[1938] EACA 177

#### DIVORCE JURISDICTION

### Before THACKER, J.

#### NORMAN GUNNING PARKER, Petitioner

## v.

# ZOE PARKER. Respondent

## and

## HUGH GASCOIGNE FOSTER, Co-respondent

## Cause No. 9 of 1939

Divorce jurisdiction—Petition for dissolution of marriage on the ground of adultery—Delay—Acquiescence—Want of sincerity— Lack of means.

Petitioner on 1st May, 1939, filed his petition for dissolution of marriage on the ground of the respondent's adultery with the corespondent.

Petitioner and respondent were married in Uganda on 1st April, 1925, and had one child, a daughter, born in 1926.

In 1929 the respondent left the petitioner and thereafter never returned to the petitioner. Since the year 1930 the respondent was living with the co-respondent as his wife and had three children by him of whom the eldest was born in 1931.

Petitioner alleged that his delay in taking divorce proceedings was due to the fact that he had not sufficient means to do so at an earlier date.

In 1929 the petitioner sold his farm in the Belgian Congo and followed the respondent to England where he got possession of his daughter by means of an abduction. Later he allowed the daughter to return to and live with the respondent.

With the proceeds of the sale of his farm the petitioner in 1929 bought an hotel at a cost of £6,000. He said he expended £3,600 on improvements and paid £2,000 premium on going into the hotel but lost money during the proprietorship and finally became destitute in 1930. In the same year he consulted a firm of solicitors in Plymouth with a view to taking divorce proceedings but he did not take the matter further as he said he had not the money necessary. After giving up the hotel he worked as a hawker whereby his average earnings were $£3$ to $£4$ a week. Thereafter he bought a lorry and later on three more lorries on the hire purchase system. The lorries cost £350 each and he had to pay £96 as a deposit, which he borrowed from a bank. His earnings during the period at which he had four lorries were £8 per week. He later sold the four lorries for £450 and came to Kenya in February, 1938, where he obtained employment at £20 a month and his keep.

Held (26-6-39).—That the petitioner had not given a full and satisfactory explanation of the delay. His omission to take proceedings earlier was<br>more consistent with a real acquiescence in or condonation of his wife's adultery than with a continuing sensibility of injury inflicted.

Petition dismissed.

English Authorities reviewed.

*Finch* for the petitioner.

JUDGMENT.—This is a very troublesome case. It is an undefended divorce petition by Norman Gunning Parker for the dissolution of his marriage with Zoe Parker on the grounds of her adultery with Hugh Gascoigne Foster. The difficulty is owing to the conduct of the petitioner himself.

The parties were married on April 1st, 1925, at Fort Portal, Uganda, and there has been one child, a daughter, of the marriage, now aged nearly thirteen, born 12th November, 1926. After the marriage the parties lived at Bunia in the Belgian Congo, and in 1929 the respondent went with her mother and her child to Kampala to visit a dentist and never afterwards returned to the petitioner. There appears to be a somewhat remarkable feature in the evidence here, no evidence why or in what circumstances the respondent found her way at once with her mother and daughter to the ship on which they went to England. The respondent's mother had lived with the parties from the time of the marriage up to the day when the wife left for Kampala. The wife was advised at Kampala to go to England for the sake of her health and apparently she and her mother departed for England at once. It is difficult to believe that that is all that had happened, or that the Court has been given the whole facts. One would have expected the wife to return to her husband and inform him of the advice she had received. The respondent went to England and on the boat met the co-respondent with whom it is stated she fell in love. They have lived together since 1930. As the result of enquiries, the petitioner thereupon sold his farm, and went to England. He obtained possession of his daughter as the result of an abduction in the west end of London, and about this time purchased an hotel in Devonshire at a cost of £6,000, the proceeds of sale of his farm. He has told me that he expended some $£3,600$ on improvements, paid £2,000 premium on going into the hotel, but lost money during his proprietorship of the hotel and finally became. destitute. This happened about the year 1930. In the same year he saw a firm of solicitors in Plymouth with a view to taking divorce proceedings but did not go on with these proceedings as he had not, he says, the money necessary. After giving up the hotel he seems to have worked as a hawker and his average earnings were between $£3-4$ a week. He has told me that his earnings varied considerably and that on one day he earned as much as £10. Giving that up he thereafter bought a lorry, and later on three more lorries on the hire purchase system. The lorries cost £350 each and the petitioner had to put down £96 as a deposit, which he borrowed from the bank. His earnings during the period when he had the four lorries were £8 per week. He later sold the four lorries for £450 and came to Kenya in February, 1938. It does not appear to have occurred to the petitioner to take proceedings under the Poor Persons' Rules in England, and he says that he was never advised by the Plymouth solicitors of the possibility of adopting this line of action.

