Wiseman v Wiseman
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SOMERVELL,LORD JUSTICE DENNING,LORD JUSTICE HODSON |
| Judgment Date | 10 February 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0210-3 |
| Date | 10 February 1953 |
| Court | Court of Appeal |
[1953] EWCA Civ J0210-3
Lord Justice Somervell
Lord Justice Denning and
Lord Justice Hodson
In The Supreme Court of Judicature
Court of Appeal
MR. J. D. F. MOYLAN and MR. C. WIGRAM (instructed by Messrs. Walter Burgis & Co) appeared on behalf of the Applicant, Mrs. Ivy Elizabeth Wiseman.
MR. D. M. SCOTT (instructed by Messrs. Crawley & de Reya, agents for Messrs. J. C. M. Dyke, McLusky & Braddell, Exmouth) appeared on behalf of the Respondent, Dr. J. F. S. Wiseman.
MR. H. E. PARK (instructed by Messrs. Sharpe Pritchard & Co, agents for Messrs. Nichols & Nichols, Exmouth) appeared on behalf of Mrs. Eileen Phelps Wiseman.
This is a motion by a Respondent wife for extension of time to appeal against a decree absolute and if that is granted for an Order that the decree absolute and decree nisi be set aside and for a new trial. On an earlieron an earlier occasion we issued directions as to the procedure and joinder of parties.
The first point which the Respondent wife, whom I will refer to as Mrs. Wiseman, has established is that she had no knowledge or suspicion of the divorce proceedings until some months after the decree absolute. There was some lapse of time after the knew before application was made to the Court. That was considered on an earlier occasion and we regarded the lapse of time as satisfactorily explained. It follows from what I have said that there was no personal service. An Order for substituted service was made by publication in the Nottingham Evening News. This was done, but no knowledge of this reached Mrs. Wiseman. Mrs. Wiseman attacks this Order as one which would never have been made if the facts, as known to or assumed by the Petitioner husband, Dr. Wiseman, had been disclosed to the Court. If, is submitted, this Order was a nullity then the subsequent proceedings based on it would, I think, be of no effect. If it is not a nullity then it is submitted that it is voidable and that having regard to all the circumstances the decrees should be set aside.
The parties were married on the 6th September, 1924. Four sons were born in 1925, 1928, 1933 and 1937 respectively. In 1941 Dr. Wiseman was working for a Dr. Davis in Totnes, the family living in a furnished house at Dartington. In 1942 Mrs. Wiseman and the children went to live at 6 Dendy Road, Paignton, while Dr. Wiseman lived in Dr. Davis' house at Totnes. That work came to an end and he went to 6 Dendy Road, having for the moment no work. In May 1943 he bought a practice in Exmouth and went to live in his predecessor's house with his predecessor's family who were no doubt looking for somewhere to move to. In January, 1944, the predecessor's family left. Mrs. Wiseman never went to join her husband at Exmouth. In Dr. Wiseman's petition he alleged that she refused to do so in March, 1944, and this amounted to desertion by her. She, if she had known of the proceedings, would have desired to submit to the Court that she was not indesertion and was justified in not going to Exmouth. That was an issue which we clearly could not try, but I was satisfied that there were issues proper to be tried.
The sons were at Dartington Hall School and Dr. Wiseman since, at any rate, about this time, never paid anything for their schooling or maintenance. That has been done by Mrs. Wiseman. In May 1945 she undertook work abroad and I will set out her movements. May to July, 1945, she was in Normandy. July 1945 to December 1946 she was in Athens, where she had a post in U.N.R.A. That work came to an end. From January 1947 to October 1947 her base was Salonika. She had a post in the United Nations Balkan Commission and at times visited different Balkan countries, but letters were forwarded. Since then she has worked for the World Health Organisation in Geneva, her official address being Palais de Nations, Geneva. She at first lived outside Geneva in Switzerland and then at Ferney Voltaire in France. Over the whole period she visited England at rare intervals. The petition is dated 13th August, 1948, and at that time she had been in Geneva some months. There was, in fact, no difficulty at any time in communicating with Mrs. Wiseman. The headmaster of Dartington Hall School was in constant communication with her and would have forwarded any communication to her, though he/would probably have asked her leave if her address had been asked for. Dr. Wiseman assumed rightly that the authorities at the school would be in communication with her. He said he rang up the headmaster's secretary and asked for the address, which she refused. Her evidence was that she would not have given a parent's address on the telephone but would have told the inquirer to write to the headmaster. A letter posted to her last known address, namely, Dendy Road, would have been forwarded to her. Dr. Wiseman called at the house and saw the sub-tenant but there was some dispute as to what took place. It was not the sub-tenant who was forwarding letters. Her married sister at whose home in Nottingham Dr.Wiseman had stayed was in touch with her and letters were forwarded. He said at some date he rang up. He spoke to the nephew who did not at the moment know his aunt's address. He took no further steps.
