Maclune v Maclune (Civil Cause 722 of 1979) [1980] MWHC 18 (26 July 1980)

IN THD HI! COURT OF MALAWI AT BLANTYFE CIVIL CAUSE No. 722 of 1979 BETWEEPR: FELLIDA MACLUNE erekene re e869 a6 mucistiaiie PET IT IONER versus LUCKWELL MAGLUNE eis ee scces ag cists RESPONDENT Comams POPPING, Aged. Mbalame: Principal Legal Aid for the Petitioner Respondent: not present; unrepresented Sonani: Official Interpreter Kelly: Court Reporter JUDGMENT In this matter the petitioner, Fellida Maclune, petitions for the dissolution of her marriage to the respondent, Luckwell Maclune. The zround alleged in the petition is adultery. The particulars of the adultery allege that about November /Tecember 1977 the respondent committed adultery with a woman unknown, as a result of which he contracted a venereal disease. The parties were marrie¢ at the Fegistrar General's Office i: Blantyre on the 24th November 1973. Both were lalawians and I am in no doubt that they are domiciled in Malawi. There are three children of the marriage, Fees, hoy and Grace. The petitioner seeks their custody and she also seeks an order that the respondent do maintain them. The petitioner gave evidence or oath in which she dealt with her marriage to the respondent from which 1 find that the parties were married as alleged in the petition on the 24th November 1973. Thinzs began to go wrong in about October 1976 when the respondent, who was working outside Blantyre, began to stay away from home for longer and longer periods, He blamed his absence from the matrimonial home on his work, saying that he was working overtime ‘and that his bosses were difficult. In a@@iticn tc his absence the petitioner noticed that even when the respondent was at home he seemed unwilling to.have sexual intercourse with her ard he complained that he was too tired. Responcert said in reply to her queries on this point “Sometimes I just regard vou as a sister". This. dig rot satisfy the petitioner, who clearly became suspicious. In Ilecémber 1977 the respondent Was working at Salima. He came home on leave. His wife noticed thet he had a certain wetness on the front of his trousers She asked him atout it and he said that he #as washing in the kitchen and had wet the trousers while doing so. However as the same wetness was there or the following cay the petitioner was not convincec and again asked him about tia The respondent confessed that he had a venereal disease and thet he was being treated at a mission hospital, Re /The aoe The petiticner's father gave evidence that he discussed the responcent's failure tc have sexual interccurse with the petiticner with the respencent and that he arranged fcr him tc see an herbalist: the respondent did not «sep the appcintmert. There was no sviderce tc cerroborate that cf the petiticrer. 1 fcurd the petiticner tc be an impressive witness anc I believed her. It is nct necessary to prove advitery by Cirect evidence and it is indecd rare that such evidence is available. Howevor, the court usually lcecks fcr some ccrrceboration. It wceuld appear from the Gictum cf Cockburn, C. J. ir Febinsen v. Eebinsen and Lane (1558) 15. @ T. 362, that this is a matter of practice cnly for in that case he <bserved: "The Court is bound to act on any eviderce legally admissible by which the frct cf adultery is established anc if therefcre there is evidence net cpen tc excepticn, cf admissicr of sdiltery by the principal respordent, it would be the duty -f the ccurt tc act on such admissicns even thcugh there might be a tctal absence cf all other aviderce te suprert them.” This is such a case. The evidence ccnsists sclely of the petiticner's evidence of the respondent's admissicn. But such acmissicon appears te be valid evidence that he hac ccmmitted acultery and the fact thet he admitted he wes suffering from a venereal discase is prima facie evicence that he was gu.lty cf adultery, see Stead _v. Stes (1927) S. J. page 291. In LAPEY OF DIVORCE (14th edn) at paragraph U72 on page 412 it is sugzested that the fact cf service cf the petition on the respcndent and his failure tc enter = cefence might be a slight measure cf corrcboraticn. ‘s te the stardard of prref required of a petitioner, secticn 7 (2)(a) ef the TPiverce *ct reunires the ccurt te be satisfied that the case fcr the petiticner hs beer proved and sub-secticn (b) requires the ccurt tc be satisfied that there hes net beer connivance or ccndenaticn ane by sub-secticn (c) there must be no ec llusions lam satisfiec that the petitioner h>s net connived at or ecndcned the alleged acultery ncr has the petition been presentec ccllusively. Tiscreticn is not scught. \dultery was previcusly kncwn as criminal conversation anc the standerd cf pricf tc be applied was quasi criminal. In Bater v. Bater (1951) Probate Fepcerts at page 35, which was a cruelty case, the Commissicner whe heard the case directed that the standard cf precef cf the cruelty was procf beyond a reascnable dcubt. such directicn wis upheld. Ecwever, it is clear that