B e f o r e :
LORD JUSTICE MAY
and
MR. JUSTICE EWBANK
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JUNE CONSTANCE BUFFERY
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Appellant (Petitioner)
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and
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LEONARD RONALD BUFFERY
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Respondent (Respondent)
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters Limited, Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London WC2).
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MR. ROBIN ROWLANDS (instructed by Messrs Harrison Clark, Worcester) appeared on behalf of the Appellant/Petitioner.
MR. CHRISTOPHER JAMES (instructed by Messrs Johnson & Co., Worcester) appeared on behalf of the Respondent/Respondent.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
LORD JUSTICE MAY: This is a wife petitioner's appeal from the decision of Mr. Recorder Stembridge of 19th December 1986, dismissing her petition for the dissolution of her marriage to the respondent. Although the relief sought in the notice of appeal was for that order to be set aside and a decree for dissolution of the marriage to be granted to the petitioner, in the course of argument Mr. Rowlands, for the appellant, sought and obtained leave to amend the notice of appeal, to ask in the alternative for a new trial of the issue between the parties.
This was a suit based upon the provisions of s.1(2)(b) of the Matrimonial Causes Act 1973. The learned judge found, and there is no dispute, that the marriage had irretrievably broken down. The appellant however contends that in considering whether the court was satisfied of the requirement in subsection 2(b) the learned judge below applied the wrong test. It was submitted that had he applied the right test he ought to have granted a decree, or alternatively that the matter should go back to be reheard.
The parties were married in July 1964. They are now respectively 51 and 62 years of age. There are three children, all of them girls. They are now grown up and employed; two live at home. Although, when the matter came before the learned recorder, the husband and wife were still living under the same roof, we understand that recently the situation has altered to the extent that, at any rate temporarily, the wife has moved out of the matrimonial home and is living elsewhere. The two girls apparently still remain at home.
The petition was filed on 6th December 1985. The particulars of behaviour relied upon, even with later additions, could not be said to have raised the strongest of cases under the statutory provisions.
Before turning to the findings of the learned recorder, it is convenient to deal with a preliminary question which arose in the course of argument. In his judgment the learned recorder referred to the cause of the irretrievable breakdown and held that this could not be blamed on the respondent. It was submitted on behalf of the appellant, and not contended otherwise on behalf of the respondent, that the requirements in s.1(1) and (2) of the 1973 Act are to be read disjunctively; that is to say that there is no requrement, on a proper construction of the relevant statutory provision, that the behaviour of the respondent complained of must be a cause of the irretrievable breakdown before the statutory requirements are satisfied. I agree that they are separate requirements. First, that the marriage has irretrievably broken down and, secondly, that the court is satisfied of one or more of the facts set out in the paragraphs in subsection (2). I do not think that point needs further elaboration.
In asking himself whether or not the petitioner had made out her case for a decree of dissolution, in my opinion the learned recorder applied those considerations and tests which might have been apposite if he had been considering a case of constructive desertion or cruelty in the old days. But on the authorities this is not the correct test in law under the new statutory provisions. In the course of his judgment the learned recorder said:
"..... I have to bear in mind that the conduct alleged against the Respondent must be grave and weighty and that conduct must be such that the Petitioner cannot reasonably be expected to continue to live with the respondent."
Later, he said:
"..... I cannot find that his conduct in respect of those matters should be regarded as gross or grave and weighty."
The same theme was repeated five lines down the page, where the recorder concluded:
".....the cause of the breakdown cannot really be levelled at the Respondent in the sense that he has been guilty of misbehaviour of a grave and weighty nature."
We were referred to a number of cases. The latest one, O'Neill v. O'Neill [1975] 1 WLR 1118, refers to the earlier case of Livinqstone-Stallard v. Livingstone- Stallard [1974] Fam. 47. There is a brief passage in that earlier case which I wish to quote. The question in issue was the husband's behaviour, the extent of it and the test which had to be applied to decide whether or not it satisfied the statutory requirements. At page 54 Dunn J. referred to the earlier decision of Ormrod J. in Pheasant v. Pheasant, and went on to say:
".....I am not sure how helpful it is to import notions of constructive desertion into the construction of the Matrimonial Causes Act 1973. Nor, speaking for myself, do I think it helpful to analyse the degree of gravity of conduct which is required to entitle a petitioner to relief under section 1(2)(b) of the Act."
