[1940] EACA 48

# DIVORCE JURISDICTION

### Before LUCIE-SMITH, J.

### WINIFRED SARAH MEDCALFE, Petitioner

ν.

# RALPH TOWBERTON MEDCALFE, Respondent

## Divorce Cause No. 3 of 1941

Divorce Jurisdiction-Desertion without cause-Questions for consideration by Court-Factum of separation and animus deserendi-Section 7 (b) Matrimonial Causes Ordinance, 1939.

**Held** $(9-5-41)$ .—(1) That three questions have to be considered by the Court:—

(1) Whether domicile has been proved.

- (2) Has there been culpable delay by the petitioner in presenting a divorce petition? - (3) Whether desertion without cause for a period of at least three years immediately preceding the presentation of the petition has been proved?

(2) That desertion is established by proof of the factum of separation and the animus deserendi without cause for a period of at least three years immediately preceding the presentation of the petition.

(3) That it not incumbent upon a spouse who is relying upon desertion to show that he or she was at all times during the statutory period ready and willing to receive the deserting spouse back again.

### Figgis, K. C., for Petitioner.

# No appearance for Respondent.

JUDGMENT.—This is a petition by the wife for the dissolution of her marriage to the respondent. The petition is presented under the Matrimonial Causes Ordinance, 1939, which came into force on the 1st January, 1941. The petition was presented on 8-2-41 and prays for a dissolution on two grounds laid down in section 7 (b) and (c) of the Ordinance. Having consulted the authorities I may say at once that I am not satisfied that the evidence given before this Court establishes legal cruelty. The only evidence is that of the petitioner herself as to which no corroboration was produced, though it would seem that such corroboration could have been supplied by Dr. McCaldin. It is also to be noted that although para. 19 of the petition alleges "That the conduct of the respondent has been such as to render it dangerous for your petitioner to live with him" the petitioner did in fact travel to England with him and to a certain extent lived with him while in England.

Section 7 (b) of the Ordinance reads as follows: $-$

"A petition for divorce may be presented to the Court either by the husband or the wife on the ground that the respondent has deserted the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition".

The desertion in this case is alleged to have commenced in November, 1936.

In the language of my learned brother Bartley in Divorce Cause No. 6 of 1941, O'Reilly v. O'Reilly, three questions have to be considered by $me:$ —

- (1) Whether domicile has been proved. - (2) Has there been culpable delay by the petitioner in presenting a divorce petition?

(3) Whether desertion without cause for a period of at least three years immediately preceding the presentation of the petition has been proved?

With regard to domicile from the evidence of the respondent and in view of the decision of the Court of Appeal for Eastern Africa in King v. King (Civil Appeal No. 17 of 1939) I am satisfied that it has been proved.

With regard to delay the petitioner states in her evidence that she was waiting for the new Matrimonial Causes Ordinance to come into force and I accept that explanation as being reasonable.

With regard to desertion the petitioner and respondent, after their marriage at Nairobi on the 12th October, 1935, lived together in the Colony until they sailed for England on 3rd July, 1936. There is evidence that before that date the respondent's behaviour was peculiar and that as a result of medical advice it was decided to go to England and seek the advice of a neurologist. On arrival in England they lived together in a flat in London for about a week and then moved to Cobham. There the petitioner was taken ill and the respondent left her to visit his mother at Lymington, only visiting her once for about half an hour during the fortnight she was laid up. From that time the respondent appears to have been most erratic and uncertain in his movements, leaving his wife in ignorance of his whereabouts for comparatively long periods. They stayed together at Ambleside for three days and then started off for Blundell Sands, the respondent following his wife in his own car. Before arriving at their destination the respondent disappeared and the petitioner next heard from him from London asking her to meet him there. At that meeting the respondent told the petitioner that he had definitely made up his mind to leave her and nothing could persuade him not to; the petitioner tried to dissuade him, but with no results—that was in October, 1936.

The petitioner apparently heard nothing more of her husband until 6th November, 1936, when she received a wire from him, as a result of which she met him in London and he informed her that he was sailing for Kenya the next day and wished to say "Goodbye". He further said he had not changed his mind about leaving her.

The petitioner remained in England until her return to Kenya in January, 1937. The petitioner says that since the respondent left her he has given her no maintenance or support whatever. It is to be noted that the petitioner says that from the time the respondent first told her of his intention to leave her up to the 6th November, 1936, she did all in her power to turn him from his purpose.

In the 12th Edition of Latey on Divorce the learned authors say that there is no judicial definition of desertion that can be applied to meet the facts of every case, but it is in essence the abandonment of one spouse by the other with the intention of forsaking him or her without just cause. The party charged with desertion must have withdrawn from cohabitation contrary to the consent of the petitioner.

In Sickert v. Sickert (1899), p. 278 at p. 282, Gorell Barnes, J. said: "In order to constitute desertion there must be a cessation of cohabitation and an intention on the part of the accused party to desert the other. In most cases of desertion the guilty party actually leaves the other, but it is not always or necessarily the guilty party who leaves the matrimonial home. In my opinion the party who intends bringing the cohabitation to an end, and whose conduct in reality causes its termination commits the act of desertion". This dictum was quoted with approval by Langton, J. in Spence v. Spence (1939), 1 A. E. R. 52 at p. 57.

In Pardy v. Pardy (1939), 3 A. E. R. 779 at p. 783, Sir Wilfred Green, M. R., said: "It appears to me that the first question which the Court ought to put to itself is, 'Was the separation which de facto existed during the relevant period ..... or was it due to a supervening animus deserendi on the part of the respondent?' The existence of such an *animus* is a matter of inference from the facts of the case".

I find in this case both the factum of separation and the animus deserendi proved.

As regards the point raised by the Court as to whether petitioner was prepared to return to the respondent, it was held by Henn Collins, J. in Sifton v. Sifton (1939), 1 A. E. R. 109, that it is not incumbent upon a spouse who is relying upon desertion to show that he or she was at all times during the statutory period ready and willing to receive the deserting spouse back again. There is presumption in favour of a deserted spouse.

In view of all that I have said above I find that the respondent deserted and continued to desert the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition herein.

I accordingly grant a decree nisi with costs as prayed.