Thomas v Thomas

 

Thomas v Thomas

FAMILY; Other Family

PROBATE, DIVORCE AND ADMIRALTY DIVISION

LORD MERRIMAN P AND HODSON J

16, 17, 18 OCTOBER 1945

Husband and Wife – Desertion – Quarrels between parties – Wife’s withdrawal from cohabitation – Wife’s offer to resume cohabitation rejected by husband –

Husband continuing in desertion by refusal of wife’s offer – Summary Jurisdiction (Married Women) Act, 1895 (c 39), s 4.

The parties were married in Jan 1944. On 12 March 1945, the wife left her husband because of quarrels and his refusal to provide her with adequate

necessities. On 12 June 1945, they met and the wife’s offer to return was rejected by the husband. The wife then took out a summons against him for

desertion under the Summary Jurisdiction (Married Women) Act, 1895. An order was made against the husband and the findings of the justices were as

follows: (a) the quarrels and other similar incidents between the parties induced the wife to leave her husband; (b) the refusal 􀂭 170􀀉 by the husband to

resume cohabitation on 12 June 1945, and other circumstances, constituted desertion, notwithstanding his subsequent offer on the day of the hearing to resume

cohabitation. The husband appealed on the ground that the finding of desertion was unjustified:—

Held – (i) A mere withdrawal from cohabitation by a wife, unaccompanied by any other matrimonial misconduct, entitled her to an order for maintenance if

there was repentance and a genuine desire to resume married life, even though such separation on her part had been unjustified in the first instance.

(ii) by the same process a refusal by a spouse to accept a genuine offer to resume cohabitation turned that spouse into a deserter.

(iii) on the facts here, the husband was guilty of desertion.

Notes

The principle laid down in Fitzgerald v Fitzgerald that desertion can only take place when the facts relied on bring to an end an existing state of cohabitation,

has been frequently discussed, and, since the decision in Pardy v Pardy it has been inapplicable where the separation existing at the time of the alleged

desertion was consensual. It is now held that there is no logical ground for its application where the separation originated in the adverse act of one of the

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spouses. A wife, therefore, who has withdrawn from cohabitation, may be a genuine offer to return, turn her husband into a deserter, just as it was held, in

Jones v Newtown and Llanidloes Guardians, that a wife who has left the matrimonial home may, by the expression of a genuine desire to return, render the

husband once more liable for her necessaries. It must be pointed out that the court was dealing in this case with mere separation and the decision must not,

therefore, be regarded as necessarily applicable where there has been some misconduct other than withdrawal from cohabitation.

As to Desertion, see Halsbury, Hailsham Edn, Vol 10, pp 654–659, paras 963–969; and for Cases, see Digest, Vol 27, pp 306–319, Nos 2837–2977.

Cases referred to in judgment

Fitzgerald v Fitzgerald (1869), LR 1 P & D 694, 27 Digest 307, 2845, 38 LJP & M 14, 19 LT 575, subsequent proceedings (1874), LR 3 P & D 136.

Pardy v Pardy [1939] 3 All ER 779, [1939] P 288, Digest Supp, 108 LJP 145, 161 LT 210.

Jordan v Jordan [1939] 2 All ER 29, [1939] P 239, Digest Supp, 108 LJP 104, 160 LT 368.

Jones v Newtown & Llanidloes Guardians [1920] 3 KB 381, 27 Digest 76, 601, 89 LJKB 1161, 124 LT 23.

Thomas v Thomas [1924] P 194, 27 Digest 315, 2925, 93 LJP 61, 130 LT 716.

Russell v Russell [1895] P 315, 27 Digest 318, 2960, 64 LJP 105, 73 LT 295.

Appeal

Appeal by the husband from an order, dated 1 August 1945, made by the justices for the county of Lancaster, sitting at Widnes, under the Summary

Jurisdiction (Married Women) Act, 1895, s 4. The facts are fully set out in the judgment of Lord Merriman P.

H C Mortimer for the appellant.

G A Gardiner for the respondent.

18 October 1945. The following judgments were delivered.

LORD MERRIMAN P. This is an appeal from the justices for the county of Lancaster, sitting at Widnes. On 1 August 1945, the justices had before them a

complaint by the wife that her husband had deserted her. They found the complaint proved, and made an order in her favour for 23s a week. Nothing turns on

the question of amount. The order is challenged on the ground that there was, in the circumstances of the case, no justification for the finding of desertion.

