Waller v Waller
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JENKINS |
| Judgment Date | 26 March 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J0326-1 |
| Date | 26 March 1956 |
| Court | Court of Appeal |
[1956] EWCA Civ J0326-1
In The Supreme Court of Judicature.
Court of Appeal
Lord Justice Jenkins and
Lord Justice Hodson
Mr. FRANK WHITWORTH (instructed by Messrs, Rowe & Maw) appeared on behalf of the Appellant husband.
Mr. JOHN STEPHEHSON (instructed by Messrs. Glover & Co.) appeared on behalf of the Respondent wife.
In this case the wife, Respondent in the present appeal, on the 5th May,1955, presented a Petition praying a decree of Judicial separation free the husband on the ground of Me cruelty. The wife filed a discretion statement admitting certain of adultery by her in respect of which she sought the discreation of the Court. There have been no pleadings subsequent to the Petition, but various affidavite have been filed, case of them directed to questions as to the husband's domicil, with which we are not now concerned the upshot of the affidavit evidence is that the wife admittedly committed adultery on a number of occasions. She admitted as such in her own affidavit evidence, and there were also admission of adultery by her, or passages which could be construed as such admissions. in a diary of hers put in evidence by the husband. She set these charges by alleging that. the husband by the cruel conduct complained of in the Petition had conduced to her adultery, and further she alleged that nor adultery had been condoned. The scatter, therefore, stand thus: the wife is claiming? Judicial separation. That claim has been countered by allegations of the wife's adultery. The wife, on the other hand, has paid the adultery was conduced to by the husband's cruel conduct and/or was condoned by him.
In due course the wife applied for alimony pendente lite. That application was resisted by Mr. Whitworth on behalf of the husband on grounds to which I will shortly refer. The learned Judge rejected those grounds and made the Order which is the subject of the present appeal.
The grounds relied on in opposition to the application for alimony pendents lite appear from this question posed by Mr. Whitworth at the opening of his argument. Be stated the question as being whether a wife who has admittedly committed adultery and therefore normally would not be entitled to alimony pending suit can get alimony on a statement, which the husbanddenies, that the admitted adultery has been condoned.
That question was lit effect answered adversely to the husband by the Order under appeal, and the for, of think, by the course the matter took before the Register and before the Learned Judge, as explained to us by Counsel. The form of the Order made was this: the Judgedecided that the fact that the Petitioner had committed adultery did not in the circumstances of this case preclude her free obtaining alimony pending suit, and referred the Petitiona application back to the Registrar as to quantum, and save leave to appeal.
Consideration of the matter is best begum by a reference to the jurisdiction to award alimony pendents lite on a Petition for judicial separation conferred by section 20(1) of the Matrimonial Cause Act, 1950,which is in these terms: "On any petition for judicial separation, the court may make such interim orders for the payment of alimony to the wife as the court thinks just."
It is material, I think, to compare that provision with the corresponding provision regarding alimony pendente lite in the case or a Petition for divorce or for nullity of marriage. That comes in subsection (1) of section 19, and, mutatis mutendis, is in exactly of marriage, the court may make such interim orders for the payment of alimony to the wife as the court thinks just.
It will be seen, therefore, that, so far as the Statute is concerned, the amplent discretion, as the law now stands, is conferred on the Court in the matter of alimony pendente lite whether the case be one of a Petition for Judicial separation or one of a Petition for divorce or nullity of marriage. Nevertheless. Mr. Whitworth has submitted that in a case of this kind the Court is bound by a hard and fast rule which he was inclined, I think, to describe as a rule of practice rather than a rule of law, that once a wife has admitted adultery in the course ofmatrimonial proceedings she is precluded from an award of alimony pendents lite. He admits that an allegation by the husband of adultery by the wife would be no bar for his purpose, but he says that if there is an admission of adultery by the wife, that is a bar and, as I understand his argument, that admission remains a bar even though the wife is seeking the discreation of the Court, and Is still a bar even though the wife alleges on oath conduct conducing to the adultery which she purpose to prove condonation of the adultery.
