W v W. (No. 2)
|England & Wales
|THE MASTER OF THE ROLLS,LORD JUSTICE JENKINS,LORD JUSTICE HODSON
|13 July 1954
|Judgment citation (vLex)
| EWCA Civ J0713-1
|13 July 1954
|Court of Appeal
 EWCA Civ J0713-1
In the Supreme Court of Judicature
Court of Appeal
The Master of the Rolls (Sir Raymond Evershed)
Lord Justice Jenkins and
Lord Justice Hodson
MR BASIL NIELD. Q.C. and MR D. A. FAIRWEATHER (instructed by Messrs Scadding ' Bodkin) appeared on behalf of the appellant wife (Respondent).
Mr J.E.S. SIMON. Q.C. and Mr H.G. GARLAND (instructed by Messrs Bishop ' Cooke) appeared on behalf of the respondent husband (Petitioner).
In this appeal the two parties, the husband and the wife, come for the third time before this Court in the course of litigation which has sought to determine on one ground or another the marriage between them. It is therefore plainly a case of a most unusual character, a case which I should imagine, and I hope, will not often find a parallel in other instances. It may perhaps, because of its unusual character, reflect or be thought to reflect some imperfection in the administration of this part of the law and, if so, it is an instance of the fallibility of all human institutions. I think it reflects also another human fact, and that is that when a marriage, started (as this was) between two persons of good character, who, as I indicated on an earlier occasion, had both done their best to make a success of it, has once broken down, it may produce feelings of implacable hostility which tend to prolong and render the more bitter the litigation as it proceeds.
These introductory remarks are not, I think, entirely irrelevant, because on both substantial points with which we have to deal there is no doubt (and I have the highest authority for so stating) that the case must depend upon its own special and peculiar facts. I shall not recites at length the history of this unhappy marriage. It will be found set out in the Law Reports, 1950 Probate, page 152, sub nominee which is the report, of the first occasion when the affairs of this marriage were before this Court. As there appears, the marriage was made in the year 1941. It is now established (though it was at one time denied by the wife, she admitted it in the course of the present proceedings) that the marriage was never consummated, because unfortunately she was physically or nervously, or both, incapable of consummating it. In those circumstances, a small child was adopted by husband and wife in the year 1944. That child died, and thedeath of the child may well have had a disastrous effect upon the nervous equipment of the wife. However, in 1945 a second child was adopted, which is alive; but the marriage (as I have already said) was not a happy marriage; and in the autumn of 1946 it came to grief, in the sense that the wife, following a quarrel, then told her husband to get out and stay out and, after a period during which the only communications between husband and wife appear to have been, on the evidence in this case, enquiries by the wife of the husband when he was in fact going, the husband left, and from that time on they never resumed their life together.
One other fact of importance must be stated of this early history, namely, that in the year 1944, following (I gather) the death of her mother, the wife came into a certain sum of money. She then bought the house which for a time was the matrimonial home, the house in Cornwall, named by her, perhaps optimistically, with the Latin word for"Peace" From 1946 the husband was engaged for a time in the Royal Navy, and service in the Navy took him north, took him to Northern Ireland, took him to the sets Indies. In the period from his departure in the autumn of 1946 until the autumn of 1950, when the first petition was presented, there was certain correspondence, to which I shall later make some allusion, For the moment, suffice it to say that in the year 1947 the wife communicated with the husband, suggesting that he should return or come to her at"Pax"when on leave, or even obtain a transfer to a post nearer to that house, but in which she steadfastly refused in any circumstances to join her husband in married quarters. After that correspondence, the wife virtually ceased to communicate altogether with her husband. She declined to answer letters, save on one occasion when she was sent a present, and when she answered with a brusque terseness which was little or no improvement on complete silence. But she didduring that time go so far as to write disgraceful letters in a false name, a performance for which she now says (and I dare say says truly) that she is bitterly ashamed.