His wife, the respondent, and Foster appear to have lived together since they joined each other on arrival in England and three children have been born of this union, the first one in February, 1931. I am told that the respondent and co-respondent have lived for some years together in the Colony and are regarded with respect by the local community, who are not aware that they are not legally husband and wife. I am told by the respondent's mother that they are living together happily. I am satisfied as to the alleged adultery, and I am satisfied that the petitioner's domicil is England

and that he is entitled to bring these proceedings under the Indian and Colonial Divorce Jurisdiction Act. 1926. The petitioner is at present a farm manager in the Colony.

The important question which I have to answer is whether there has been such a delay in bringing these proceedings on the part of the petitioner as to preclude me from granting the decree which he seeks. The law on this subject is set out at length in Browne and Latey on Divorce, 11th Edition, at p. 82, as follows: -

"The view taken by the Ecclesiastical Courts on delay was thus expressed by Lord Stowell... The Court will be indisposed to relieve a party who appears to have slumbered in sufficient comfort ... it will be inclined to infer either an insincerity in the complaint, or an acquiescence in the injury, whether real or supposed, or a condonation of it. It therefore demands a full and satisfactory explanation of this delay in order to take it out of the reach of such interpretations. (Mortimer v. Mortimer (1820), 2 Hag. Con. 310 at p. 313.)

After the institution of the Divorce Court, Sir Cresswell Cresswell said: 'Delay is not of itself a bar to the suit. But it is a most material matter, which unexplained, would lead the Court to conclusions fatal to the petitioner's relief' (Boulting $v$ . Boulting (1864) 3 S. and T. 329).

The motive for the proceedings may be considered where there has been considerable delay in presenting a petition (Pears v. Pears (1913 107 L. T. 505).

If there has been apparently unreasonable delay in taking proceedings, some sufficient reason for it must be given (Nicholson v. Nicholson (1873) L. R. 3 P. and D. 53); but the Court will not dismiss a petition where a sufficient explanation is given (*Wilson* v. Wilson (1872) L. R. 2 P. and D. 435).

Since the war a great increase in the volume of divorce suits has been accompanied by a correlative increase in the exercise of the Court's discretionary powers, and there is no reported case of a petition for dissolution being dismissed on the grounds of delay since the case of Rickard v. Rickard and Bond (1921) 37 L. T. R. 511 (C. A.)."

This however is not surprising since the institution of the Poor Persons' Rules in England which practically did away with poverty being an obstacle to divorce. I may mention that this was written in Browne and Latey before the case of Binney v. Binney and Hill, All. E. R. 1936, 2, p. 409.

"In that case (Rickard v. Rickard and Bond) there was a deliberate delay of twelve years in the presentation of a husband's petition which was dismissed. On appeal, Lord Sterndale, M. R., said that the word 'delay' in section 31 of the 1857 Act must be understood to be 'culpable delay, something in the nature of connivance or acquiescence' (the words used by the full Court in Tollemache v. Tollemache (1859) 1 S. and T. 557).

The Master of the Rolls cited with approval the words used by Sir Francis Jeaune, P., in Johnson v. Johnson (1901) P. 193 at $p.$ 195: 'the reason why this Court insists on steps being taken promptly ... and why it should be very strenuous on the subject of delay, are that it is a terrible thing that people should be going about the world, neither married nor unmarried, possibly liable to contract fresh and illegal matrimony, and certainly

exposed to temptation to commit adultery. That is a state of things which ought not to be prolonged a moment longer than can be properly avoided.' So the appeal in Rickard v. Rickard failed.

Want of means was always considered by Parliament a sufficient excuse for delay in presenting a bill for divorce, and this rule has ever since been acted upon in the Divorce Court (Harrison v. Harrison (1864) 3 S. and T. 362), though since the Poor Persons' Rules came into operation such a plea must be reinforced by some other explanation to be convincing in the case of an educated and intelligent person."

In parenthesis I would state that the petitioner in this case appears to be both educated and intelligent.

"A wife suing as a poor person was granted a decree though the adultery charged had been committed forty years previously (Black v. Black (1922) Times newspaper, June 15).