It may be that particular conduct can be stigmatised as so grave that it is behaviour after which the petitioner cannot reasonably be expected to live with the respondent. But for my part, with Dunn J. in that case, on a proper reading of the statute and an assessment of the facts of a given case, the gravity or otherwise of the conduct complained of is of itself immaterial. What has to be asked, as will appear from the judgment in O'Neill, is whether the behaviour is such that the petitioner cannot reasonably be expected to live with the respondent. If it is grave, the answer is probably no.
The case of O'Neill was again a conduct case within section 1(2)(b) of the Matrimonial Causes Act 1973 in which the question of the proper approach arose. At page 1121, after disagreeing with the test which had been applied by the judge below, Cairns L.J. put the matter in this way:
"The right test is, in my opinion, accurately stated in Rayden on Divorce....:
'The words "reasonably be expected" prima facie suggest an objective test. Nevertheless, in considering what is reasonable, the court (in accordance with its duty to inquire, so far as it reasonably can, into the facts alleged will have regard to the history of the marriage and to the individual spouses before it, and from this point of view will have regard to this petitioner and this respondent in assessing what is reasonable.'"
Thus one looks to this husband and this wife, or vice versa, but one also looks at what is reasonable. That is the point referred to by Roskill L.J. in his judgment in the same case at page 1125 where he adopted as correct the test which Dunn J. had applied in the Livingstone-Stallard case in a part of his judgment which I have not quoted. Roskill L.J. said:
"I would respectfully adopt as correct what Dunn J. said in Livingstone-Stallard, at p.54:
'Coming back to my analogy of a direction to a jury, I ask myself the question: Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties.'"
That in effect is posing precisely the same test as was spoken to by Cairns L.J. quoting from Rayden. One considers a right-thinking person looking at the particular husband and wife and asking whether the one could reasonably be expected to live with the other taking into account all the circumstances of the case and the respective characters and personalities of the two parties concerned. That, it will readily be appreciated, is a substantially different test from that applied by the learned recorder in directing himself in the instant case.
That, however, is not an end of the matter, because the learned recorder did make certain findings of fact in the context of the petition and answer before him. (I should mention that the answer filed put both matters in issue and that was why this matter came as a defended suit before him).
The matters of which complaint is made in the original and supplemental particulars went, first, to the questions of finances between husband and wife and the way in which the husband had dealt with them and, secondly, to whether the husband ever took his wife out on social occasions, she contending that he did not. That failure on his part was at least part of the behaviour of which she complained, which led to the reasonable conclusion that she could not be expected to live with him.
In so far as going out together socially was concerned, the recorder made a more precise finding:
"I think the situation was this - the wife was not keen to go out when the children were growing up and they simply got to a stage when they did not go out socially except on rare occasions. By the time the children had grown up and they could have gone out socially, they were quite unable to communicate. In that respect, I do not think the blame is attached to one more than the other. As the wife put it on more than one occasion - we just do not communicate. We have nothing in common."
Then, towards the end of his judgment, the recorder said:
"Although the Petitioner has established that the marriage has irretrievably broken down, the cause of the breakdown cannot really be levelled at the Respondent in the sense that he has been guilty of misbehaviour of a grave and weighty nature. The Petitioner has been quite candid about this; when asked she said the marriage has broken down; we cannot communicate; we have nothing in common - and there lies, in my view, the crux of the matter. The situation is that neither is really at fault."
Reading the judgment of the recorder in full, I conclude that in so far as any dissension over money matters was concerned, although the husband had been somewhat insensitive, nevertheless this did not constitute sufficient behaviour within the relevant statutory provision. In truth what has happened in this marriage is the fault of neither party; they have just grown apart. They cannot communicate. They have nothing in common and there lies, as the learned recorder said, the crux of the matter.
It was submitted that if the matter went back to the learned recorder he could make various findings on the evidence about the sensitivity, for instance of the wife in relation to these matters and various further findings of fact about the nature and extent of the husband's behaviour complained of. I, for my part, do not think he could. He heard all the evidence and the conclusion to which he came was that nobody was really at fault here, except that both had grown apart. In those circumstances, in my judgment, clearly the petitioner wife failed to make out her case under section1(2)(b), although she satisfied the learned recorder that the marriage had broken down irretrievably. I do not think any advantage would be gained by sending this matter back for a retrial. The matter was fully investigated and the learned recorder made the findings to which I have referred. In those circumstances, I would reach the same conclusion as did the learned recorder, namely that the petition should be dismissed, but for reasons different from those relied on by him, having regard to the authorities to which I have referred.
MR. JUSTICE EWBANK: I agree.
Appeal dismissed with costs, not to be enforced without the leave of the court. Legal aid taxation for both parties.
