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Livingstone-Stallard v Livingstone-Stallard
18, 19 MARCH 1974
Divorce – Behaviour of respondent – Behaviour such that petitioner cannot reasonably be expected to live with respondent – Reasonableness – Test to be applied – Conduct amounting to constructive desertion – Gravity of conduct such as to justify dissolution – Relevance as criteria – Issue to be determined as question of fact taking into account characters and personalities of parties – Matrimonial Causes Act 1973, s 1(2)(b).
In construing s 1(2)(b)a of the Matrimonial Causes Act 1973 it is not appropriate to import notions of constructive desertion or to analyse the degree of gravity of conduct which would be sufficient to justify dissolution of the marriage. The proper
a Section 1(2), so far as material, provides: 'The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say … (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent … '
 2 All ER 766 at 767
approach is to determine as a question of fact whether the respondent has behaved in such a way that the particular petitioner before the court cannot reasonably be expected to live with him, taking into account the whole of the circumstances including the characters and personalities of the parties (see p 770 g and h and p 771 b and c, post).
Dictum of Ormrod J in Pheasant v Pheasant  1 All ER at 591 doubted.
For proof that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent, see Supplement to 12 Halsbury's Laws (3rd Edn) para 437A, 3, and for cases on the subject, see 27(1) Digest (Reissue) 358, 359, 2630–2633.
Cases referred to in judgment
Ash v Ash  1 All ER 582,  Fam 135,  2 WLR 347, 27(1) Digest (Reissue) 358, 2630.
Katz v Katz  3 All ER 219,  1 WLR 955.
Pheasant v Pheasant  1 All ER 587,  Fam 202,  2 WLR 353, 27(1) Digest (Reissue) 358, 2631.
By a petition dated 29 January 1973 the wife, Brenda Vera Livingstone-Stallard, sought the dissolution of her marriage alleging that the husband, Herbert ***** *****vingstone-Stallard, had behaved in such a way that she could not reasonably be expected to live with him. The husband by his answer denied that the marriage had broken down or that he had behaved in the manner alleged in the petition. The facts are set out in the judgment.
Michael Beckman for the wife.
E V Paynter Reece for the husband.
19 March 1974. The following judgment was delivered.
In this suit the wife seeks a dissolution of her marriage on the ground of irretrievable breakdown unde s 1(2)(b) of the Matrimonial Causes Act 1973. The husband by his answer denies that the marriage has broken down irretrievably and he denies that he has behaved in the manner alleged by the wife in her petition.
The parties were married on 5 December 1969, the husband being then 56 and the wife 24 years of age. He had been married before in 1942 to a lady some 15 years his junior. There was one son of that marriage who was born in 1944 and the marriage ended in divorce in the middle of the 1960s, the first wife having obtained a decree nisi in a defended suit on the ground of cruelty.
Shortly after the war the husband started an insurance broking business at Westcliff-on-Sea, and his son, in due course, followed him into the business. He has quite recently retired from the business and is living in the former matrimonial home at 8 Branscombe Gardens, Thorpe Bay.
The parties met some years before they were married. The wife's father is a clerk employed by the Customs and Excise. She herself was employed by that department before her marriage, although for a short time she was employed part-time in the husband's office. They became engaged in about 1968. The engagement was a stormy one and was broken off twice. The husband, not surprisingly, had doubts about the difference in age. The wife frankly told me that she herself had doubts about his temper and dominant character, but in the end she came to the conclusion that once they were married, things would improve and their marriage could be a success; in due course they were married. The marriage was neither easy nor long-lived, because within two months of the marriage the
 2 All ER 766 at 768
wife had left and gone back to her parents. The parties remained apart until November 1970 when the husband joined the wife at a flat at Cotswell Road, Westcliff-on-Sea, which she had bought jointly with her mother from the proceeds of a gift which had been made her by a cousin.