Other explanations of delay have been accepted as follows: eighteen years' delay by a wife to save a public scandal till after the death of her own sister (Newman v. Newman (1870) L. R. 2, P. and D. 57); a wife's hope of a reconciliation (Fullerton $v$ . Fullerton (1922) 39 T. L. R. 47; a wife's forbearance under cruel treatment (Green v. Green (1873) L. R. 3, P. and D. 121); twentyeight years' delay by a husband because he thought his own adultery was a bar (Pointon v. Pointon and Sutton (1922) 38 T. L. R. 848)."

The remarks of Bucknill J. in the case of Binney v. Binney and Hill, reported in All. E. R. (1936) Vol. 2, p. 410, may be usefully cited in this case: $-$

"The question is whether, in the exercise of my judicial discretion I ought to grant a divorce to Mr. Binney. Now the position of the law is this: the Judicature Act, 1925, section 178 (which merely enacts the old law on the subject) states in effect that the Court shall not be bound to pronounce a decree of divorce if it finds that the petitioner has during the marriage been guilty of adultery or, if in the opinion of the Court, he has been guilty of unreasonable delay in presenting or prosecuting the petition. The question which I have to decide is whether in this case there has been unreasonable delay. I understand that to mean a culpable delay, something in the nature of connivance or acquiescence, or something of that sort that on the facts shows the petitioner to have been insensible to the loss of his wife. I assume that the policy of the law in making those discretionary bars is to encourage lawful wedlock, and to set its face against adultery. It makes it more difficult for a petitioner to get a divorce if that petitioner has been guilty of adultery and it makes it more difficult for the petitioner to get his divorce if he has been guilty of culpable delay in bringing these proceedings. In this case, and looking at it from that point of view, the facts show that first of all the wife and co-respondent have been living in adultery for twenty-four years and the petitioner has himself been living in adultery over a period which ended in 1923, and was for the duration of nine years so living. In my view that does amount to culpable delay. I think that in effect the petitioner did acquiesce in his wife's adultery, and he took no steps whatever to terminate that, or give them a chance of marrying again or of setting himself free and enabling himself

to contract a lawful marriage. I have to exercise a judicial discretion, my own personal sympathy in the matter does not seem to me to be a proper ground on which I ought to exercise my discretion, and the law being as it is, and being satisfied as I am that there has been a culpable delay and a real acquiescence in the adultery I feel it is my duty in this case to refuse a decree, and I therefore dismiss the petition."

In the case of Boulting v. Boulting, 164 E. R., p. 1302 at p. 1304, the Judge Ordinary (Sir J. P. Wilde) in his judgment said:-

"... I might stop here, but other ground had been opened in argument—the long delay. This has been argued as a bar to the suit. I agree with the Queen's Advocate that it is not so. But it is a most material matter, which unexplained would lead the Court to conclusions fatal to the petitioner's relief. The true effect of delay in these suits is well expounded by Lord Stowell in Mortimer v. Mortimer, 2 Consist, 313. The first thing which the Court looks to 'when a charge of adultery is preferred is the date of the charge relatively to the date of the criminal fact and knowledge of it by the party, because if the interval be very long between the date and knowledge of the facts and the exhibition of them to this Court, it will be indisposed to relieve a party who appears to have slumbered in sufficient comfort over them, and it will be inclined to infer either an insincerity in the complaint or an acquiescence in the injury, whether real or supposed, or a condonation of it. It therefore demands a full and satisfactory explanation of this delay in order to take it out of the reach of such interpretations.' Thus, though delay of itself goes for little, the conclusions to which it may give rise may go the full length of barring the remedy. All depends on the other facts of the case. And in this case it had its effect, no doubt, on the jury, in determining the question of connivance. A wider ground remains. It is impossible to read the judgments of those who have administered the ecclesiastical law without appreciating the jealous care and reluctance with which they interfere with the obligations of the marriage vow. They never lose sight of the fact that, as cohabitation is the first object of marriage, separation should be the last expedient of the law. This expedient they therefore applied with a large and cautious discretion. Hence the doctrines of condonation, connivance and recrimination. Before the Court interfered, it ever insisted upon clean hands—a real grievance—a very present wrong—and, above all, sincerity—sincerity in the purpose for which the suit is instituted. The petitioner must feel and suffer under the wrong of which the complaint is made, and the Court must be satisfied that the remedy is sought as a genuine relief from the pressure of that grievance. Such is the beaten track of the decisions. It is impossible to tread too faithfully in footsteps so wisely placed. For seventeen years has this wife been passive. What is the cause of her present attitude? It may be that a judicial separation would yield an alimony, in her husband's present circumstances, greater than the allowance she has been content to receive so long; or there may be other reasons. But the Court looks in vain for any legitimate cause why she should suddenly regard her husband's conduct now in any different light from that of past days. Her husband has not interfered

