Tumath v Tumath
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SALMON |
| Judgment Date | 02 December 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J1202-1 |
| Date | 02 December 1969 |
| Court | Court of Appeal (Civil Division) |
[1969] EWCA Civ J1202-1
In The Supreme Court of Judicature
Court of Appeal
Appeal by the husband from Order of His Honour Judge Grant in Chambers dated 23rd July, 1969.
Lord Justice Salmon
Lord Justice Edmund Davies and
Sir Gordon Willmer.
Mr. JOHN MORTIMER, Q. C, and Mr. P. T. HOPKIN MORGAN (instructed by Messrs. Prentice Kirkwood & Co.) appeared on behalf of the Respondent, Thomas Melville Tumath, appellant.
Mr. NORMAN LERMON, Q. C., and Mr. QUINTIN IVII (instructed by Messrs. Hanchett Copley & Hails of Edgware, Middlesex) appeared on behalf of Pamela Sophy Tumath.
On the 11th July, 1959, the appellant husband married his wife, the respondent to this appeal. There are no children of the marriage. On the 4th September, 1968, the wife petitioned for divorce on the ground of her husband's adultery praying the, Court to exercise its discretion in respect of her own adultery committed during the marriage. The Petition alleged adultery by the husband with Mrs. Doreen Lucy Knight on numerous dates between March 1968, and the date of the Petition and it, of course, contained the usual allegations that the Petitioner had not in any manner been accessory to or connived at or condoned her husband's adultery and did not present the Petition in collusion with him or with Mrs. Knight.
The wife, in her discretion statement dated 21st October, 1968, said that her husband had told her in 1966 of occasions when he had had sexual intercourse with a Mrs. Rawlins; she also said that her husband had advised and encouraged her to have sexual intercourse with Mr. Rawlins and that as a result of what her husband had said to her she did have sexual intercourse with Mr. Rawlins on four occasions in 1966. A notice was served on the husband by the wife's solicitors dated the 25th October, 1968, in the following terms: "We hereby give you notice that the Petitioner in her discretion statement alleges that the Respondent Thomas Melville Tumath conduced the adultery with Mr. Peter Rawlins and further that the Discretion Statement contains an allegation that the said Respondent admitted his adultery with Margaret Rawlins the wife of the said Peter Rawlins". The husband did not defend the Petition. Indeed he had no defence to any of the allegations it contained and, as the marriage had irretrievably broken down, he had no wish that the Court should refuse to exercise its discretion in his wife's favour. On the 22nd November 1968, the Petition was heard and after evidence by the wife (including evidence verifying her discretion statement) and evidence by an inquiry agent, a decree nisi was duly pronounced.
When subsequently the wife's proceedings for maintenance came before the County Court Heglstrar, it became apparent that the husband wished to give evidence; 1. that his wife had deserted him in June, 1967, before his adulterous association with Mrs Knight commenced; 2. that he had not conduced to his wife's adultery; and 3. that he had not confessed to any adultery with Mrs. Rawlins. It was contended on behalf of the wife that her husband was precluded from giving such evidence. The Registrar adjourned the matter to the learned County Court Judge for decision. The learned County Court Judge decided in favour of the wife and ruled that the husband was precluded from giving evidence of any of the three matters to which I have referred. Prom that decision the husband now appeals.
The learned County Court Judge seems to have based his decision partly on the rule of res judicata but chiefly on a wider ground of public policy. I will deal firstly with res judicata. "Every judgment is conclusive proof as against parties and privies of facts directly in issue in the case, actually decided by the Court, and appearing from the judgment itself to be the ground upon which it was based"; Sir J. Mtzjames Stephen's Digest of the Law of Evidence cited by Mr. Justice Lush in Ord v. Ord (1923 2 K.B. 432). The decree in the present case was based on the facts alleged in the Petition and in facially admitted by the husband. it is clear therefore that he could not in the maintenance or any other proceedings deny that he had committed adultery with Mrs. Knight from March 1968, onwards nor allege that his wife had condoned or connived at or was an accessory to this adultery or allege that his wife's Petition was presented in collusion with him. But this he does not seek to do. It is true that the desertion which he now wishes to set up as conduct to be taken into account upon his wife's application for Maintenance might theoretically have been a discretionary bar to his wife obtaining a decree on the ground ofhis adultery although it could not have been a ground for his obtaining a degree as it occurred less than three years before the presentation of the Petition. Since his marriage had completely broken down the husband was in ray judgment entitled to take the view that no Court would refuse his wife a decree because of the desertion upon which he now seeks to rely in the maintenance proceedings. It would therefore, in my view, have been a waste of time and money to attempt to defend the suit on the ground that his wife had deserted him. The fact that he did not do so does not in my judgment preclude him under the rule of res judicata from relvin upon his wife's desertion, if he can prove it, as relevant conduct to be taken into account in the maintenance proceedings.
As for the allegations made in his wife's discretion statement, these were no part of the lis between his wife and himself. Whether or not the Court will exercise its discretion in favour of a party who has put in a discretion statement admitting adultery is a matter between the Court and that party. It is no part of the res which the Court adjudicates upon as between the parties. It may be that if the husband (who is not shown the discretion statement but only given notice of the barest outline of its contents) had asked for leave to be allowed to defend the Petition, he might possibly have succeeded in persuading the Court to refuse his wife a decree because of her lack of candour. I cannot accept, howewr, that if he does no'1 make this attempt he is subsequently precluded by the rule of res judicata from challenging in maintenance proceedings any allegation which the discretion statement may contain. Indeed Mr. Lerman on behalf of the wife has very properly conceded that he cannot support any part of the learned County Court Judge's decision in so far as it is based on res judicata.