This is one of the cases in which the parties were only married a very short time. They were married in January 1944, and a child was born in August

1944. The child died in November, and on 12 March 1945, the wife left the husband and has not since returned to him. We have had all the evidence read to

us upon which the justices based their findings. The case on the evidence falls naturally into two parts, and was so dealt with by the justices, and, on the view

that I take of the matter, in the light of what counsel for the wife has said to us, I think it will be unnecessary to review the evidence in detail. I have already

said that the wife left the husband on 12 March 1945. She did so, she said, because he was always nagging her and insulting her; but this is clear beyond any

doubt, that there was an interview (I think in connection with the household goods) on 12 June and on that day the wife says that she made a definite offer to

return, which was rejected by the husband. Thereafter we have correspondence 􀂭 171􀀉 in which it is quite clear that the rival positions about what occurred

on 12 June are asserted and re-asserted, the husband denying that any such thing occurred and the wife re-asserting that it did occur, and it is quite plain, on the

face of the correspondence, that the husband refused the offer of the wife to return, which was renewed and repeated in these letters, except upon the

condition, never withdrawn, that she would admit that she was lying about the interview of June 12.

That raises two distinct positions: first, what was the situation before 12 June with regard to the wife’s withdrawal from cohabitation? With regard to

that the justices say that they:

‘… were of the opinion that the constant nagging of the wife by the husband, to use the complainant’s words, in addition to his refusal to provide

her with adequate necessities, caused her to leave him.’

They do not say, in terms, that they consider that the circumstances to which they refer were a sufficient justification for her leaving him; they may have

meant to say that. If they so held, and if the evidence warrants such a finding, there is nothing more to be said about this case; the wife would be in the right

from the first, and nothing that has occurred subsequently could possibly put her in the wrong. But it is unnecessary, in my opinion, to examine the evidence,

because counsel for the wife has said that he is quite prepared to accept that as a mere statement of fact, that these were the things which in fact caused the

wife to withdraw from cohabitation, without going the step further and saying that she was justified thereby. I am bound to say that I think that that is a very

wise way to deal with the matter, because the note of the evidence does make it clear that the material for saying that there was some grave and weighty reason

for breaking up this marriage was somewhat slender. I am content, therefore, to deal with this case on the basis that the justices have not necessarily

determined that matter, but have merely stated, quite rightly, that it was these incidents, quarrelling and the like, which induced the wife to leave home.

That brings me, therefore, to the second position: whether, on the footing that there is no finding in her favour that she was justified in bringing the

cohabitation to an end on 12 March she can set up a state of desertion against the husband by what she says occurred on June 12. Here again there is a conflict

of fact, and upon that the justices find as follows (after the passage which I have already read):

‘But later she, desirous of returning to him, informed him that she was desirous of resuming cohabitation, but this the husband refused to do,

informing her that it was too late. The justices found that such refusal to resume cohabitation on June 12, 1945, and other circumstances, constituted

desertion, notwithstanding his subsequent offer on the day of the hearing to resume cohabitation.’

The husband in the face of the court made such an offer, but it is not surprising in view of the terms of his letters, to which I have referred, but which I do not

propose to read at length, that the justices paid very little attention to that. They had before them the two conflicting stories about what happened on 12 June

and they believed the wife. I see no reason whatever for differing from their conclusion upon that matter, and I propose to deal with this case on the footing

that that finding is justified.

That brings me to what I think is the real point of importance in this case, because, I think for the first time, this court is driven to decide whether or not

there is anything whatever left of the well-known passage in Fitzgerald v Fitzgerald. Before I read it, the argument of counsel for the husband, in a word is

this: it must now be accepted that when the cessation of cohabitation has been brought about by mutual agreement, if that agreement is brought to an end the

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resumption of cohabitation is no longer a condition precedent to the assertion of desertion, but in any other circumstances, and, in particular, where the spouse

now complaining of desertion was the person responsible for the breaking up of the cohabitation, everything that was said in Fitzgerald v Fitzgerald still

stands unimpaired. There, after giving instances of what would amount to desertion, Lord Penzance says this ((1869), LR 1 P & D 694, at p 698):

‘But if the state of cohabitation has already ceased to exist, whether by the adverse act of husband or wife, or even by the mutual consent of both,