$\mathcal{L}_{\mathcal{A},\mathcal{A}}$

with her, has not changed his conduct towards her, or his own mode of life. So far as the evidence went, the entire situation of the parties has remained wholly unchanged. Does the wife desire separation? She has it, in fact, already. Does she require support? She has that too, and upon terms arranged by herself. The Court cannot believe in the sincerity of such a suit, and must withhold from Mrs. Boulting any relief now founded upon an adulterous connexion over which for years she seems to have 'slumbered with sufficient comfort'.'

The Court requires to be satisfied of the sincerity of the complaint of the petitioner. One would be inclined to think that having £6.000, the proceeds of his farm, in his pocket, the petitioner would have invested, if he was sincere, some portion of this in the prosecution of divorce proceedings in England, and I have had no explanation other than that he could not afford anything as to why he did not take such proceedings. It is true that he went to a firm of Solicitors in Plymouth and presumably this was after he had invested practically the whole of his capital in the hotel. In this connexion the case of Nicholson v. Nicholson reported in L. T. Vol. 29 (1873), p. 108, is material. The judgment of Sir J. Hannen, J. O., reads:-

"Since she left service there has been a delay of more than two years. It cannot be allowed that the parties shall wait in indefinite time before they commence proceedings in this Court. If they do, they must negative the idea that the delay is improper. In order to explain the lapse of time in this case, it is said that the petitioner took a house, and that she had to furnish it before she could obtain a living from it. It is not without hesitation that I accept this excuse. I cannot adopt the proposition that a lapse of two years can be permitted without explanation. As to other cases, I must draw my own inference from the circumstances of each case. If I can see that a delay of two years has occurred, because the petitioner was content to let things be, I shall dismiss the petition. In this case, having taken a house, petitioner may have waited until she felt her position secured. I am anxious to impress upon the practitioners the view I take on this point, so that they may be fairly warned for the future."

The decided cases on the question of delay are not very helpful because in some cases it will be found that a delay of three years was held to be unreasonable delay, whereas in the case of Edwards v. Edwards, T. L. R. Vol 17 (1900) p. 38, a decree nisi for dissolution of marriage was granted after a delay of twenty years had taken place, and I have no doubt that cases in which even longer period of delay than that can be found where a decree nisi has been granted, e.g. the case of Black v. Black (supra).

It might well have been possible for the petitioner to have taken proceedings under the Poor Persons' Rules in England, especially during the time when he was hawking goods and when his income was between $£3-4$ a week. I am not in a position, of course, to say that such an income would not be prohibitive to his taking proceedings under the Poor Persons' Rules, but he certainly made no attempt to commence proceedings in this way, and he has told me that he had no knowledge that such proceedings were possible. In this connexion the case of Pointon v. Pointon, T. L. R. Vol. 38 (1921) p. 848, is relevant. That was a case where there was a delay of about twentyeight years, and the petitioner in that case sought to excuse the delay because he believed that his own adultery was a bar, in other words his ignorance of the law was considered a reasonable explanation of his delay.

Another case in which the same point arises was the case of Johnson v. Johnson, L. T. R. Vol. 84 N. S. (1901) p. 725, in which case again the petitioner entertained an erroneous view of the law, and in that case it seems to have been held that an erroneous idea of the law being present that factor alone would not of itself excuse the delay which had occurred.

In the case of Newman v. Newman reported in 22 L. T. (1870) p. 552, Lord Penzanze, J. O., says as follows: —

"But a long time has elapsed. The events to which she speaks occurred nearly twenty years ago ... But the Act does not say that in all cases where there is unreasonable delay the decree shall be refused. Although there may have been unreasonable delay, still the Court may grant a decree. Therefore, the question really is, whether, assuming unreasonable delay, the Court, under all the circumstances of the case, ought to withhold a decree? There was, no doubt, before the passing of the Divorce Act, a class of cases which did invite criticism in respect of unreasonable delay, cases where the husband's honour had been wounded, and he had put up with his own disgrace. In such cases the House of Lords acted on the principle Vigilantibus non dormientibus, jura subveniunt. That is a class of cases to which no doubt the discretionary bar would not apply; but<br>looking at all the circumstances of this case, I don't think it right to withhold the decree, and I shall therefore make the decree nisi with costs."