When the matrimonial dispute arose in 1944 there was correspondence between solicitors, Mrs. Wiseman employing Messrs. Alny & Thomas. They continued to act for her in connection with 6 Dendy Road and were in touch with her throughout. Dr Wiseman knew that when they were together she had an account with the Midland Bank, Birmingham. She continued to bank there and communications would presumably have been forwarded. Dr. Wiseman knew that the sons or some of them were going to stay with their mother at Geneva. He said he asked Jeremy, who gave evidence, for her address. Jeremy disputed this. The obvious course was to ask the boy if he would take or forward a letter. He said he would have done so. Other ways were suggested but these are sufficient. After the petition was filed a copy with other proper documents was sent to Mrs. Wiseman care of the United Nations Commission, Athens. Dr. Wisemans said that a Mr. Phillips told him that this address had been given him by Dartington Hall School. Mr. Phillips was not called and this seems extremely unlikely if the inquiry was made at any relevant date. In May, 1948, the headmaster was writing to Mrs. Wiseman to her official address at Geneva. She had not been in Athens since December, 1946. The envelope was returned marked "parti". No further enquiries appear to have been made. If it was thought that the address had been given by the school the obvious course was to write and ask for the new address. No request to forward the document was ever made to the school, the solicitors, her sister, her brother-in-law or any of the sons. What, then, was relied on in the affidavit sworn by Mr. Dyke, Dr. Wiseman's solicitor, in support of the application for the Order for substituted service? The affidavit is entirely hearsay. Some letters were exhibited indicating what on the face of them wereextremely perfunctory inquiries in Nottingham in December, 1947, with an article which had appeared about her in a newspaper. It is fair to Mrs. Wiseman to say that she took strong exception to the tone and character of that article. It indicated she had been in France, Athens, and Salonika. It did not refer to Geneva where she had just started or was about to start work. There was then a reference without a date to an enquiry from the eldest son. It was, in fact, made in June 1947. He did not then know his mother's whereabouts but was in touch with her shortly after or stayed with her in 1948 in Switzerland. Then there is paragraph 5: "According to my instructions the Petitioner knows of no means whereby the present address of the said Respondent may be assertained but I verily believe that an advertisement circulating in Nottingham will bring these proceedings to her notice". The only ground (suggested) for so presuming was that her sister and her father lived there. It seems incredible that, their addresses being known, the direct method of informing them was not adopted as against the chance of their reading this particular announcement in this particular evening paper. At any rate, a marked copy of the paper might have been sent. Mr. Dyke said in the course of his evidence that inquiries from a solicitor sometimes prevent information being given. This may be so in some cases. Here what was required was the co-operation of those known to be in touch with Mrs. Wiseman in order that she might know of proceedings against her so that she might, if so minded, defend them. It is plain on the evidence this co-operation would be forthcoming. It is one thing to ask for an address for an undisclosed purpose. It is another to ask that a party against whom proceedings are being taken should be informed of them. If the Court had been told the facts as known or assumed, in particular of those known to be in communication with her, I am satisfied the Order could never have been made.
The publication having been made the case came on as anundefended case and the decree was made on 2nd, March, 1950. It was made absolute on 14th April and on 20th April the Petitioner married a Miss Thomas. A child was born a year later. Under the directions which we gave the second Mrs. Wiseman was made a party and a guardian ad litem appointed for the child. Mrs. Wiseman alleged that the Order for substituted service had been obtained by the fraud of Dr. Wiseman, by fraudulent concealment of relevant facts. I am not surprised this was alleged but having heard Dr. Wiseman and his solicitor Mr. Dyke, that allegation, in my opinion, failed. It is, however, in my view, established that methods of communication which were reasonably obvious could have been and were not either used or brought to the...
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