They lived together there for some two years during which the one child of the family, Jason, was conceived and born. In August 1972 there was bought in their joint names a house at 8 Branscombe Gardens, Thorpe Bay, which was conveyed to them jointly as tenants in common, on terms that on any sale of the house the wife should receive a payment of £5,000 and the balance should be split equally between them. That is set out in the conveyance; the reason for it I was told is that the wife provided £5,000 for the purchase, the balance being found from a bank loan and moneys put up by the husband. It is right to say that the husband disputes the validity of that division of the property as set out in the deed, saying that he never intended the deed to be drawn up in that way.
The wife moved from the flat to 8 Branscombe Gardens in October 1972, and a month later she left, taking the child back to her parents. In January 1973 she filed her petition seeking the dissolution of marriage. As the house partly belonged to her, she was naturally reluctant to leave it. She moved back with the child in June 1973, though living quite separate from her husband. This arrangement did not work, so the child went back to the wife's parents, and since then the wife has been living partly at the former matrimonial home—at any rate sleeping the night there—and partly at her parents' house.
Her case is that her husband was, as she put it, a critical and non-loving man who treated her from the very first, not as a wife but as a rather stupid child. She said that even on their honeymoon, when they spent a week at the Cumberland Hotel, her husband was abusive to her. It is quite plain from the evidence of the husband that even at that stage there were difficulties between them. The wife had referred to her holiday with a female cousin the previous summer. The husband objected to this and I accept the wife's evidence that the result was to make him rude, boorish and critical of her during the honeymoon.
They first went to live at 69 Cavendish Gardens, Westcliff-on-Sea. The wife complained that from the time that they started married life together he criticised her behaviour, her friends, her way of life, her cooking and he even criticised her dancing. 'They were all petty little things' she said 'but my life was not my own. I dreaded hearing his latch-key in the door'. The husband agreed that he did criticise her, but he said that he was quite justified in so doing, because she was what he called a very constructive person. I had some difficulty in understanding what he meant by that or how it could be said to justify his criticism. But it appeared at the end, after he had been cross-examined, that he formed the opinion that she was worthy of criticism, because she was a person who potentially did things well and by his criticism would be able to do things even better.
An indication of his attitude towards his wife was, that in the witness box, he referred to her variously as 'the girl', 'the lady' and '***** *****' which was her maiden name—but not as 'my wife' or 'Brenda'. I accept her complaint that right from the very start he did criticise her over these petty things in the way she described them.
On one occasion, she said, in the course of an argument, he spat at her. He denies this and I do not accept his denial. I found his evidence evasive on this issue. She also told me that when he was angry he called her names and she described them. In the witness box he spoke in a quiet carefully modulated voice; I do not believe that it was his real voice, particularly when he was angry. This was a man who was capable of controlled anger and I accept her evidence that he called her names when he was angry. The only name he would admit to having called her was a bastard. No doubt he called her that and many other names as well.
She also told me that on one occasion he tried to kick her out of bed. His explanation was that he was a restless sleeper and that he jumped and jerked about in his
 2 All ER 766 at 769
sleep. He denied that he ever kicked his wife intentionally. I do not accept that explanation and I do not believe that the wife made that up. I am satisfied that on that occasion he did try to knock her out of bed, as she said, because he was bad-tempered.
Another incident, small in itself, related to the washing of the wife's underclothes. She said that he complained because she left her washing soaking in the sink overnight, and said that it was indicative of the way she was brought up. This particularly annoyed her because the husband did exactly the same thing himself. He denied either washing his underclothes and leaving them in the sink or of criticising her about it. I am satisfied that the evidence of the wife had a ring of truth about it. I thought that the husband was a man who was very set in his ways and had a good conceit of himself. He was inclined to look down on his wife, her background and upbringing. I accept that on that occasion he criticised her in that way and added the twist that it was indicative of how she had been brought up.
