MacIntyre v MacIntyre and Moppett

 

MacIntyre v MacIntyre and Moppett

FAMILY; Divorce: ADMINISTRATION OF JUSTICE; Other Administration of Justice

PROBATE, DIVORCE AND ADMIRALTY DIVISION

BUCKNILL J

30, 31 OCTOBER, 1 NOVEMBER 1945

Divorce – Evidence – Cross-examination – Husband’s petition – Prayer for discretion inserted erroneously – Application to amend petition – Affidavit sworn

by husband denying adultery – Wife’s petition alleging different adultery without reference to adultery denied in affidavit – Husband’s evidence confined only

to matters in affidavit – Cross-examination restricted to charge specifically denied – Supreme Court of Judicature (Consolidation) Act, 1925 (c 49), s 198.

The husband filed a petition on 2 October 1944, in which he alleged that his wife had committed adultery and in his prayer he asked for the exercise of the

court’s discretion. On 28 December 1944, he swore an affidavit asking for leave to amend his petition by deleting the prayer for discretion which, he stated,

had been inserted owing to a misunderstanding between him and his solicitors. The misunderstanding arose because the husband had alleged that he had had

an adulterous association at Aleppo in order that his wife might divorce him. In para 4 of the affidavit he made the following statement: “I did not, however,

commit adultery on that occasion or any other occasion.” In September 1945, the wife filed a petition for divorce, alleging that the husband had committed

adultery with a woman whose Christian name only was known, but the petition contained no reference to the alleged incident at Aleppo. The husband’s

evidence was restricted to a denial that adultery had been committed at Aleppo. The question for the determination of the court was whether the husband

could be cross-examined as to the adultery now alleged in the wife’s petition:—

Held – The husband could not be cross-examined as to the alleged adultery in the wife’s petition because at the time when he swore the affidavit that question

had not been raised. To hold that the affidavit allowed the husband to be cross-examined as to the whole of his conduct during his married life would infringe

the principle of the common law rule that no one could be required by evidence to criminate himself or herself.

Cavendish v Cavendish applied. Morton v Morton followed.

Notes

Bowen LJ, pointed out in Cavendish v Cavendish that the doctrine that “no one is bound to criminate himself,” although dating back to the days of

ecclesiastical censure, still applies with full force to a charge as grave as that of adultery. It is accordingly held that the prohibition in s 198 of the Judicature

Act, 1925, against questions tending to show that a party has been guilty of adultery, unless he has already given evidence in disproof of such adultery, is to be

strictly construed, and in the circumstances here in issue made such questions inadmissible.

As to Protection of Persons Accused of Adultery, see Halsbury, Hailsham Edn, Vol 10, pp 735, 736, para 1138; and for Cases, see Digest, Vol 27, pp

430–432, Nos 4383–4403.

Cases referred to in judgment

Cavendish v Cavendish [1926] P 10, 27 Digest 425, 4313.

Redfern v Redfern [1891] P 139, 27 Digest 263, 2317, 60 LJP 9, 64 LT 68.

Morton v Morton, Daly and McNaught [1937] 2 All ER 470, [1937] P 151, Digest Supp, 106 LJP 100, 156 LT 46.

Consolidated Petitions

Consolidated Petitions for dissolution brought (i) by the husband, charging the wife with adultery; (ii) by the wife, charging the husband with desertion and

with adultery. The husband sought leave to amend his petition by deleting the prayer asking for the exercise of the court’s discretion and stated in his

affidavit: “I have not in fact committed adultery and the discretion was only asked for owing to a misunderstanding between me and my solicitors.” The

misunderstanding arose out of the fact that the husband had faked an adultery 􀂭 121􀀉 at Aleppo because he wanted his wife to divorce him. Para 4 of the

affidavit also stated: “I did not, however, commit adultery on that occasion or any other occasion.” The wife, in her petition, alleged that the husband had

frequently committed adultery with a woman whose surname was unknown but whose Christian name was known, without making any reference to the

adultery at Aleppo. The only matter calling for report was the limit set to the cross-examination of the husband after he had restricted his evidence to a denial

of the adultery at Aleppo.

J Scott Henderson KC and R T Barnard for the husband.

Gilbert H Beyfus KC and C A Marshall-Reynolds for the wife.

H D Baskerville for the co-respondent.

1 November 1945. The following judgment was delivered.

BUCKNILL J. This point is an interesting one, and arises under very peculiar circumstances; and it is one of great importance to the parties, having regard to

the possible course that the case may take.

