Anne Susan Dewar v Peter Alexander Dewar (1971/HP/D22) [1971] ZMHC 3 (31 July 1971)

ANNE SUSAN DEWAR v PETER ALEXANDER DEWAR (1971) ZR 38 (HC) HIGH COURT BARON J I 31st 25 JULY 1971 (1971/HP/D22) Flynote Family law - Divorce - Divorce Reform Act, 1969, ss. 1, 2 (1) (b) and 2 (3) - Requirements for dissolution of marriage. Family law - Divorce - Irretrievable breakdown - Unreasonable behaviour ■ - 30 Onus. Family law - Divorce - Unreasonable behaviour - Objective test. Headnote The petitioner, who had been married to the respondent for about eleven years, applied for dissolution of her marriage, custody of two minor children of the marriage, and maintenance for herself and the children 35 on the ground that the marriage had broken ■ down irretrievably and that the respondent had behaved in such a way that she could not reasonably be expected to live with him. The respondent cross - petitioned although not domiciled in Zambia and withdrew the cross - petition at the hearing. I Held: 40 (i) Under ss. 1 and 2 (1) of the Divorce Reform Act 1969 there are two separate requirements before ordering a dissolution of marriage - (a) the irretrievable breakdown of the marriage; and (b) the existence of one or more of the facts (a) to (e) in s. 2 (1). BARON J Thus, even if, as a matter of common sense and reality, the court is satisfied that a marriage has broken down irretrievably, it is not permissible so to hold as a matter of law unless one or more of the five requirements is present, the onus in this latter retard being on the petitioner; equally, even if one of these five 5 requirements is present, the court is not permitted to grant a decree nisi if it is satisfied that the marriage has not broken down irretrievably, the onus here being on the respondent. I 1971 ZR p39 (ii) In a petition alleging unreasonable behaviour the test is objective having regard to the characters and personalities of the parties, 10 and the whole background and history of the marriage must be considered. ■ Cases cited: (1) Gollins v Gollins [1964] AC 644. I (2) Re C (A) (an infant), C v C [1970] 1 All ER 309. 15 Legislation referred to: Divorce Reform Act, 1969, ss. 1, 2 (1) (b), 2 (3). J A Hadden, Ellis & Co., for the petitioner. A W W Cobbett - Tribe, Cobbett - Tribe & Co., for the respondent. Judgment Baron J: The petitioner, Mrs Anne Susan Dewar, prays for the dissolution of her marriage to the respondent, custody of the 20 two minor children of the marriage, and ■ maintenance for herself and the children; she alleges that the marriage has broken down irretrievably and that the respondent has behaved in such a way that she cannot I reasonably be expected to live with him.25 The parties were married on the 1st August, 1960, in Scotland. Prior to the marriage the husband (who, like the wife, was born and brought up in Scotland) had spent a year in India, returning some time in 1960. In August, 1960, the couple went to Rhodesia and lived in the Eastern Districts, where the husband was employed on a tea estate ■ ■ about 30 thirty - five miles from Chipinga. The first child, John Bruce, was born on the 2nd September, 1963, and the second, Alison Fiona, on the 29th November, 1964. In 1965 the family went to Scotland on leave, and again in 1967. After this latter vacation the wife wished to remain in Scotland; the husband came back to Africa and finally persuaded the 35 wife to join him. After seeking a post in Malawi he found one in South Africa; they later moved on to Swaziland, and finally came to Zambia in April 1968, where the husband was first employed at Mulobezi Saw mills near Livingstone, then at the Nakambala Sugar Estates at Mazabuka and from October, 1969, by the Lusaka City I Council. 40 In both the wife's petition and the husband's answer and cross - petition various unpleasant allegations are made. At the hearing the cross - petition was withdrawn because, as was acknowledged by Mr Cobbett - Tribe, the husband is not domiciled in Zambia; this court has jurisdiction to hear only the wife's petition, on the basis of her residence 45 in the country for three years next preceding the commencement of the ■ proceedings. 1971 ZR p40 I ■ ■ BARON J I do not propose to deal with the allegations of the parties in any great detail save for the events immediately preceding the commencement of the action. The wife complains of her husband's conduct and attitude towards her; she makes allegations of sexual perversion and 5 abnormality; and she complains that he humiliates and abuses her. The husband complains that his wife is preoccupied with sex, is promiscuous, and behaves provocatively in male company. I have no doubt that both parties have been guilty of serious exaggeration and - to put it at its lowest - have been less than frank with the court. Equally, I 10 have no doubt that there is a substratum of truth in the allegations of both parties. I do