“desertion” in my judgment, becomes from that moment impossible to either, at least until their common life and home have been resumed. In the

meantime either party may have the right 􀂭 172􀀉 to call upon the other to resume their conjugal relations, and, if refused, to enforce their resumption;

but such refusal cannot constitute the offence intended by the statute under the name of “desertion without cause.“’

It is quite clear that whatever qualifications have been made upon that passage in the years between, it ceased to have any validity in the case of a consensual

separation after the decision of the Court of Appeal in Pardy v Pardy. But, counsel for the husband says, that has left untouched the other limb of the

sentence: “If the state of cohabitation has already ceased to exist, whether by the adverse act“—I emphasise the adverse act—“of husband or wife, ‘desertion,’

… becomes from that moment impossible to either … ” I have ventured to point out on an earlier occasion that if that sentence is to be taken literally, it

prevents the spouse against whom the adverse act has been committed, from asserting subsequently that the other spouse has become a deserter, which, I am

bound to say, is a proposition which I would never be prepared to assent to. I cannot really imagine that Lord Penzance meant that, but, however that may be,

the question we have to face now is whether, assuming this wife not to be in a position to justify her admitted withdrawal from cohabitation on 12 March she

could, by what was found to have occurred on 12 June not merely put herself right, but, to use the phrase which counsel for the husband employed, turn the

tables on her husband and put him in the position of being the deserter from thenceforward.

I do not propose to attempt to survey all the cases in which this well-known passage in Fitzgerald v Fitzgerald has been canvassed and discussed. I am

content to excuse myself from doing so by calling attention to the fact that I have done it in outline once before. The passage will be found in Jordan v

Jordan, where I referred ([1939] 2 All ER 29, at p 35) to four cases as examples of the proposition that this judgment was not intended to be and could not be

taken as being an exhaustive exposition of the law relating to desertion, and I also pointed out that history shows that it was not even the law which was

ultimately applied in Fitzgerald v Fitzgerald, for, not long after Lord Penzance’s decision, after some two years or more had expired Sir James Hannen gave

the wife a decree on the grounds of adultery and desertion, though it is plain beyond the slightest doubt that there had been no resumption of cohabitation,

there had been no restitution suit, and there had been nothing more on her part than a formal demand that her husband should resume married life.

But we are asked to deal with this matter not upon the basis that Fitzgerald v Fitzgerald has been qualified over and over again, but upon the basis that

that one sentence is either right or wrong; we are asked to say, one way or the other, whether, in the case where the complainant was originally the

wrong-doer, the tables can be completely reversed by an appropriate action on his or her part short of a decree for restitution of conjugal rights. I am prepared

to deal with the matter on that footing. I am bound to say that in principle I cannot see that there is any logical distinction between the case in which the

original separation was by mutual consent and the case we are discussing. For the purposes of the argument I will assume, as in this case, that the allegation is

that the wife was in the wrong in the first instance in withdrawing. In the one case, the consensual separation, the husband is justified in remaining apart by

the fact that there has been a mutual consent; in the other case, so long as that state of things continues, he is justified in living apart and in refusing to

maintain his wife by the fact that it is his wife who, without justification, has withdrawn from cohabitation. The question is whether, if the wife puts herself

right, and restores herself to the position in which she is entitled to be maintained by her husband, there is any reason in principle why, by that very fact, she

should not be entitled to make her husband the deserter if he refuses to comply, just as in the case of consensual separation it is established that when the

agreement has been repudiated, and the repudiation accepted, so that the separation is no longer consensual, and one of the spouses desires to assert conjugal

rights to the full, it is not a condition precedent to the establishment of desertion that cohabitation shall have been resumed.

I wish to make it clear that I am dealing only with the class of case in which there is a mere separation, uncomplicated by misconduct other than

withdrawal 􀂭 173􀀉 from cohabitation. We are not, for example, dealing with the case of a wife who has committed adultery, a case which stands in a peculiar

position, nor are we dealing with the case of a husband who has driven his wife from home by cruel conduct. There again, special considerations apply. We

are dealing with a case where there is a mere separation, assumed to be unjustified on the part of the wife, in the first instance. With regard to such a case, it is

clear beyond the slightest doubt that at any time the wife can repent, and by a mere repentance and an expression of a genuine desire to resume married life

can restore herself at once to the position in which her husband is again bound to maintain her. That elementary proposition is very well expressed in Jones v

Newtown and Llanidloes Guardians, where the Earl of Reading LCJ, says ([1920] 3 KB 381, at p 384):

‘There is no doubt that at common law if a wife chooses wilfully and without justification to live away from her husband she cannot, so long as she

continues absent, render him liable for necessaries supplied to her, or for her maintenance by the union, [because that was a case where the union was

acting] or for maintenance for herself, for the reason that she has of her own free will deprived herself of the opportunity which the husband was

affording her of being maintained in the home. But the relief of the husband from the obligation of maintenance continues only so long as she

voluntarily remains absent. Her absence, although wrongful, does not affect the relationship of husband and wife. She is entitled after however long a

period of absence to return at any time.’

