B e f o r e :
LORD JUSTICE NEILL
and MR JUSTICE CAZALET
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PATRICIA BIRCH
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NEVILLE BIRCH
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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, WC2A 3RU.)
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MRS H.A. STANSBY, instructed by Messrs James & Sarch (London Agents for Messrs Fearnley & Co., Macclesfield, Cheshire), appeared for the Appellant (Petitioner).
THE RESPONDENT (Respondent) appeared In Person.
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MR JUSTICE CAZALET: In this appeal the appellant is Patricia Birch. The respondent to the appeal is her husband Neville Birch. The appellant appears by counsel. The respondent is not represented, but appears before us in person. He was represented at the hearing below. Throughout my judgment I shall refer to the appellant and the respondent as "wife" and "husband" respectively.
The wife appeals from an order made on 26th June 1990 by His Honour Judge Crowther sitting in the Macclesfield County Court dismissing her divorce petition filed on 12th October 1988 in proceedings between herself and her husband.
The circumstances giving rise to this appeal may be summarised as follows. The parties were married on 25th February 1961. There are four children of the family. All are now grown up with the youngest being in the early 20's. During the later years of their married life the parties lived together at an address in Macclesfield. The marriage broke down and the wife finally left on 9th September 1988, moving out of what had been the matrimonial home. The parties by then had lived together for more than 27 years.
In order to prove the irretrievable breakdown of the marriage the wife in her petition relied upon the grounds set out in section 2(1)(b) of the Matrimonial Causes Act 1973 to the effect that her husband had behaved in such a way that she could not reasonably have been expected to live with him. In his answer dated 19th December 1988 the husband denied that he had so behaved. The petitioner gave detailed particulars of the allegation which she had made in her original petition by an
Amended Particulars of Respondent's Behaviour dated 18th May 1989, and consequent on that the respondent husband amended his answer and that amended answer was dated 15th September 1989.
The main complaint which the wife made against the husband was that he was very dogmatic and dictatorial towards her. He is English. She comes from the Republic of Ireland. In paragraph (11)1 of her particulars she asserted that any item of news or documentary programme about the political situation in Ireland provoked her husband to make heartless and bigotted remarks to her about the Irish. He belittled her opinions, she asserted, and belittled them vehemently. According to her she was unable to speak freely in his company, and as a result of that she was caused tension and anxiety by being forced to take care not to antagonise him. He admits that he was provoked by some of the more extreme incidents of violence in Northern Ireland, but he said that he did not belittle her opinions and she was not by reason of any conduct of his restrained from speaking freely.
A further allegation that she made was that he frequently insulted her, causing her embarrassment, and there were allegations that on one occasion he had ordered her to leave a public house, using foul language towards her. She further alleged that he drank to excess and that this had happened more frequently during the last two or three years of their married life and there had been some four instances of physical violence between them.
The husband in substance denied the violence. He said that so far as there had been any such occasion - and he referred to one in particular - it was his wife who had initially subjected him to violence and in seeking to fend her off and restrain her he accepted that there had been some violence from him. He further said that during the last two or three years he had cut down on his drinking; he maintained that the last instance of violence had been four years previously.
Each party gave evidence before the learned judge. The notes of evidence are before us. No supporting evidence was called by either the husband or the wife, except that the husband relied on a card written to him at Christmas 1988 after the separation when the wife's mother and father wrote indicating that they were shattered over the separation, including words as follows: "You will always be our son and you will be always welcome (whenever). Dearest Love", with two crosses for kisses and signed by both of them.
In his reasoned judgment of 26th June 1990 His Honour Judge Crowther dismissed the wife's petition. I go now to certain passages of significance in the judgment he then gave. At page 30 in the bundle before us he indicated at the outset that he had no difficulty in finding the marriage had irretrievably broken down, and he recorded that the petitioner left in September 1988. He went on to say:
"Until then she had put her own interests on one side to promote the interests of her children. She left when the time was ripe for the family.
