Weatherley v Weatherley
| Jurisdiction | UK Non-devolved |
| Judge | The Lord Chancellor,Lord Wright,Lord Simonds,Lord Normand |
| Judgment Date | 31 March 1947 |
| Judgment citation (vLex) | [1947] UKHL J0331-3 |
| Date | 31 March 1947 |
| Court | House of Lords |
[1947] UKHL J0331-3
House of Lords
Lord Chancellor
Lord Wright
Lord Simonds
Lord Uthwatt
Lord Normand
My Lords,
This was a husband's petition for divorce based on the ground of desertion by the Respondent wife. The petition was dated the 22nd day of February, 1945, and it was therefore necessary to show that the desertion had lasted for at least three years, from the 22nd February, 1942.
The Trial Judge, Mr. Justice Bucknill, as he then was, heard the case in October, 1945, and dismissed the petition. The Court of Appeal (Lord Justice Scott, Lord Justice Tucker, and Mr. Justice Evershed) dismissed the appeal, Lord Justice Scott dissenting.
From this decision an appeal has been brought to Your Lordships' House.
The relevant facts can be shortly stated.
The parties were married at the Registry Office in Bromley, Kent, on the 17th May, 1941, the husband being then aged 22, a Sergeant in the Royal Air Force, and the wife being a spinster of 30 years of age, the daughter of a man called Pasciuti. The nationality of the wife before her marriage was not stated.
They lived in a two-roomed flat at 286, Kent House Road, of which the wife was the tenant. The husband was, in the early days of the marriage, in the habit of spending the time when he was on leave with his wife and her flat became the marital home.
In the early days of the marriage normal sexual intercourse took place, and this continued up till October, 1941, whenever the husband got leave.
When the husband went home on leave in November, 1941, the wife said that she had prepared another bed for him. She said she did not want any further resumption of marital relations. She said that she knew that she was being awfully selfish but (I quote from the evidence) "she thought this sex business was horrid and beastly and she did not want any more of it." She added that she realised it was awfully hard on her husband, but if he wanted that sort of thing he could have it with some other woman. As a result the husband had to sleep in another bed and at some later date, which was not specified in the evidence, in another room. In all other respects they continued living together in the flat as a normal married couple. They had their meals, which were prepared by the wife, together, and they went out together to clubs and entertainments.
Although from time to time thereafter the husband asked the wife to change her mind and to allow him sexual intercourse, she never consented to do so. They continued, however, to live together at the marital home.
The sole question in this case is whether that state of affairs which continued at any rate for part of the three years preceding the presentation of the petition constitutes desertion?
Under the Matrimonial Causes Act of 1857, adultery, coupled with desertion without reasonable excuse for two years or upwards, had been a ground upon which a wife could obtain a decree of divorce, and desertion without cause was of itself a ground upon which a sentence of judicial separation could be obtained.
The Matrimonial Causes Act, 1937, for the first time, made desertion without cause a ground of divorce if it had continued for three years immediately preceding the presentation of the petition.
It is noticeable that in neither of these two Acts was desertion defined.
Under these circumstances I think we should first consider what was the state of the law as laid down in the decided cases dealing with the subject of desertion up to the date of the passing of the Act of 1937.
In the absence of any statutory definition of desertion I should think it right to presume that the Legislature in using that word used it in the understood and accepted sense.
My Lords, I find it unnecessary for the reasons I will give presently to bring the many decided cases into detailed review: In all of them the Judges have declined, and in my view wisely declined, to attempt any definition of "desertion".
In this respect I propose to follow their example. On some future occasion it may be necessary that this House should consider some of these decisions, and, in particular, should consider whether there is sufficient warrant for the doctrine of "constructive desertion" which from time to time seems to have found favour.
In the view which I take no such consideration is necessary for the determination of the present appeal, for it is the fact that in none of those cases before Jackson's case ( 1924 P. p.19) is there anything to suggest that, so long as cohabitation is continued, a mere refusal of sexual intercourse by one of the spouses can constitute desertion.
This point actually arose for decision for the first time in Jackson's case. The actual refusal in that case was a refusal by the husband to sleep with his wife because she insisted on having her little girl with her. The case was argued upon the footing that there had been an unqualified refusal of sexual intercourse and the judgment proceeds on this basis. The President in the course of his judgment states the principle as follows:—
"How does it stand in point of principle? Wanton refusal of one or other of the parties to a marriage to have sexual intercourse is no doubt a wrong thing. It is the intentional breach of one of the ties of marriage, but it does not produce either separation or living apart. It may be a ground upon which the party against whom the refusal is made may decide to go away; and in the case of Synge v. Synge in the Court of Appeal, which has...
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Slon v Slon
...spouse unreasonably refuses sexual intercourse cannot amount to desertion. For that proposition he cites the well - known case of Weatherley v. Weatherley, reported In 1947 Appeal Oases at page 628. It is not necessary to refer in any detail at all to that case. It is, of course, plain that......
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Jamieson v Jamieson
...still are. The position is entirely different from that in the law of divorce for desertion, and I regret an unguarded sentence of mine in Weatherley [1947] A.C. at 635, if it has led to confusion through being thought to apply beyond divorce for desertion, which was the subject-matter of t......