Spawforth v Spawforth

 

Spawforth v Spawforth

FAMILY; Divorce: CIVIL PROCEDURE

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

PROBATE, DIVORCE AND ADMIRALTY DIVISION

HODSON J

18, 22, 23 JANUARY 1946

Divorce – Desertion – Failure to establish statutory period – Whether curable by supplemental petition – Supreme Court of Judicature (Consolidation) Act,

1925 (c 49), s 176 – Matrimonial Causes Act, 1937 (c 57), s 2 (b).

A supplemental petition for divorce must be treated as part of and an amendment to the original petition. Consequently, on a petition for divorce on the

ground of desertion, failure to establish desertion without cause for 3 years immediately preceding the presentation of the petition cannot be cured by the

presentation of a supplemental petition and taking into account the period which has elapsed since the presentation of the original petition.

Chapman v Chapman & Thomas followed.

Howard-Williams v Howard-Williams not followed.

Notes

The Matrimonial Causes Act, 1937, requires desertion for a period of three years immediately preceding the presentation of the petition. This period cannot be

arrived at by filing a supplemental petition and adding the periods in the original and the supplemental petitions, since it is established by Sandler v Sandler

that a supplemental petition is part of the original petition. The decision to the contrary in Howard-Williams v Howard-Williams was arrived at without

argument by the opposing counsel, and without the attention of the court being drawn to Chapman v Chapman.

For the Matrimonial Causes Act, 1937, s 2(b), see Halsbury’s Statutes, Vol 30, p 337.

Cases referred to in judgment

Chapman v Chapman & Thomas [1938] 1 All ER 635, [1938] P 93, Digest Supp, 107 LJP 30, 158 LT 424.

Sandler v Sandler [1934] P 149, Digest Supp, 103 LJP 88, 151 LT 313.

Howard-Williams v Howard-Williams [1944] P 85, 113 LJP 71, 171 LT 278.

Cohen v Cohen [1940] 2 All ER 331, [1940] AC 631, Digest Supp, 109 LJP 53, 163 LT 183.

Petition

Petition by the wife for divorce on the ground of the husband’s desertion. The report is confined to the following question raised at the hearing: Whether or

not—the petitioner having failed to establish 3 years’ desertion before the presentation of the petition—the difficulty could be overcome by means of a

supplemental petition and taking into account the period which had elapsed since the presentation of the original petition.

W R K Merrylees for the petitioner.

J Roland Adams for the respondent.

23 January 1946. The following judgment was delivered.

HODSON J. Notwithstanding the fact that 3 years’ desertion before the presentation of the petition has not been established, I have been asked to cure the

difficulty by allowing a supplemental petition to be filed, because by now considerably more than 3 years have elapsed since the wife was deserted.

I have had to consider this question before. In Chapman v Chapman & Thomas I referred to the relevant section [2(b)] of the Matrimonial Causes Act,

1937, which reads as follows:

‘A petition for divorce may be presented to the High Court … either by the husband or the wife on the ground that the respondent … has deserted

the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition; …’

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and the question which arose there was whether the presentation of the petition need be of the original petition of not; and I came to the conclusion that it

must, be having regard to the language of the Court of Appeal in Sandler v Sandler, where Lord Hanworth MR, said ([1934] P 149, at p 156):

‘… it is impossible to hold that a supplemental petition is anything more than a part of and an amendment to the original petition … ’

He was not dealing with this point at all; he was dealing with the question of whether collusion in respect of a main petition affected a supplemental petition.

He said it did, and the Court of Appeal unanimously came to that conclusion. The position in this case seems to me to be exactly the same. I have to consider

whether a supplemental petition would be anything more than an amendment of the original petition; and I see nothing to indicate that it would.

The point came before Barnard J, in Howard-Williams v Howard-Williams. The matter arose without argument on the other side as both spouses were

supporting the application for the matter to be dealt with by way of a supplemental petition. Barnard J had not his attention then drawn to the decision in

Chapman v Chapman & Thomas, but it was argued before him that there were old cases before the Act of 1937 where desertion had been brought up to date,

so to speak, by a supplemental petition, and that those cases were referred to without disapproval by the House of Lords in Cohen v Cohen, in 1940. Of

course, the point that was not brought to his notice was that the old cases dealt with desertion for two years and upwards simpliciter, which was introduced by

the Act of 1857, and had nothing at all to do with desertion immediately preceding the presentation of the petition, and, therefore, did not touch this point at

all.

I have been empowered by Barnard J to say that he did not have Chapman v Chapman & Thomas brought to his attention, and that he is now at any rate

inclined to the view that he would have come to the same conclusion as myself if he had considered the matter in the light of the wording of the 1937 Act.

Counsel for the respondent has pointed out that, if the suit could always be put straight by a supplemental petition, a wife could present a petition for

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

divorce as soon as she was deserted, on the ground of desertion for 3 years and upwards, and obtain her alimony pendente lite, and stand the case over until the

3 years had really run out, and then bring it up to date by a supplemental petition. Of course, that might be possible—I do not know—but, in my view of the

wording of this statute, the supplemental petition must be treated as part of the original petition, and “the petition” in the statute means the original petition,

and the 3 years must precede that date.

The consequence is, that this petition fails, the desertion not having lasted for the 3 years before the petition.

Petition dismissed.

Solicitors: Spiro & Steele (for the petitioner); Jaques & Co (for the respondent).

R Hendry White Esq Barrister.

[1946] 1 All ER 380