I am satisfied that it was a genuine leaving prompted or caused by a loss of affection. The Respondent misleads himself if he thinks that she will return to him, although I am satisfied that he does not think the marriage has broken down, that he could accept her and revert to their previous lifestyle."
Then the judge went on to say:
"The difficulty I have is with regard to the second element, namely the allegation that Mr. Birch's behaviour has been such that Mrs. Birch cannot be expected to tolerate it.
Having heard the evidence of Mr. Birch, he would not be easy to live with, I think he frankly accepts that the strength of his views does not brook answer; he is the last person to avoid quarrels except by leaving."
At the top of page 31 the learned judge went on:
"I am satisfied that Mrs. Birch is made of different stuff; she is more passive, although not without spirit. She has resented Mr. Birch's views for many years.
Then the judge referred to an incident at Christmas 1987 when there had been a difference between them when the husband had caused a Mr Banks, who had come to stay, to leave the house. The judge discounted somewhat the wife's account of the incidents of violence; in particular with regard to one occasion, the most serious instance, he accepted that there was bruising to the wife as a result of over-vigorous restraint when the husband had been provoked. He went on to say at the bottom of page 31 (and this is an important passage in my view in his judgment):
"This case is about attitude. I must assess whether the dogmatism and national and male chauvinism which Mr. Birch has, particularly when in drink, although not concealed before me in Court today, are so deep-dyed and part of his everyday life as to make the expectation that a person could be expected to tolerate it unreasonable. If so the decision must be firmly in favour of Mrs. Birch.
What begins as an irritation if repeated and repeated becomes intolerable.
Mrs. Birch says it was part of her everyday life, being a constant butt, not playing the part of a partner in life but that of a servant expected to play a secondary and subservient role in social and family matters."
Then the judge went on to say that he found Mr Birch's evidence preferable to the wife's, saying there were occasions when she played a subservient role and that this was a feature of life - occasional but exaggerated. The judge said that he was not satisfied that Mrs Birch's generalisations gave an accurate picture. At the top of page 33 on the last page of the judgment the judge says:
"I regret what I have to find, namely that the incidents of which Mrs. Birch complains were relatively rare; she has spread them into a general situation."
He then says:
"Insofar as I prefer Mr. Birch's evidence, I do not suggest that Mrs. Birch is misleading me. She has probably forgotten the times that were tolerable. I am satisfied that hers is not a true picture. I cannot find that Mr. Birch's behaviour was such that it would be unreasonable to expect her to tolerate it."
Consequent on that the learned judge then dismissed the wife's petition for the reasons set out in his judgment to which I have made some reference.
I turn now to the law. The wording of section 1(2)(b) of the Matrimonial Causes Act 1973 in providing that a petitioner must prove that "the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent" prima facie suggests an objective test. Nevertheless it is well established by a line of authorities, starting with Ash v. Ash [1972] Fam 135, that the court will have regard to this petitioner and this respondent in assessing what is reasonable. I do not need to concern myself with the facts in that particular case, but in giving judgment at page 140C Mr Justice Bagnall said this:
"In order, therefore, to answer the question whether the petitioner can or cannot reasonably be expected to live with the respondent, in my judgment I have to consider not only the behaviour the respondent has alleged and established in evidence, but the character, personality, disposition and behaviour of the petitioner. The general question may be expanded thus: can this petitioner, with his or her character and personality, with his or her faults and other attributes, good and bad, having regard to his or her behaviour during the marriage, reasonably be expected to live with this respondent? It follows that if a respondent is seeking to resist a petition on the first ground upon which Mr. Ash relies, he must in his answer plead and his evidence establish the characteristics, faults, attributes, personality and behaviour on the part of the petitioner upon which he relies."
Then the learned judge went on to give certain examples of that, saying:
"It seems to me that a violent petitioner can reasonably be expected to live with a violent respondent. A petitioner who is addicted to drink can reasonably be expected to live with a respondent who is similarly addicted ..."