not, however, propose to consider these matters in greater detail because, although they are important as part of the background of the marriage and as indications of the feelings and attitudes of the parties towards each other, they are clearly not the reason why the 15 wife alleges that she cannot reasonably be expected to ■ continue to live with the husband. The petitioner prays for dissolution in terms of ss. 1 and 2 (1) (b) of the Divorce Reform Act, 1969. The effect of these provisions, read together with s. 2 (3), is that there are two separate requirements: first, 20 the irretrievable breakdown of the marriage, and second, the existence of one or more of the facts (a) to (e) in s. 2 (1). Thus, even if as a matter of common sense and reality the court is satisfied that a marriage has broken down irretrievably, it is not permissible so to hold as a matter of law unless one or more of the five requirements is present, the onus in 25 this latter regard being on the petitioner; equally, even if one of these five requirements is present, the court is not permitted to grant a decree nisi if it is not satisfied that the marriage has not broken down irretrievably, the onus here being on the respondent (see s. 2 (3)). I am in no doubt that this marriage has broken down irretrievably; 30 the evidence of both parties is overwhelming in this regard. In particular, I do not believe the husband when he says that he sold the major items of furniture, took the proceeds of sale and virtually his total balance at his bank, and took John Bruce with him to Rhodesia, for the purposes of effecting a reconciliation. This is inconsistent with his own statement in 35 evidence that he knew the marriage was at an end. He suggests that when he got to Rhodesia he realised he had made a mistake and came back of his own accord, but it transpired that he returned only after telephoning his legal adviser on the afternoon of the day following his arrival in Karoi. In any event, the evidence of the wife makes it clear - and she 40 expressed herself in similar vein to Mrs Mataka, the Juveniles Inspector - that she is not now prepared to return to her husband, and this in itself means that the marriage has broken down (Lord Reid: HL Vol. 303, Col. 1318). The question is, therefore, whether the requirements of s. 2 (1) (b) are satisfied; if so, the wife is I entitled to a decree. 45 It emerged from the evidence of both parties that the wife was anxious that the family return to Scotland permanently; the husband, on the other hand, wished to remain in Africa - if possible in Zambia. ■ ■ ■ ■ 1971 ZR p41 I ■ ■ ■ BARON J Early this year the wife planned to go overseas for a holiday and as a break for the children, both of whom had been very ill with bilharzia; she intended also to take Alison to a paediatrician in Britain for a further opinion on a urinary complaint from which the child had been suffering since 1968. Both children were entered in the passports of both parents. 5 On 5th April the husband, without telling the wife, took her passport and had John Bruce's name removed; she said he had previously agreed to her taking the children to Scotland on holiday, and had been discussing it as recently as a week before she discovered, on the 17th April, that the boy's name had been removed. (Although the husband denied that he 10 had agreed to the boy going, this evidence of the wife was not challenged in cross - examination.) The husband had said nothing about having done this, in spite of the fact that he knew his wife was bound to find out. When she taxed him he said he had done this because he thought she would not come back from Scotland, she appealed to him to reconsider, 15 but he was adamant. It is worthy of note that although the husband in evidence said that he removed the boy's name from his wife's passport, and later took him to Rhodesia, because he thought his wife would not return, she was not asked whether she intended to stay in Scotland; nor did the husband say 20 that she had ever expressed the intention not to return. Again. the husband said that he took the boy to Rhodesia after he had overheard a telephone conversation between the wife and her brother in Edinburgh, but she was never asked about such a conversation. On the 3rd June, 1971, the family left their home in the ordinary 25 way; the children were dropped at school and the wife was dropped at her place of work. The husband then put into operation the plan he had made a week earlier, when he applied for leave; he sold the refrigerator, a tape recorder and a record player, realising about K500, and drew K400 from his bank account; he left a note for his wife, saying he would telephone 30 her in the evening, and cheque for K50. He went to the children's school, picked up John Bruce, and drove straight down to Chirundu and crossed into Rhodesia; he took with him his personal clothes and the family dog. He says he left items of furniture, but it emerges that he left only minor items such as occasional tables and I covers. 