However that may be, in the autumn of 1950, as I have said, the husband presented the first petition, a petition seeking for a decree of nullity, based, first, on incapacity and, second, on an allegation of wilful refusal by the wife to consummate the marriage. To that petition the wife put in an Answer, denying incapacity and denying wilful refusal. Indeed, at the trial of the matter, She swore, but was disbelieved, that the marriage had been consummated. She also in her Answer included a cross—prayer for dissolution of marriage on the ground of the husband's desertion. That petition came for trial before the learned Commissioner Graaebrook, and that learned Judge, having heard all the evidence and having expressed a preference for the husband's evidence to that of the wife, made a decree nisi for nullity on the ground of proved incapacity. From that Order or decree, the wife appealed to this Court, and the appeal was heard on the 11th and 12th March, 1952. This Court, which was composed of the two Lords Justices who are now sitting with me and myself, in no way differed from the conclusions of fact at which Mr Commissioner Grazebrook arrived; that is to say, we did not accept the first argument put before us on the wife's behalf that there was no incapacity and that the marriage had been in fact consummated'but the Court came to the conclusion, that the circumstances of the adoption of the two boys, those adoptions having been done formally and in accordance with the Adoption Act of 1926, were such as, within the well—known principle expressed in the speech of Lord Selborne in the case of , to make it wrong and inequitable for the husband to come then to the Court and say that the marriage should be declared non—existent; in other words, that those circumstances amounted to an approbation on the husband's part of the marriage, from which it would not beright to allow him to resale. The result therefore was to set aside the decree nisi which the Commissioner had pronounced. As I have said, the Answer of the wife had contained a cross—prayer for dissolution on the ground of desertion. It was obvious, therefore, that the Order that this Court made on the 12th March was not an end of the matter, even on the proceedings as they then stood. If I may be allowed to do so, I quote the final paragraph of my own Judgment, at page 163 of the report:"In all the circumstances and upon the facts of this case (and I need hardly say that every case of this kind, as every other case, must depend on its own special and particular facts). I think the formula in Lord Selborne's speech in G. V. E. has been satisfied and that the conduct of the husband, taken over the whole period, was consistent and consistent only with such affirmation of the marriage as now to make it equitable (that in, unjust as between the two parties to the suit) and also contrary to public policy for this court to grant his prayer. The consequence will be that the judgment ought to be reversed and we must send the matter back to the court below in order that the question of dissolution of the marriage on the ground of desertion may be pursued, if the wife desires to pursue it; and it may be necessary for leave to be given for the husband to amend his proceedings. Those are matters which the judge will deal with, cannot at present go into them"
The reference to amendment which I there made was an intimation, and clearly understood as such, that the husband might wish to apply, and that it might be thought proper to allow his application, to amend his proceedings so as to ask for dissolution on his part on the ground of desertion by his wife. If such an amendment were allowed, the result would be, of course, that the terminus ad quem for the purposes of the desertion would be the date of the petition, namely, the 12th October, 1950. On the 16th April, 1952 (shortly, that is,after the Judgment to which I have just referred) the husband swore an affidavit intended to be relied upon by him in support of an application so to amend his first petition, a course to which it must, I think, be conceded he had been somewhat encouraged by the observations of this Court. That affidavit, or a copy of it, was sent to the wife, and there followed, beginning on the 25th April, a series of letters which are specifically relied upon in this case as constituting such an offer on the wife's part to put an end to the desertion (assuming that she is to be taken as having deserted) as put an end in law or in fact to that desertion.
As to some of the earlier correspondence, I must later return. But, to continue the narrative of the Court proceedings; in May 1952 the husband took out a summons for leave to amend. The Registrar, as I understand it, disallowed the application on the ground, which the wife put forward, that if the husband was allowed to amend, it would disable the wife from relying upon anything after the 12th October, 1950, as terminating the desertion. The husband appealed to the Judge, and the Judge allowed his appeal. The wife thereupon appealed to this Court. So arose the second excursion of these two unhappy people to the Court of Appeal. It was the case of the wife against the husband's application for amendment that, as I have already indicated, its effect would be to disable her from relying upon...
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