The wife also complained about another incident which was, perhaps, the most illuminating incident so far as the husband's character was concerned. They had had some photographs taken at their wedding, and not very long afterwards the photographer came round with the wedding album. The husband was out and the wife, exercising what one would imagine was normal courtesy and hospitality, offered the photographer a glass of sherry which he accepted and she had a glass of sherry too to keep him company. When the husband came home he went to his cocktail cabinet, took out the sherry bottle and said: 'You have drunk half a bottle of sherry. Don't you ever go to my cocktail cabinet again'. He asked her who she had been drinking with, and she told him what had happened. He forbade her to 'give refreshment to tradespeople again'. He was naturally cross-examined about his attitude and it appeared to be that if his wife took a glass of sherry with a tradesman—and he apparently classed the photographer as a tradesman—then the glass of sherry might, as he put it, impair her faculties, so that the tradesman might make some kind of indecent approach to her, and that was the justification of his conduct on that occasion. To my mind it is typical of the man.
Not very long after that the wife left. She left as the result of one of the few scenes of violence which took place during the marriage. I have no doubt that the wife was right when she said the husband came back in bad temper, and although there is a dispute between the two of them as to the details of what happened, there is no doubt whatever that the husband took hold of the wife, bundled her out of the house on a cold February evening and locked the door so that she could not get back in again. She was exceedingly upset, and being a young woman of spirit she broke a pane of glass to try and get in again. The husband, in order to prevent her getting in, got a bowl of water and threw it through the broken glass. She said it soaked her and I accept that it did. It may very well be, as the husband says, that she also threw some water through the window, but he was, after all, in possession of the house and she was being excluded from it. She went across to her mother's, which was very close, and stayed there. A few days later she went to her doctor, who found that she had bruise marks on her arms and legs and that her injuries were consistent with her having been violently assaulted. He said that she was in a very nervous state for about six weeks and required sedation.
She bought the flat,***** and moved there. I accept that the husband was continually attempting to annoy her by going to the flat, trying to get in, following her in his car and things of that kind. But in the late summer of 1970 she agreed to a reconciliation and the husband moved into the flat. One of the criticisms which is made by counsel for the husband of the wife's case is that there is no specific incident either pleaded or referred to in evidence during the two years that they lived there together. The husband's case was that those two years were perfectly happy. The wife agreed that they were happy at times, but she said:
'He did not really want me, he only wanted to annoy me. He was always packing his bags and threatening to go away, he was always nasty, he was unkind,
 2 All ER 766 at 770
he belittled me in front of people and refused to meet my friends, he belittled my opinions.'
He said to her on more than one occasion: 'In order for them to be happy, wives have to be subservient to their husbands'.
I accept the wife's evidence as being completely consistent with the husband's character and attitude as I saw it in the witness box, I accept the submission of counsel for the wife that in a case which depends on a course of conduct and on the character of the other spouse rather than on a series of dramatic incidents, perhaps of violence, the effect of the conduct may be nonetheless serious in the long run even though it is not practical to specify particular incidents as having impinged on the memory of the wife as incidents in their own right.
In October 1972 the wife moved with Jason, who, by that time, was nearly a year old, to join the husband at 8 Branscombe Gardens. She said they did not get on there; he vented his anger with other people on her, blaming her for the mistakes which the decorators had made, that his temper was very easily roused, that he slammed the doors, pushed her about and adopted a generally menacing attitude towards her. I accept that evidence of hers.
The marriage ended for practical purposes on 13 November 1972. On that day the husband was late for his evening meal. According to the wife he was very offhand when he arrived. He sat down and simply picked up a newspaper and started to read it, and she, in exasperation, took it away from him and he said 'I will kill you' and that developed into an argument. She said he was in a terrible rage by the end of the evening. She could not take any more and she took the child to her parents and followed herself in January when her petition was filed.