35 The husband said that he went to Rhodesia with John Bruce in order to try to effect a reconciliation with his wife. In the next breath he said he left with the boy because he overheard a telephone conversation between his wife and her brother in which his wife said she was going to sign papers for custody, and he decided to put John Bruce out of her 40 reach. He said also that he hoped his wife would follow him on Saturday the 5th June and that he arranged with a friend, James Watson, to bring her as soon as possible; but it is significant that he did not telephone his wife, and even more significant that Mr Watson said in evidence that he told the wife that her husband had taken John Bruce to Kafue. And Mr 45 Watson's version of the arrangement to bring the ■ wife to Rhodesia was that he was asked to bring her if she wanted to go. ■ ■ ■ 1971 ZR p42 I BARON J I found the husband's evidence on this whole sequence of events quite unacceptable; and Mr Watson (a large portion of whose evidence is admissible only on the issue of the husband's credibility) does not assist him. I am satisfied that the husband realised his major saleable assets and 5 left Zambia in order, as he put it himself, to place John Bruce beyond his wife's reach; I do not accept that it was his intention to persuade his wife to join him, nor that he intended the trip to Rhodesia to be simply a short holiday (the sale I of, in particular, the refrigerator is hardly consistent with such an intention). 10 The wife says that it was the removal of John Bruce's name from her passport which precipitated these proceedings; it was after that action by her husband that she took legal advice, and after he took the boy to Rhodesia in June that she actually started the proceedings. The question for determination is whether this conduct by the husband is such that 15 the wife cannot reasonably be expected to live with him. The test is objective, having regard to the characters and personalities of the parties; and the whole ■ background and history of the marriage must be considered. It is also instructive to note I the definition of cruelty by Lord Pearce in Gollins v Gollins (1) at p. 695: 20 "whether the cumulative conduct was sufficiently weighty to say that from a reasonable person's point of view ■ after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that this petitioner ought not to be called on to endure it." 25 ■ (I stress that for the provisions of s. 2 (1) (b) to be met the conduct need not be as serious as would have amounted to cruelty under the pre-1971 law. ) The history and background of this marriage show that the parties have reached a point of complete lack of trust and active antagonism; as 30 the husband said in evidence, he knew there was no purpose in trying to discuss anything with his wife. Finally the wife finds, one lunch time that the husband has, without any warning, taken one of the children and left; she then finds that he has sold the most valuable items of furniture and that he actually left the country while his friend pretended 35 that he had simply gone to Kafue. Can the wife reasonably be expected to live with the husband after this? I think not. When spouses have reached the stage in their relationship that these parties have reached, inevitably the children will suffer; but I find it indefensible to use the children as ammunition in the parents' war, or to regard them as spoils 40 of that war. Nor is it defensible, because of an admittedly genuine affection for, and desire to keep, a child, to behave in relation to him, and to use him, in a way which can only undermine the stability and security of his life. The wife is clearly a strong character, but I do not think anyone 45 can be expected to live on a volcano. The husband has shown himself to be capable of thoroughly irresponsible and immature conduct of a very grave nature towards his family; in view of the complete breakdown of ■ ■ ■ 1971 ZR p43 I ■ BARON J trust and communication, and the very obvious hostility between the parties, it would be a bold man who could say that the wife would not, at some time in the future, come home from work and find once again that her husband had left with John Bruce. On all the evidence before me I am in no doubt that this must be regarded as, to put it at its lowest, 5 a real possibility. In my judgment the wife has discharged the onus of showing that the husband has I behaved in such a way that she cannot reasonably be expected to live with him. 10 On the question of custody, the interests of the children are, of course, paramount. I have had the benefit of a report by Mrs Mataka, a Juveniles Inspector, and I have spoken with the children individually in chambers. John Bruce was clearly attached