Shearman J in the same case, after saying that, so far as he was aware, adultery by the wife was the only case in which the husband’s obligation was

permanently determined, continues (ibid, p 385):

‘Where the wife voluntarily and without just excuse leaves her husband, so long as she of her own free will remains absent she cannot pledge his

credit for necessaries, and the guardians cannot obtain a maintenance order against him in the event of her becoming chargeable. Her desertion of her

husband does not, like her adultery, determine his obligation, it only suspends it during the time that she wilfully absents herself. Here, she might have

returned to her husband and called upon him to maintain her at any time before she became insane.’

Then it was held that upon her becoming insane her freedom of will came to an end, and the obligation of the husband revived.

I am not upon that point. I am upon the general principle. It is established beyond a shadow of doubt that by taking appropriate steps to repent the wife

can re-establish the obligation of the husband to maintain her. The question is whether there is any reason why, by the same process, she should not turn the

husband into a deserter without the preliminary of a restitution suit. Quite plainly, it is not necessary for the purpose of re-establishing her right to

maintenance. I am bound to say that I can see no logical reason why the process which re-establishes her right to maintenance should not also establish her

right to assert that the husband in his turn becomes the deserter, and in my opinion that is the inevitable conclusion from the well-known passage in the

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judgment of Warrington LJ, in Thomas v Thomas. That was a case in which the husband had driven his wife from home by cruel conduct and sought to bring

that state of what we call constructive desertion to an end by a mere offer to resume cohabitation. The Divisional Court of this Division had held that in these

circumstances such an offer was derisory, and was not sufficient to put an end to the state of desertion, and that decision was upheld by the Court of Appeal.

Dealing with the case of a mere withdrawal from cohabitation, uncomplicated by any other matrimonial offence, Warrington LJ says ([1924] P 194, at p 201):

‘The learned judges of the Divisional Court do not decide, nor do I, that where there is nothing but a turning away of the wife, followed by a

genuine expression of a desire on the husband’s part for her return, the desertion would continue notwithstanding. In each case the question must be

determined on its own merits, and here I think with the Divisional Court that the wife had reasonable cause for her refusal to return, and, therefore, the

desertion was not determined.’

That being a case in which the husband had driven the wife away by cruelty, the natural antithesis to that case is one in which he had merely turned her out,

without any accompaniment of cruelty or anything else but mere desertion. The same thing, mutatis mutandis, must apply to the spouse who has merely

withdrawn from cohabitation without any concomitant misconduct of another 􀂭 174􀀉 kind. It will be observed that Warrington LJ does not say anything

about a turning of tables. He merely says, it is true, that desertion in such circumstances cannot be held to continue.

Now let us see how he deals with the other case, the case they were deciding where it was the husband’s cruel conduct which had driven the wife out, and

where it was his failure to give any assurance that it would not be repeated that was held to justify the wife in refusing to accept a mere offer to resume

cohabitation. With regard to such a case he says ([1924] P 194, at p 201):

‘It has been determined by this court that a decree for restitution of conjugal rights cannot be obtained by a party whose conduct affords reasonable

grounds for a refusal by the other party to afford those rights: Russell v. Russell. In my opinion the same principle applies to the present case; there was

ample ground for the wife’s refusal to return, and under those circumstances I think the actual separation must continue to have the quality of desertion

by the husband; otherwise [and these are the important words] I see no alternative except to regard the wife as deserting him, which would be

impossible.’

