Williams v Williams

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Reid,Lord Evershed,Lord Morris of Borth-y-Gest,Lord Hodson,Lord Pearce
Judgment Date27 June 1963
Judgment citation (vLex)[1963] UKHL J0627-2
Date27 June 1963

[1963] UKHL J0627-2

House of Lords

Lord Reid

Lord Evershed

Lord Morris of Borth-y-Gest

Lord Hodson

Lord Pearce

Williams (A.P.)
Williams (A.P.)

Upon Report from the Appellate Committee, to whom was referred the Cause Williams (A.P.) against Williams (A.P.), that the Committee had heard Counsel, as well on Monday the 11th, as on Tuesday the 12th, Wednesday the 13th, Thursday the 14th, Monday the 18th and Tuesday the 19th, days of February last, upon the Petition and Appeal of Josephine Williams, of 56 Oaklands Road, Sebastopol, near Pontypool, in the County of Monmouth, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 12th of July 1962, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Clarence Allister Williams, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled. That the said Order of Her Majesty's Court of Appeal of the 12th day of July 1962, in part complained of in the said Appeal, be, and the same is hereby, Reversed: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Probate, Divorce and Admiralty Division of the High Court of Justice, with a Direction to allow the amended petition of Josephine Williams of the 22d of May 1959, and to pronounce a decree of dissolution of the marriage of the said Josephine Williams to Clarence Allister Williams accordingly, to make provision for the custody of the children of the said marriage and to do therein as shall be just and consistent with this Judgment: And it is also further Ordered, That the Costs incurred by the Appellant and the Costs incurred by the Respondent in the Courts below, and also the Costs incurred by the said Appellant and by the said Respondent in respect of the said Appeal to this House, be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments.

Lord Reid

My Lords,


This case requires a decision of the question whether an insane person can be held to have treated his wife (or her husband) with cruelty. The facts are not in dispute and they are clearly stated in the judgment of Mr. Commissioner Gallop, Q.C., so I need only state in outline those which are relevant to the issue. The Respondent is a miner. For the first ten years of married life his behaviour was not above reproach, but he was never guilty of deliberate cruelty. There is insanity in his family, and in 1954 he began to hear voices and to think that people were after him. He was admitted to hospital as a voluntary patient for three months, and on his return home his wife says his condition was worse. One night he thought he heard people talking about him. He got up and dressed and went out with a knife looking for the people who were tormenting him. His wife reported this, and he was certified insane and taken back to hospital. It is found as a fact on medical evidence that from then until the trial in 1962 he was certifiably insane, and the evidence suggests that this is incurable. He frequently returned home for week-ends, but he was restless, and the voices began to say that his wife was a prostitute. Nevertheless in 1958 he was regraded as a voluntary patient, and in March, 1959, he discharged himself and went home. His wife did not want to have him, but says she could not stop him coming.


For the next nine months he was at home and his conduct during that time caused damage to the wife's health. This was caused by the voices which told him of men up in the loft of the house and of his wife's persistent adultery. He persisted in accusing her: if she tried to get away he would follow her about the house. Sometimes he would climb up into the loft to find the men. The learned Commissioner had no difficulty in holding that the case was proved unless the second limb of the M'Naghten Rules applies. He held that the Respondent knew what he was doing in making these accusations but that he did not know that they were wrong in any sense of the word. The medical evidence was that he thought that his accusations were based on sound fact and that he was fully justified in trying to resolve what was otherwise an intolerable situation.


The learned Commissioner in his judgment dealt in some detail with the authorities on the second limb of the M'Naghten Rules—a matter to which I shall return later. He said:

"If it were res integra I should have thought it virtually impossible to import the second limb of the rule into Divorce Law. Is one to find and examine the opinion which a spouse who was ex hypothesi insane formed of the blameworthiness or culpability of the conduct in question. That is if one treats the word 'wrong' as meaning what Windle's case [1952] 2 Q.B. 826, said it does not mean. If one treats the word 'wrong' as what the Court of Criminal Appeal said it does mean, then much of the texture of cruelty cases has nothing to do with criminal law, or tort or contract for that matter."


But he held that on authority he was bound to dismiss the petition.