I turn now to consider the more general ground of public policy upon which the learned County Court Judge chiefly based his decision, It is well settled that in exercising discretion inproceedings for permanent maintenance it is of the utmost importance for the Court to have regard to the conduct of the parties: Reatall v. Keatall (1950 P. 189). Indeed in ( Wood v. Wood 1891 P. 272) Lord Justice Lindley places the conduct of the parties first in order in his enunciation of the circumstances which have to be taken into account in such a case. In Robinson v. Robinson (1942 P. 43) the point was canvassed for the first time that a husband is precluded on grounds of public policy from setting up his wife's adultery in proceedings for maintenance if he has failed to defend the Petition on which she obtained a decree of divorce. In that case, Mr. Justice Henn-Collins decided that the point was a good one. He held that it was against public policy to allow a husband to raise allegations of adultery in maintenance proceedings to free himself of liability to support his wife when, in the divorce suit, he had stood by and refrained from using evidence which he had or which but for his carelessness he might have had about his wife's adultery. In Duchesne v. Duchesne (1951 P. 101) Mr. Justice Pearce, as he then was, in a passage in his judgment which was not strictly necessary for the decision expressed qualified approval of Mr. Justiqe Henn-Collins' judgment in Robinson v. Robinson (supra). Mr. Justice Pearce said" ……. he (the husband) is, for reasons of public policy, prohibited from asserting matters of which he knew which would reasonably have been expected, if proved, either to provide an effective answer to the Petition or to produce a different result at the trial (for example, mutual decrees instead of a decree to the Petitioner alone, or a discretionary decree instead of a decree as of right)". In Field v. Field (1964 P. 336), Mr Justice Wrangham (rightly in my view) refused to recognise the existence of any rule of public policy as Enunciated for the first time by Mr. Justice Henn-Collins, or as later approved with a qualification by Mr. Justice Pearce. For my part I am satisfied that at any rate today public policy doesnot require the existence of such a rule and I doubt whether it ever did. I recognise that for better or for worse the public attitude towards divorce has undergone profound changes over the last 20 years and what may possibly have "been properly recognised as a rule of public policy in 1943 or 1951 is not necessarily valid in 1969. Even twenty years ago in Trestain v. Trestain (1950 P.) at p. 202 Lord Justice Denning said the fact that he husband has obtained this decree does not give a true picture of the conduct of the parties. I agree that the marriage has irretrievably broken down and that it is better dissolved. So let it be dissolved. But when it comes to maintenance or any of the other ancillary questions which follow on divorce, then let the truth be seen". When a marriage has irretrievably broken down and it is obvious that it will be dissolved it seems to me to be wrong that a great deal of public time and money should be spent in deciding which of the parties is to be granted the decree or whether perhaps they should...
To continue reading
Request your trial
-
Tcwf v Lkks
...7 of the MPPO to take relevant conduct into account. 110. Further in support of his contentions, Mr Howard cited Tumath v Tumath [1970] 1 All ER 111 and BP, KP and NI [2013] 1 FLR 1310 at paras [18] to 111. We are not persuaded by his submissions. In our view, adopting a broad, undogmatic, ......
-
Tcwf v Lkks
...7 of the MPPO to take relevant conduct into account. 110. Further in support of his contentions, Mr Howard cited Tumath v Tumath [1970] 1 All ER 111 and BP, KP and NI [2013] 1 FLR 1310 at paras [18] to 111. We are not persuaded by his submissions. In our view, adopting a broad, undogmatic, ......
-
Tcwf v Lkks
...7 of the MPPO to take relevant conduct into account. 110. Further in support of his contentions, Mr Howard cited Tumath v Tumath [1970] 1 All ER 111 and BP, KP and NI [2013] 1 FLR 1310 at paras [18] to 111. We are not persuaded by his submissions. In our view, adopting a broad, undogmatic, ......
-
Tcwf v Lkks
...7 of the MPPO to take relevant conduct into account. 110. Further in support of his contentions, Mr Howard cited Tumath v Tumath [1970] 1 All ER 111 and BP, KP and NI [2013] 1 FLR 1310 at paras [18] to 111. We are not persuaded by his submissions. In our view, adopting a broad, undogmatic, ......
-
The Political Legacy of Forced Migration: Evidence from Post-WWII Germany
...(Connor, 2018, p. 181). Such fears led to theban of any expellee political parties or groups in the immediate postwar period(Schoenberg, 1970,pp.78–79).Expellees, living amidst unfriendly neighbors, governed by an adminis-tration fearful of their organized potential, and prohibited from ver......
-
New actors and the state: addressing maritime security threats in Southeast Asia.
...2005), , p. 9. (5) H.H. Gerth and C. Wright Mills, From Max Weber: Essays in Sociology (London: Routledge & Kegan Paul Ltd., 1970), p. 78. (6) See, Peter Warren Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca, NY: Cornell University Press, 2003), pp. 19-......
-
The Continued Relevance of Local Parties in Representative Democracies
...that theactivity of campaigning plays a considerable role in motivating activists to partici-pate locally. Similarly, Dennis Kavanagh (1970, pp. 78–80) observes that partiesuse campaigns in order to stimulate local organisation where this has been lacking.RELEVANCE OF LOCAL PARTIES IN DEMOC......
-
ENTREPRENEURIAL EXIT RESPONSE TO DISSATISFACTION WITH PUBLIC SERVICES
...and voice, and as a mechanism to suppress exit and encourage voice: [loyalty] ‘holdsexit at bay and activates voice’ (Hirschman 1970, p. 78; henceforth, EVL).EVL was subsequently refined, extended, and changed. For example, later loyalty wasoffered as an additional behavioural response and......