He goes on to summarise that by saying:
"If each is equally bad, at any rate in similar respects, each can reasonably be expected to live with the other."
A further decision of the Court of Appeal, O'Neill v. O'Neill [1975] 1 WLR 1118, again considers the same aspect in regard to the court's approach to section 1(2)(b) of the 1973 Act. Again I need not trouble myself with the facts in that particular case. In giving judgment in the Court of Appeal Lord Justice Roskill (as he then was) said this (and he was dealing with the appropriate approach of the court to behaviour of a petitioner):
"I would respectfully adopt as correct what Dunn J. said in Livinqstone-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 then is the question which on the authorities the judge in this case should have asked himself, and as is set out in Rayden 15th Edition Volume 1 at page 255 "allowance will be made for the sensitive as well as for the thick-skinned; ... conduct must be judged [by the capacity of the complaining partner to endure his or her spouse's conduct] ... the court would consider to what extent the [defending party] knew or ought reasonably to have known [the capacity of the other party to endure the conduct in question]".
On behalf of the wife Mrs Stansby has urged upon us that the judge here indicated in his judgment that he had adopted the wrong test - what might be described in short form as the "objective test". She points to the passage to which I have referred which appears at page 31 at the bottom of the judge's judgment where the judge says:
"I must assess whether the dogmatism and national and male chauvinism which Mr. Birch has, particularly when in drink, although not concealed before me in Court today, are so deep-dyed and part of his everyday life as to make the expectation that a person could be expected to tolerate it unreasonable."
He then went on to say:
"If so the decision must be firmly in favour of Mrs. Birch."
What is submitted to us on behalf of the wife is that the learned judge did not properly direct himself as to the appropriate subjective test. The way in which the judge has framed that particular matter in his judgment clearly indicates that he was adopting the objective test. Furthermore, in the middle of page 31 when the learned judge was dealing with an occasion at Christmas 1987, the judge refers to an incident when the wife was concerned about a particular matter and the judge says, "When Mr. Birch overruled her it is understandable; I cannot find that it was unreasonable." Once again Mrs Stansby prayed that in aid in submitting that that passage further indicates that the learned judge was applying an objective rather than a subjective test in assessing the conduct of the husband.
The husband has urged upon us that, whilst he is an outspoken man and has voiced his opinions from time to time, in the round his marriage was a happy one, and that one of the sad aspects of his case is that there is a separation and that he is anxious that his wife should return to him. He has submitted to us that the effect of the judge's findings in regard to a certain particular incident (the incident at Christmas 1987) was to find that he was justified in putting Mr Banks out of the house because he had done or said something to which the husband took objection. He says as to the instances of violence that he did not consider that they played any substantial part; indeed the last instance was some years ago. Further he said that so far as the wife's parents were concerned he got on well with them. There were some three instances when he put them out of the house - once being with his wife's consent, the other two times being when they had fallen out with him over the political situation in Ireland. But he maintained that viewed over a period of 27 years and the more recent good relationship between himself and the parents (and he relies on the card to which I have already referred), those were not matters of substance.
I think, having regard to the findings that the learned judge made, the essential issue in this case - indeed this is how Mrs Stansby puts it - relates to the attitude of the husband. In regard to that the learned judge did make certain specific findings of fact. He made a finding that the husband has dogmatic and national male chauvinistic characteristics, these being unconcealed in court and becoming more marked in drink. He made a finding that the husband would not be easy to live with, and his strength of views were such that they would not brook argument. He made a further finding that the wife had resented the husband's views for many years, and that her understanding of the marriage was that she had been a constant butt, playing the role of a servant. So indeed the husband does not dispute that he is someone who speaks his mind and has spoken his mind over the years of his marriage.