The Court of Appeal (Willmer and Davies, L.JJ.; Donovan, L.J., dissenting) held that they were bound to hold that the M'Naghten Rules applied and bound by Palmer v. Palmer [1955] P. 4 to hold that the second limb of those rules applied as well as the first. If that were so, then this petition must be dismissed. The majority further gave reasons why in principle the second limb must apply, and I shall have to deal with those reasons later. So the appeal was dismissed; but leave was granted to appeal to this House.


In my judgment, before we come to the M'Naghten Rules at all, we must first decide the general question whether insanity in any sense is a defence to a petition for divorce for cruelty. The position as I see it is this. Before 1857 divorce a mensa et thoro on the ground of cruelty was a well-established remedy given by the Ecclesiastical Courts. By the Matrimonial Causes Act, 1857, the jurisdiction of those Courts was transferred to Her Majesty's Courts: divorce a mensa et thoro became judicial separation, but the same principles continued to apply. By the Matrimonial Causes Act, 1937 (now consolidated in the Act of 1950), divorce for cruelty was introduced for the first time. The Act requires that the respondent shall have "treated the petitioner with cruelty".


There has been much argument about the meaning of the word "treated". I attach no importance whatever to that word. What Parliament did in 1937 was to provide an additional remedy for cruelty. It did not touch the older remedy of judicial separation which is still available. So for that remedy cruelty must have the same meaning today as it had before 1937. It is incredible that cruelty now has a different meaning according to which remedy is chosen. But quite apart from that it seems to me obvious that Parliament cannot have intended to alter the former meaning of cruelty. If it had been intended to alter the meaning no one in or out of Parliament would have been so foolish as to leave that intention, and the extent of the intended alteration of meaning, to be inferred from the mere use of the word "treated".


Accordingly it is necessary to see what the old law was. We have been referred to no case before 1857 in which there was actual insanity. The earliest was Hayward v. Hayward, 1 Sw. & Tr. 81, and I get little or no help from that case. But ungovernable passion, or a state of mind which was far from normal, was not unfamiliar, and I think it very helpful to see how those great judges Lord Stowell and Dr. Lushington dealt with this matter.


In Kirkman v. Kirkman (1807) 1 Hag. Cons. 409 Lord Stowell (then Sir W. Scott) said:

"The evidence most clearly established that the wife is not mistress of her own passions; and the Court would be wanting in due attention to the safety of the injured party in this case if it did not pronounce for a separation as absolutely necessary for that purpose."


In Holden v. Holden 1810 1 Hag. Cons. 453 Lord Stowell said:

"The Court has had frequent occasions to observe that everything is in legal construction saevitia which tends to bodily harm and in that manner renders cohabitation unsafe; wherever there is a tendency only to bodily mischief it is a peril from which the wife must be protected: because it is unsafe for her to continue in the discharge of her conjugal duties; and to enforce that obligation upon her might endanger her security and perhaps her life. It is not necessary in determining this point to inquire from what motive such treatment proceeds—It may be from turbulent passion or sometimes from causes which are not inconsistent with affection and are indeed often connected with it, as the passion of jealousy."


Dr. Lushington was even more emphatic. He said in Dysart v. Dysart (1844) 1 Robert. 106 at p. 116:

"When I find conduct towards a wife likely to prove dangerous to her safety, but not in other cases, I shall consider it within my cognisance, whatever may have been the cause thereof, whether having arisen from natural violence of disposition, from want of moral control, or from eccentricity. It is for me to consider the conduct itself, and its probable consequences;...

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15 cases
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    ...of cruelty. But can it be dons? 8 Before the decisions of the Rouse of Lords in Collins v. Gollins, 1964 Appeal Cases, p. 644t and Williams v. Williams, 1964 Appeal Cases, p. 698y many of us would have said, as Lord Justice Hodson said in Clark v. Clark, 24th June, 1958 (unreported) that "......
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    ...must flow from the voluntary act of the defendant. Were the act of firing involuntary or accidental there would be no liability. 41 In Williams v Williams [1964] AC 698 (" Williams") a husband, certified, returned to the status of voluntary patient and during home leave resumed cohabitation......
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