Now just see what that means: it must mean that if by a mere offer to resume cohabitation, which is refused by the wife, the circumstances are such that the

husband puts himself in the right, he turns the wife into the deserter, and that it was just because the circumstances in that case were not such that he could do

so that no such turning of the tables was effected. In my opinion, although it is not expressed in the passage which I quoted first, it necessarily follows from

the reasoning of Warrington LJ that if the circumstances are such that the former deserter has merely to make a genuine offer to resume cohabitation to purge

himself or herself of desertion, its refusal in turn by the other spouse turns him or her into the deserter; and that result did not follow in the case with which

they were dealing solely because a mere offer was not sufficient to get rid of the misconduct which had driven the wife away. But suppose a case where the

wife had indeed been justified in withdrawing by the husband’s conduct, but the cirumstances have changed—(it is not necessary to go into detail, but I am

supposing the class of case in which beyond any shadow of doubt the husband had given such assurances for good behaviour in the future that the wife could

not possibly be held justified for all time in refusing to return to cohabitation)—if, in these circumstances, an offer is made which the wife is not entitled to

refuse, then the alternative put by Warrington LJ would, in my opinion, expressly become operative. In such a case it would be right to say that there is no

alternative except to regard the wife thenceforward as deserting him. A fortiori, in the case where there is no complication of misconduct and nothing but a

mere withdrawal from cohabitation, once the original wrongdoer puts himself or herself right, it seems to me to follow necessarily that by the same process, so

long as the other spouse is obdurate, the position that that spouse becomes the deserter is established. Accordingly I am prepared to say that, in my opinion,

after the decision of the Court of Appeal in Pardy v Pardy the limitation on this subject contained in the passage in Fitzgerald v Fitzgerald, which I have

already read, can no longer be regarded as being the law.

HODSON J. I think that this appeal must be dealt with on the footing that the wife’s original departure from the husband was wrongful, and counsel for the

wife has assented to that course being taken. The justices have given the reasons which the wife assigned for her departure, without in terms saying that they

were sufficient in law, and for my part I am bound to say that on the face of them the grounds for leaving are not very strong. The position then arises (and I

need not again go over the facts) that the original departure being wrongful, the erring wife has asked to be restored to her position and the request has been

refused, and it has been argued that in that state of affairs the husband cannot be a deserter because that would be turning the tables upon him, his wife having

up to that moment been the deserter herself.

I agree that since the decision of the Court of Appeal in Pardy v Pardy it is quite impossible to hold that where the original parting is consensual,

desertion cannot arise in circumstances like this, and I also agree that it is impossible to draw any distinction in principle where the original separation is

brought about by the adverse act of one spouse or the other. After all, in many cases where there is a separation agreement, that agreement follows after

􀂭 175􀀉 a state of desertion. There the principle in Pardy v Pardy would surely apply, and the agreement could be brought to an end and desertion could arise

even on the husband’s own argument, but he says that, if the desertion continues throughout, the tables cannot be turned in any circumstances except by the

bringing of a suit of restitution of conjugal rights. That is a very odd circumstance, because on facts like these, where there has been a mere turning away of

one spouse from the other, there can be no defence to a suit for restitution of conjugal rights, and it is said that the court must perform what amounts, really,

merely to a ministerial act, in order to give the one who is then in the wrong the necessary time to repentance—14 days, or such other time as the court might

give. But that would be a position in which I should be reluctant to think that the court was now placed.

The question, as Lord Merriman P, has said, of turning the tables, had occurred to Warrington LJ, in Thomas v Thomas, where Fitzgerald v Fitzgerald,

relied upon by the appellant here, was not cited, and where the precise point was not in question, but the view of Warrington LJ was, in my opinion, perfectly

clear. Since the decision in Pardy v Pardy there is no longer any room for doubt that the principle laid down in Fitzgerald v Fitzgerald has been got rid of in

the case of a parting by consent, and I see no reason at all to doubt that it has gone now in a case where the original parting was by the adverse act of one

spouse or the other. Indeed, I go so far as to say, even though I am unable to recollect the details of any particular cases, that there have been in past years in

these courts, maybe in undefended cases, decrees pronounced where the original wrongdoer has been the petitioner, and the only way in which he or she has

put the matter right has been by making an approach to the other side, whether personally or by letter or both, and, as in this case, the approach has been

reflected.

I agree, therefore, that this appeal must be dismissed.

Appeal dismissed with costs.

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Solicitors: Pritchard, Englefield & Co agents for Sydney Haworth, Liverpool (for the appellant); Bentleys, Stokes, & Lowless agents for Steels, Warrington

(for the respondent).

R Hendry White Esq Barrister.

[1946] 1 All ER 176