Green v Green

 

Green v Green

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

FAMILY; Divorce

PROBATE, DIVORCE AND ADMIRALTY DIVISION

JONES J

20 DECEMBER 1945

Divorce – Desertion – Continuation of desertion – Non-cohabitation clause – Subsequent deletion of clause – Previous period of desertion added to period

subsequent to deletion of clause – Matrimonial Causes Act, 1937 (c 57), s 6(3).

The parties were married in 1920 and lived together until October 1927. Earlier in that year the respondent had informed the petitioner that he was not

prepared to live with her any longer and suggested separation by deed. The petitioner refused. In October 1927, the respondent told the petitioner to leave the

house and she went to live with her parents. In January 1930, the petitioner obtained from the magistrates an order for maintenance which contained the usual

non-cohabitation clause. In January 1944, on the application of the petitioner the non-cohabitation clause was struck out from the maintenance order. A year

later the petitioner presented a petition for dissolution of marriage on the ground of the respondent’s desertion. The parties had not resumed cohabitation since

October 1927:—

Held – Under the Matrimonial Causes Act, 1937, s 6(3), the period of 2 years’ desertion which elapsed before the maintenance order was obtained could be

used by the petitioner as if it had elapsed immediately before the presentation of the petition; and as that period, added to the period of 1 year’s desertion

which had elapsed since the non-cohabitation clause had been deleted from the maintenance order, made up the statutory period of 3 years’ desertion, the

petitioner was entitled to a decree.

Notes

It was held in Gatward v Gatward ([1942] 1 All ER 476) that desertion is not automatically reconstituted on deletion of a non-cohabitation clause. In the case

under consideration the conduct of the husband after the deletion of the clause showed an intention to continue the desertion and, moreover, the wife alleged

that the clause had been inserted in error, against her wishes. The court accordingly allows the periods of desertion before and after the currency of the

non-cohabitation clause to be added together in order to bring the aggregate period up to the statutory three years.

As to Non-cohabitation Clause in Magistrates’ Order, see Halsbury, Hailsham Edn, Vol 10, p 659, para 969; and for Cases, see Digest, Vol 27, pp

319–321, Nos 2978–2999.

Case referred to in judgment

Mackenzie v Mackenzie [1940] 1 All ER 256, Digest Supp, [1940] P 81, 109 LJP 9, 162 LT 228.

Petition

Petition by the wife for dissolution of her marriage on the ground of the husband’s desertion. The facts are fully set out in the judgment.

Acton Pile for the petitioner.

20 December 1945. The following judgment was delivered.

JONES J. The parties in this case were married on 2 October 1920, and they lived together until October 1927. Before that, in August 1927, the respondent

had told the petitioner that he was not going to give her any more money for her 􀂭 308􀀉 maintenance, and if she wanted any more she would have to take the

matter to court; and then there was a letter written by some solicitors on his behalf to her father, saying that he was not prepared to live with her any longer

and suggesting that a separation agreement should be executed. Apparently her father was in favour of the execution of the separation deed, but she showed

no desire to be separated from her husband and she refused to enter into an agreement. In October he told her to leave the house, and she went to her parents.

He then, she believes, gave up the house and went away, and she heard no more of him. She did not take any steps against him for maintenance because she

was living with her parents, and a period from October 1927, to January 1930, passed during which I find he had deserted her. He made no attempts to ask her

to resume the matrimonial life, nor, indeed, did he take any notice of her at all. Then in January 1930, she took out a summons for maintenance, and an order

was made, and in this order there appears a clause which provides that the applicant be no longer bound to cohabit with her husband, the defendant. The

petitioner says she had no desire for any such order, and it would not appear there was any necessity for any such order, because she had not objected in any

way up to then to living with her husband; she had not alleged, for instance, persistent cruelty and asked to be protected from him; what she wanted, as I find,

was to resume life with him; and, therefore, this paragraph that she be no longer bound to cohabit with her husband seems to be most unsuitable, and I have

very little doubt it was inserted by mistake. But that does not make any difference, according to the decision of the Court of Appeal in Mackenzie v

Mackenzie, as I read it. It appears to me to be laid down quite clearly that provided the clause appears in the order it is binding. I think it might be possible to

show that the minutes of the justices contained an order to a different effect, for the purpose of showing that this particular copy of the order was not correct,

but that has not been done in this case, and, therefore, I feel bound to hold that during the period that this order was in force, that is to say, during the period

during which the clause to which I have referred was effective, there was no desertion of the petitioner by the respondent. That period was from January 1930,

until January 1944, when she made an application to the justices and asked them to vary the order by deleting the non-cohabitation clause, and that was done.

Counsel for the petitioner relies on the Matrimonial Causes Act, 1937, s 6(3), which provides as follows:

‘For the purposes of any such petition for divorce, a period of desertion immediately preceding the institution of proceedings for [a separation

order—I think I can shorten it like that] shall, if the parties have not resumed cohabitation and the decree or order has been continuously in force since

the granting thereof, be deemed immediately to precede the presentation of the petition for divorce.’

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

Now I hold that to mean this, that the period of desertion which elapsed before this order was obtained can be used by the petitioner as if it had elapsed

immediately before the presentation of the petition upon which she is relying at the present time. That period was a period of 2 years and 2 months from

October 1927, to January 1930. Since the non-cohabitation clause was removed from the order, which remains still in force, there has been a period of a year,

during which I find that the respondent has continued to desert the petitioner. He would have notice of the application to delete this clause, and, therefore, if

he had wanted to do so, he could have made a suggestion to her about resuming their matrimonial life, but he has not done so.

In those circumstances, therefore, I have come to the conclusion that the right course is to add to that period of 1 year which has passed immediately

before the presentation of this petition the period of 2 years and 2 months which elapsed before the application for the order in 1930. That makes a period of 3

years and 2 months, and I hold that that period of 3 years and 2 months is a period of 3 years immediately preceding the presentation of the petition.

In those circumstances, therefore, as the parties have not resumed cohabitation, I find that that subsection applies to this case. I am satisfied that

otherwise the case is proved, and, therefore, I pronounce a decree nisi.

Decree nisi with costs.

Solicitors: W W Box & Co (for the petitioner).

R Hendry White Esq Barrister.

􀂭 309􀀉

[1946] 1 All ER 310