If one then looks to the findings of fact that the judge made in regard to the wife he found that she was made of different stuff to the husband, being more passive, that she had resented his views for many years, and that she had left when the time was ripe for the family, having put her own interests aside until then. He further found there was no prospect of a reconciliation and said that she had seen fit to leave the home, no doubt having been one of the anchors within the family, when the last of the children had moved out of the home.
It seems to me that it was those findings essentially which were the matters with which the judge should have been fully and properly concerned when considering whether in fact the wife had proved the allegation made in her petition.
Given the finding that the judge made, I go back to the question to which I have referred and which the learned judge in Livingtone-Stallard asked himself. It is this:
"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?"
I have indicated that the wife came from Southern Ireland. I have indicated that the judge clearly found she was more sensitive; indeed the husband at one stage in his evidence said she was over-sensitive. She was clearly on the judge's finding someone who was more sensitive than the husband and had resented his views for many years, in particular his general dogmatic and nationalistic approach. It must follow from that that the husband must have been aware of that. He certainly ought reasonably to have been aware of that; and that is one of the appropriate tests in seeking to establish whether he has behaved in such a way that the wife cannot reasonably be expected to live with him.
I consider that the conduct that the learned judge found in the husband when viewed against the particular susceptibilities and characteristics of the wife in this case would have, had he considered the appropriate subjective test, driven him to the conclusion that there was only one answer - that this husband had behaved in such a way that the petitioner could not reasonably be expected to live with him. In making that finding I do so with all respect to the learned judge, who clearly gave anxious consideration to the evidence which had been put before him.
In those circumstances I consider that the facts as found by the judge, if he had applied the appropriate test, would have driven him to have found that the wife had proved her case under section 1(2)(b), and in those circumstances I consider that the judge should properly therefore have granted a decree nisi to the wife on the grounds of her petition as filed.
For those reasons, I consider that this appeal should be allowed; upon the facts as found by the judge and for the reasons I have already given this court is empowered to and does pronounce a decree nisi of divorce in her favour against the husband on the grounds of the petition which is before us.
LORD JUSTICE NEILL: I agree. It is provided in section 1(2)(b) of
the Matrimonial Causes Act 1973 that:
"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".
It has been emphasised in the authorities to which my Lord has drawn attention that it is necessary to have regard to the particular petitioner who has sought relief. The matter is put clearly by Mr Justice Dunn in Livinqstone-Stallard v. Livingstone-Stallard [1974] Fam. 47 at 54, where he said this:
"... 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 approach, as I see it, is consistent with what Lord Reid said in Gollins v. Gollins [1964] AC 644, at page 660:
"In matrimonial cases we are not concerned with the reasonable man as we are in cases of negligence. We are dealing with this man and this woman".
One turns, therefore, to the judgment of the learned judge. My Lord has already cited the passages in the judgment which have led him to conclude that the judge, in considering the circumstances of this case, applied an objective test rather than a subjective test. I agree with Mr Justice Cazalet that that does seem to be the approach which the judge followed.
Accordingly, it is necessary to see whether, on the findings which the judge made, it is possible for this court to come to the conclusion that the case for the petitioner has been made out. It is right to notice that in a number of passages in the judgment the judge preferred the evidence of Mr Birch to that of Mrs Birch and that as regards specific incidents he was not satisfied that Mrs Birch's account was accurate. Indeed I, for my part, would set aside all the evidence relating to the specific incidents and approach the case on the basis of looking to see what was the evidence about the husband's attitude to the wife.
It seems to me that this man, really on his own admission, is a very strong-minded outspoken personality. The wife, as the husband described her in his own evidence before the judge, is a sensitive lady. It seems to me that if one applies the test set out in Livingstone-Stallard to the facts of this case as found by the judge that the case for the wife is made out and that she does satisfy the statutory test. She could not reasonably be expected to live with the husband, taking into account the whole of the circumstances and the characters and personalities of the parties.
Accordingly, for these reasons I too would allow the appeal and pronounce a decree nisi of divorce.
Order: Appeal allowed; no order for costs; legal aid taxation of wife's costs.