The material facts are these. On 2 October 1944, the husband filed a petition in which he alleged that his wife had committed adultery, and in his prayer

he asked for the exercise of the discretion of the court. On 28 December 1944, he swore an affidavit asking leave to amend his petition by deleting the prayer

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

for discretion, and in his affidavit he says:

‘I have not in fact committed adultery and the discretion was only asked for owing to a misunderstanding between me and my solicitors … ’

Then he sets out what the misunderstanding was. I do not think I need really refer to it, but the gist of it was that he faked an adultery in Aleppo because he

wanted his wife to divorce him; and in para 4 he states this:

‘I did not, however, commit adultery on that occasion or any other occasion.’

I think the affidavit was framed for the purpose of dealing only with this particular faked adultery at Aleppo, although it is certainly couched in the widest

possible terms.

In September 1945, the wife filed a petition in which she alleges that he has frequently committed adultery with a woman whose surname is unknown but

whose Christian name is Kathleen, and says nothing about this adultery at Aleppo. The husband gave evidence tending to show that he had not committed

adultery at Aleppo, and said nothing more about his own conduct. In cross-examination counsel for the wife asserted his right to cross-examine the witness as

to his conduct with Kathleen, and the question I have to decide is whether those questions are admissible, or whether the husband is entitled to refuse to

answer them. The question depends upon the interpretation to be placed on the Judicature Act of 1925, s 198, which is in the following terms:

‘The parties to any proceedings instituted in consequence of adultery and the husbands and wives of the parties shall be competent to give evidence

in the proceedings [and husband and wife are parties] but no witness in any such proceedings, whether a party thereto or not, shall be liable to be asked

or be bound to answer any question tending to show that he or she has been guilty of adultery unless he or she has already given evidence in the same

proceedings in disproof of the alleged adultery.’

It is said by counsel for the wife that the husband has already given evidence in the same proceedings in disproof of the alleged adultery because of the

affidavit which I have referred to. On the other hand counsel for the husband has argued that the affidavit is not evidence in the same proceedings, and in any

case it is not in disproof of the alleged adultery.

It is material to consider for a moment what the object of the rule is, and I find that set out by Lord Merrivale P, in Cavendish v Cavendish, where he

refers to Redfern v Redfern, in which Bowen LJ says ([1891] P 139, at p 147):

‘It is one of the inveterate principles of English law that a party cannot be compelled to discover that which, if answered, would tend to subject him

to any punishment, penalty, forfeiture, or ecclesiastical censure. In these days, when the thunders of the Church have become less formidable, the rule,

so far as it relates to ecclesiastical censure, seems to wear an archaic form; but adultery is a charge of such gravity as to render it not unnatural that we

should find the doctrine still applicable to it—that “no one is bound to criminate himself.” Based upon the traditions of a law belonging to an earlier

age, and a fear of ecclesiastical monitions that is now technical and obsolete, the privilege in such a case has never been abrogated. The principle has

been recognised 􀂭 122􀀉 as governing similar subject-matter by common law and equity alike … The ecclesiastical courts have dealt with the question

in a like manner.’

It is quite true that Cavendish v Cavendish had to do with a question of discovery, but the same principle seems to me to apply here.

There is one other case I must refer to because it throws light on the meaning of the words “alleged adultery,” and that is Morton v Morton, where Sir

Boyd Merriman P, says ([1937] 2 All ER 470, at pp 473, 474):

‘… sect. 198 of the 1925 Act … means that unless and until the husband or wife, as the case may be, has denied the adultery with regard to which

the cross-examination is to be directed there is no right to cross-examine with regard to that particular adultery.’

He goes on to deal with the facts of that particular case, and says ([1937] 2 All ER 470, at p 474):

‘If the party has given evidence denying adultery in general, then, of course, cross-examination may be directed to that general denial …’

I think in this case that the husband has not given evidence in disproof of the alleged adultery, because at the time when he swore the affidavit no

question as to his conduct with Kathleen had been raised or alleged, and the general terms of his affidavit are to be confined to his conduct with the girl at

Aleppo. To hold that that affidavit entitles his wife to cross-examine him as to the whole of his conduct during his married life seems to me to infringe the

principle of the rule, and, therefore, I rule that the questions are inadmissible.

Husband’s petition dismissed with costs, wife granted a decree nisi on the ground of desertion and co-respondent dismissed from the suit and awarded his

costs.

Solicitors: Blundell, Baker & Co (for the husband); Howard, Kennedy, Genese & Co (for the wife and the co-respondent).

R Hendry White Esq Barrister.

[1946] 1 All ER 123