to his father, he was also obviously fond of his mother. As to his sister, he complained that she broke his toys, but 15 this was more the condescending, indulgent comment of a big brother than anything else; he seemed fond of his sister and enjoyed seeing her at school. Alison obviously missed her brother and looked forward to seeing him at school. My own observation thus entirely confirms Mrs Mataka's recommendation that the children be kept together; the benefit to both 20 the children of growing up together is so obvious that it does not require to be spelt out, particularly in the case of a brother and sister where the brother is the elder by fifteen months. And the husband in evidence acknowledged that he would like to see the children together. I am satisfied that it would be quite wrong to attempt to alleviate the hurt to 25one or other of the parents by splitting up the children, I have to decide which of the parents should, in the children's interests, have the custody of both of them. Financially, both parties are able to provide good homes. Indeed, although final figures are not yet available, the wife's share of the estate 30 of her deceased parents may enable her to support herself and the children without working; certainly she expects to need to work no more than part time. She intends to return to Edinburgh, where she will live near her brother, a lawyer, and his wife. The husband proposes to remain in Zambia. At the time of the 35 hearing his sister, whose husband is in the merchant navy, was staying with him and helping to look after John Bruce, but she could stay only for a few months; he proposed that his widowed mother, aged 63, should come and look after the children. ■ ■ ■ I Mr Cobbett - Tribe has very properly drawn my attention to Re. C. 40 (A) (an Infant) C. v C. (2). That case is not directly in point because there the custody of a boy of eight was involved without the ancillary issue of a brother or sister, but certain parts of the dicta are instructive. In particular, I cite two passages. Harman, LJ, said this at p. 311 f: ■ "[The learned judge] looked, as he should, at the whole background 45 and considered where had the infant better be - and that is really the only question that the court has to ask. I do not at all agree with expressions of opinion which have fallen, perhaps per in curiam ■ BARON J from judges that a boy should, as a matter of principle, be with his father - just as much as I disagree with the other 'principle', which has altogether been abandoned, that a girl of under three should, as a matter of I principle, be with her mother. Other things being 5 equal, these things may be so, but there is no principle involved in either. They are merely considerations which may weigh with the judge where the scales are nicely balanced." Edmund Davies, LJ, at p. 313, said that he disagreed with the suggestion that there was a principle that a boy of eight should, all things being equal, 10 always be left in the custody of his father, and continued: ■ 1971 ZR p44 ■ "The decision must depend on who the father is, who the mother is, what they are prepared to do, and all the circumstances of the case.... the age and sex of the child are but part of the considerations to be borne in mind." 15 ■ I must therefore consider, as part of my assessment of the kind of home, upbringing and future that each parent proposes to provide for the children, the characters and personalities of the parties. As I have already indicated, I found both of them guilty of gross exaggeration and lack of frankness; I consider the allegations of both of them to have a certain 20 foundation. But when all that has been said, the wife displayed certain qualities which are sorely lacking in the husband, and which are very important for the children, namely stability and maturity. I am in no doubt that the children's prospects I are better in their mother's custody than their father's. 25 Mr Cobbett - Tribe submitted that, because of the wife's promiscuous tendencies, it would be better for the children to be with the father. This submission is based on the admitted adultery of the wife during the period March to August 1966, and on the general allegations of provocativeness in the company of men, which were denied. The husband did not, however 30 contend that the wife is not a fit and proper person to have the custody of the children, and I do not regard the adultery as ground for depriving the children of the positive advantages of being in their mother's custody. There will be a decree nisi with costs. Custody of the two children is awarded to the petitioner; the respondent is to be afforded the fullest 35 possible access to the children on conditions to be agreed, with liberty to apply. Maintenance for the petitioner and the children, to be fixed by the Registrar, will be paid by the respondent. Order accordingly ■ ■