It is by no means a simple matter, having consulted most of the relevant authorities on this question of unreasonable delay, to decide whether the discretion of this Court ought to be exercised in the petitioner's favour. The delay is one of about ten years after the respondent had run away from the petitioner: he was in possession of some £6,000, no part of which he used in the prosecution of divorce proceedings. The respondent had a first child by the corespondent early in 1931, two other children have been born since. Notwithstanding that the petitioner has allowed his own child to go back to the mother and he says the child would not know him now.

Against all this it is true that he did consult a firm of Solicitors in Plymouth with a view to taking proceedings and at that time his capital was tied up in the hotel which he had purchased, which hotel within two years was a financial failure and resulted in the loss of the petitioner's capital. It is not to be pretended that it is an easy matter for the petitioner, earning between $£3-4$ a week, to undertake divorce proceedings unless such proceedings could be brought within the Poor Persons' Rules in England—and the petitioner has informed me, as I have said, that he was ignorant of the existence of these Rules—and moreover that his income was sufficient only for his maintenance. The purchase of the lorries however proves that his income considerably increased and indeed he has said he was making at that time an income of about £8 per week. He has suggested that all the time it was necessary to use this income for his own maintenance and that there was none left over for the cost of divorce proceedings. It is difficult to accept this. If the petitioner were sincere and anxious to be rid of a wife who was living with another man

I am satisfied he could have found the money either when he had £6,000 in his possession or at the later stage when he was earning £8 per week. The Court fees of an undefended divorce suit in England are not more than £10 (see Browne and Latey, p. 371, 11th Edition) and on the then facts of the case according to the evidence before me such a suit would almost certainly have been undefended as this petition before me is. It is difficult to see that the total costs of such a suit in England could have been more than £60 or $£70$ even including the cost of evidence taken in East Africa. These proceedings before me moreover were not instituted until May of this year although the petitioner had collected £400 and arrived in Kenya in February, 1938, and obtained employment immediately. Even then he did not take proceedings immediately. He is now in receipt of an income of £20 per month and his keep. His explanation of prohibitive poverty on the evidence he has given appears to me inadequate. There have been at least three stages during the last ten years when he could have taken proceedings and yet he has slumbered until a month ago. I cannot help feeling that the petitioner may have allowed this long time to elapse before presenting the petition either for some collateral reason which I do not know or because he was insensible to the injuries inflicted by the loss of his wife. It is no doubt desirable for the respondent to be able to marry the corespondent but the case of Pears v. Pears, 107 L. T. (1912) p. 505, shows that such a desideratum is in itself immaterial and irrelevant though it may be very material in considering the question whether the delay was in fact unreasonable or not. If that is the motive for these proceedings, and I have no evidence it is, it would have been irrelevant if the proceedings had been taken in due time and I cannot see that the delay in this case makes it more relevant. From the fact that the Poor Persons' Rules in England set a limit of $£2$ per week in ordinary cases and £4 per week in exceptional cases may be presumed the reasoning that all persons earning over that amount should be able to pay for the cost of divorce proceedings.

The child of the marriage has, with the petitioner's consent, been living with the guilty mother most of its life, in fact the petitioner has not seen the child since it was a baby, and I find it difficult to reconcile such a position with any feeling of injury in the mind or heart of the petitioner. Such a consent is more consistent with acquiescence in or indifference to the state of affairs between respondent and co-respondent than with any sense of injury. The handing over of the child to the mother is an action more akin to an approval or a consent to the adultery than to a resolution on the petitioner's part to preserve his legal rights.

I am inclined to the opinion that on a review of all the authorities, and having carefully considered all the facts of this case, that the petitioner has not given a full and satisfactory explanation of the delay. His omission to take proceedings is more consistent with a real acquiescence in or condonation of his wife's adultery than with a continuing sensibility of injury inflicted. In other words, and to adopt the words of Bucknill J. in *Binney v. Binney and Hill*, I think there has been a culpable delay something in the nature of connivance or acquiescence that shows the petitioner to have been insensible to the loss of his wife.

The petition is dismissed.