Mr. Whitworth referred us to a number of cases dealing with this question, and the invited us to told that upon these authorities his argument was well founded. He based himself to some extent on a submission as to the of proof: he said that once adultery is admitted, it is for the wife to displace its effect by some evidence than her own on affidavit.
In my view the authorities disclose no warrant for limiting the discretion of the Court in this way. The matter is one for the Court to deal with as it thinks just in its unfettered discretion. If it appears at the time of an application for alimony pendants lite that the wife has committed adultery, that is no doubt a matter, and a very serious matter, to be taken into account. If in Such a case the wife has admitted adultery but questions of conduct conducing to the adultery or condonation of the adultery are put in issue, then it seems to me that there cannot be any justification for the view that although these matters are put in issue and although the wife, notwithstanding the admitted adultery, be held disqualified from claiming alimony pendents lite.
The first of the cased to which Mr. Whitworth referred us was the decision of the Court of Appeal in a case of Walton v. Walton, 1927 probate, page 162. That was the case of an applicationbrought under subsection (3)of section 190 of the Judicature Act,1925, which provided that "On any petition for divorce or nullity of marriage the Court shall have the same power to make interim order for the payment of money by way of alimony or otherwise to the wife as the Court has in proceedings for judicial separation." The leading argument on behalf of the husband, as I understand the case, was to the effect that the form of section 190 in conjunction with other provisions which I need not trace out was such as to bring into application on a petition for separation, the rule of the Ecclesiastical court being, it would seen, uncompromisingly to the effect that adultery by the person seeking relief constituted an absolute bar to relief; and it was argued that this strict rule was imported into the jurisdiction conferred by subsection(3)of section 190. That argument was rejected by Lord Merrivale, the President, and his decision was affirmed by the court of Appeal in language which to my mind it Reasonably plain that view which Mr. Whitworth has Invited us to take of the Court's jurisdiction in this matter cannot be supported. I should, I think, road part of the President's judgment and also some passages from the judgments of the Court of Appeal. The President, at page 167 of the report, said this: "The ground of the respondent's appeal against the order for alimony pendents lite is that in a previous suit wherein he was petitioner for dissolution of marriage the now petitioner was found guilty of adultery. Counsel on his behalf contended that there is no jurisdiction in the court to allot alimony pendants lite to a wife no found guilty or to a wife shown to be guilty by her own confession. This proposition is founded on authorities in divorce, such as holt v. Holt and Flemings: Whitmore v. Whitmore: and numerous decision under the common law which lay down that a wife, living apart from herhusband and guilty of adultery, may not pledge husband's credit for necessaries, and that in case of such a wife certain statutory liabilities of a husband in respect of maintenance cannot be enforced. Then he went on to way that Holt v. Holt and Fleeming and Whitmore v. Whitmore more simple cases. "In the former alimony pendents lite was refused in a suit for divorce upon proof that in an Ecclesiastical Court the respondent has already been found guilty of adultory. In the latter, upon a wife's confession of adultery in the course of the proceedings on a petition for divorce, an order for alimony pendente lite which was then subsisting was, as from the date of the confession, discharged. In like cases the same course would probably be taken today.
"The present case is complicated, however, by the fast that the decree of Court in the husband's suit, which pronounced the guilty of the wife, found the husband guilty of conduct conducing to the wife's adultery, and therefore dismissed his petition. This state of facts was said by the wife's counsel to bring the case within the principal laid down in Wilson v. Glo. that a husband who connives at adultery on the part of his wife remains under the same liability for the wife's maintenance as though she has remained chaste".
Then on page 169, to which I think I can pass, comes this importance passage: "The wife in this present suit is a competent suitor, in that she for relief which the Court is able, upon proper proof, to afford to her. Moreover the husband is not free of complicity in the misconduct on her part, as has been established in his suit by the decree of the Court. Whether after such misconduct the wife could pledge the husband's credit for necessaries is not the question. The decisive...
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