION.
Is desertion
for
a period
of
less than three years, which
is
not
of
itself a ground
for
divorce
or
judicial separation,l sufficient
to
make a condoned rnatrinionial offence which is a ground fur divorce
the foundation
of
successful divorce proceedings? This question,
which had recently been the occasion
of
conflicting decisions by
Pilcher,
J.,
and Barnard,
J.,
in the respective cases
of
Higgins
v.
Higgins
and
Banistev,2
and Ainley v. Ainley?appears to be
of
sufficient sociological
and legal interest to justify reexamination of the doctrine of the revival
of
a
condoned matrimonial offence by subsequent misconduct.'
In the first case mentioned above the petitioner was the husband,
who proved adultery in July,
1941,
against his wife, which he condoned
in August,
1941.
During this month she deserted him and he succeeded
on a petition presented to the court in November
1941
in which no
further adultery was alleged against his wife. In the second case the
unsuccessful petitioner was the wife
;
the cohabitation following her
condonation
of
her husband's adultery was for a considerably longer
period, as was her husband's subsequent desertion. The latter, however,
had not endured for the three years immediately preceding the pre-
sentation
of
the petition, which
is
requisite for an independent ground
for divorce: and, from the point
of
view
of
the principle involved in
the question put above, factual differences between the two cases can
be ignored.
For
the sociologist interested in family law, that question
is
im-
portant, because it involves the relative position
of
spouses after a
matrimonial offence which
is
a
ground for divorce has been forgiven,
without anything
in
the nature
of
an undertaking not to rely upon it
in
any future proceedings such as that involved in the case
of
Rose
v.
Rose.0
This is more often to be found in separation deeds than
as
a
a
term
of
reconciliation with which this article is primarily concerned.
Are
they to be treated for all purposes as being in the same position
as
they were in when they started at marriage? or should the law
applicable to spouses in general be modified in their particular case
?
The objection to this method
of
approach, which might be based on
the view that when the court gives relief on the ground
of
a
matrimon-
ial offence which has been condoned and revived by subsequent
Judicature Act 1925. Section 176, Section 185; Matrimonial Causes Act,
1937, Section
2,
Section 5.
Ainley
v.
Ainiey
(1945) 61 T.L.H.
201.
The case
of
Heard
v.
Beard
(1945).
61
T.L.R. 356, in which
Hodson,
J.,
followed
Ainiey
v.
Ainley
in preference to
Higgins
v.
Hzggins
and
Banister,
was
decided after this paper was in proof.
4
In
the view
of
Barnard,
J.,
the use
of
the term "matrimonial offence"
in
this
context has led to confusion (61 T.L.R.
201).
The term is therefore avoided
SO
far as the acts relied
on
as bringing the doctrine
of
revival into operation are
concerned.
*
Judicature Act. 1925, Section 176; Matrimonial Causes
Act,
1937.
Section
2.
a
Higgins
v.
Higkins
and Banisfer
(1943)
P.
58.
Rose
v.
Rose
7
P.D.
225
;
8
P.D.
98.

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