The husband said at the end of his evidence that he was anxious for a reconciliation and although his wife was constructive, honest and reliable, she had some of his own failings; unhindered, they could make a success of their marriage as he loved her very dearly. If by the word 'unhindered' the husband intended to convey the impression that the wife's mother had a hand in the breakdown of this marriage, I reject that suggestion. I saw the wife's mother in the witness box. She impressed me as being an objective and sensible person. There was put to her in cross-examination a letter which she wrote to her future son-in-law on 18 March 1969, which showed that even at that time there had been some quarrel between the parties. The wife's mother was, in effect, taking the husband's side and apologising for her daughter's behaviour, saying that she had an arbitrary streak in her.
I am quite satisfied that this marriage has broken down irretrievably. The wife told me that in no circumstances would she continue to live with her husband, partly because he is so irresponsible with Jason and takes so little interest in him. I cannot, of course, dissolve this marriage unless I am satisfied that the husband has behaved in such a way that the wife cannot reasonably be expected to live with him. That question is, to my mind, a question of fact, and one approach to it is to assume the case was being tried by a judge and jury and first to consider what the proper direction to the jury would be, and then to put oneself in the position of a properly-directed jury in deciding the question of fact.
Counsel for the husband has referred me to the cases—all of which have been so far decided at first instance—of Ash v Ash, Pheasant v Pheasant and Katz v Katz, and has submitted that incompatibility of temperament is not enough to entitle a petitioner to relief. The behaviour must be of sufficient gravity so that the court can say that it would, under the old law, have granted a decree of divorce on the ground of constructive desertion. He also submitted that the best approach is to
 2 All ER 766 at 771
apply the test which was applied in the constructive desertion cases, bearing in mind that the parties are married and that the conduct must be sufficiently grave to justify a dissolution of the marriage; weighing the gravity of the conduct against the marriage bond or, as he put it, against the desirability of maintaining the sanctity of marriage. I have, in the past, followed the reasoning of Ormrod J in Pheasant v Pheasant ( 1 All ER at 591,  Fam at 208), but, on reflection and with respect to that learned judge, I am not sure how helpful it is to import notions of constructive desertion into the construction of this statute. 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 s 1(2)(b) of the 1973 Act. The Act, as Lord Denning MR has emphasised in another context, is a reforming statute and the language of the subsection is very simple and quite easy for a layman to understand. 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? It is on that basis that I approach the evidence in this case.
The wife was young enough to be the husband's daughter and plainly considerable adjustment was required on both sides. Counsel for the husband submitted that she had known him a long time and that she knew exactly the kind of man that she was marrying and the complaints which she made are trivial. She cannot bring herself within the subsection, simply because the character of her husband does not suit her. He further submitted that the reality of this case was that this young woman had simply got fed up and walked out, and walked out pretty soon too. I accept that she was a strong-minded young woman but I am satisfied that she was anxious for the marriage to last. She wished it to continue and wished to have children, bring them up, have her own home and did her best so far as she was able to adjust to her husband's character. He was said, by his counsel, to be meticulous. I agree with counsel for the wife that more suitable adjectives would be self-opinionated, didactic and critical and I accept that the husband's approach was to educate her to conform entirely to his standards.
In my judgment, he patronised her continually and submitted her, as I have found, to continual petty criticisms. His general attitude is well exemplified by the incident of the sherry and the photographer, whom he called 'the tradesman'. I accept that many of the incidents were, or might appear to be, trivial in themselves and that there is a paucity of specific incidents between September 1970 and November 1972. But taking the facts as I have found them in the round in relation to the husband's character, in my judgment they amount to a situation in which this young wife was subjected to a constant atmosphere of criticism, disapproval and boorish behaviour on the part of her husband. Applying the test which I have just formulated, I think that any right-thinking person would come to the conclusion that this man had behaved in such a way that this woman could not reasonably be expected to live with him. There will accordingly be a decree nisi under s 1(2)(b) of the Matrimonial Causes Act 1973.
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