es adultery is nct a criminal cfferce the analogies and precedents of the criminal law cc ret apply. Mcrdaunt v. Monoreiffe (1574) 2 LF 2 HL, 474. The standoerd cf precf appears t: be that laid dcwn in Eastable v. Eastable (1968) 1 WLR at p.1684. In that jucgment Willmer, LJ. reviewed the authcrities en the questicn cf the standard cf preof With particular atternticr tc Prestcn Jones v. Preston Jones (1951) ‘. C. p.391 and Blyth v. Blyth (1966) %.. C. He cbservec at page 1686: [then tee “hen Blyth v. Blyth and Pugh was befcre this court I venturec tc say that 1 egrecd with the view expressed by Denning, Led. in Eater v. Bater and adepted by this Court in Hornell owe Neuberzer Preducts Lte. In that cft cuoted passage Denring, L. J. saic — ‘The difference of cpinicn which has been evoked abcut the standard cf precf in recent cases may well turn out te be mere a matter of werds than anything else. It is of course true thet by our law a highor Standard cf precf is reevired in criminal cases than in Civil cases, but this is subject te the qualificaticn that thcre is ne absclute standard in cither case. In criminal cases the charze must be preved beyond teascnable doubt, but there may be degrees of precf Within that standare, is Best, C. J. and many other great judzves have said 'In prepertien as the crime is cnormcus, sc cught the preef te be clear." 3c alse cn civil Cases the case may be prcved by a prependerance cof prebability, but there may be deszrees of prebability within that standard. The degree cepends cn the subject matter. & civil ccurt when ecnsicsring a charge of FYaud will naturally recuire fcr itself a higher cegree of prcekability than that which it would reevire wher asking if negligence is established. It does not adcpt sc high a cosrec as a criminal ccurt... even when it is considering a Charge of a criminal nature: but Suill it does require a cegree cof prcebability which is ocmmensurate with the cccasicn. Likewise a diverce ccurt shculd require 4 déerse of prcebability which is preporticnate tc the subject matter.' ‘ “Villmer, Led. went cn = “Until the matter has beer further considerec by tho House of Lords and furthor guidance has been received I prepese te direct myself in acccréance with that statement of primciple. In the present case what ig charged is an effénce. True it is nct a criminal offences: ib a6 2 matrimcnial cfferce. It is fer the husbance te Satisfy the ccurt that the cffence has bean ccmmitted. Whatever the popular view May be it remains true in the eyes cf the lew the commissicn of adultery is a sericus matrimcnial cfferce, It follows in my view that a high stardaré cf precef is récuireé in order te satisfy the ccurt that the cffence h-s been committed. * In the same court @dmune Davies, L. J. alsc applied the “prepender— ance cf prchability"™ test as the standard cf preef with reference tC an adultery charge. He said, ccnsidering Blyth's case: "Be that as it may, Blyth's case ¢ealt sclely with a matter ef condéonation, and in relaticn tc that it cecisively anc authcritatively laid dcwn that the petiticner neec shew, only on a balance cf probability, that he did not connive cr ccndcne, as the case may be. Lore Penninz's cbservaticns in relaticn tc the standarea cf preef apprcpriate tc the /ost blishment A —fhe “establishment cof a matrimcnial offence, cn the cther hand, CLIipET . As to this op. 96-97 has must ex recessitatis be regarded as Prefesser Cress in CROSS Ch EVIDENCE at cbserved that: "All that car be said with certainty on the present low is that it is tnly necessary tc negative the bars te matrimcnial relief cn a prapenderance cf probability. Sc far as the grcunds fer such relief are ccncerned there is, it is submitted, every reason why the views of Lord ITenring in Blyth v. Blyth shculd be adcpted- and, at the level cf the Hcuse cf Lords, nc authcrity precludes their aception. Whether lower ccurts will treat Blyth v. Blyth as an authcrity for the prepositicn that preof on a prependerance of prcbability is all thot is required threughcut every matrimcnial cause remains to be seen.' " Lore Justice Edmund Davies thereupcn applied the test cf the prepcenderance cf prcbabiliti2s as the standard cf proof in the adultery chargec. i have given ccnsicerable thought tc this matter and 1 find that I am satisfied that the totality of the evidence of the petiticner, while in general uncorrcboratec, is sufficient to prove the centents cf her pétition. On the preponderance of probabilities, I so hele, accepting the evidence cf the petitioner anc viewing it cver the whcle ccurse cf the respencent's ecnduct ever the years, including the petiticner's account cf his incrensing sexual neglect cf her, culminating in his ccnfessicr of acultery. 1 grant 2 cecrée rilsi.of diverce. I grant custody ef the chilcren as prayed and ¢ nédemn the resperdent in costs. The questicn cf maintenance is acjcurned inte chambers tc a Cate to be fixed. Preneunced in cpen ccurt this 26th cay cf July 1980 at Blantyre.