Coetzee v Coetzee (ZR 89 (HC)) [1965] ZMHC 13 (12 July 1965)

COETZEE v COETZEE (1965) ZR 89 (HC) HIGH COURT BLAGDEN CJ 12th July 1965 Flynote and Headnote [1] Family law - Divorce - cruelty - burden of proof: The pe��oner must prove cruelty to a standard equivalent to proof beyond reasonable doubt. [2] Family law - Divorce - cruelty defined: In a pe��on for divorce based on cruelty the conduct complained of as cruel must be (1) of a grave and weighty character and (2) such as to cause injury to health or reasonable apprehension of such injury. Cases cited: (1) Davis v Davis [1950] 1 All ER 40. (2) Bater v Bater [1950] 2 All ER 458. (3) Loveden v Loveden (1810) 2 Hag. Con. I; 161 ER 648. (4) Noble v Noble and Ellis (No. 2) [1964] 1 All ER 577; [1964] 2 WLR 349. (5) Mulhouse v Mulhouse [1964] 2 All ER 50; [1964] 2 WLR 808. Judgment Blagden CJ: I adjourned this case for decision because it has caused me some concern for certain reasons. This is a wife's pe��on based on cruelty, and it is undefended. The concept of what cons�tutes cruelty sufficient to jus�fy the grant of a decree of dissolu�on of marriage has undergone no litle modifica�on over the last two or three years. It has been generally accepted that such cruelty cannot be made the subject of a sa�sfactory defini�on, nor can the boundaries of it be determined or delimited with any degree of precision or accuracy. But in numerous English decisions on the subject certain cardinal principles emerge. [1] In the first place it must not be forgoten that it is for the pe��oner to prove the cruelty alleged and prove it to a standard which has been equated with that of proof beyond reasonable doubt. See Davis v Davis [1950] 1 All ER 40, and Bater v Bater [1950] 2 All ER 458. In the former case Denning, LJ, made some observa�ons at page 43, which might be regarded as dubitante, but in the later he concurred in the court's decision, and delivered some further observa�ons at page 459, on the significance of the expression 'proof beyond reasonable doubt'. He stated that a divorce court would require a degree of probability which was propor�onate to the subject mater. He then went on to say 'I do not think the mater can be beter put than Sir William Scot put it in Loveden v Loveden [2 Hag. Con. 3]: "The only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discre�on of a reasonable and just man to the conclusion . . .".' [2] In the second place the conduct complained of as being cruel must be of a grave and weighty character and in the third place the conduct must be such as to cause injury to health or 1965 ZR p90 BLAGDEN CJ reasonable apprehension of such injury - see as to both these proposi�ons, Noble v Noble and Ellis (No. 2) [1964] 1 All ER 577, per Searmen, J, at 579, and Mulhouse v Mulhouse [1964] 2 All ER 50 per Sir Jocelyn Simon at 56. The pe��on here is undefended, and all the evidence regarding the cruelty comes from the pe��oner. It stands uncontradicted and I see no reason to doubt what she says. What the wife complains of here can be summed up in three words - lack of considera�on. She gave evidence of the husband's inconsiderate conduct indulged in over a period of some years, and in par�cular over the last twelve months. She pointed to a pronounced indifference by the husband as to her feelings in regard to various maters, and in par�cular to two of the most important components of married life, companionship and sexual intercourse. I have come to the conclusion that this indifference was of a grave and weighty character and that it did result in some injury to her health with reasonable apprehension of more. In these circumstances I find she has proved her case of cruelty to my sa�sfac�on, and I am prepared to exercise my discre�on in her favour and grant her a decree nisi. Earlier in the proceedings I was asked to, and did sanc�on an agreement entered into between the wife and the husband in this case. But my sanc�on was expressly made subject to the discre�on of the trial judge. As I am the trial judge and have now had the advantage of seeing the pe��oner and hearing her evidence, I must now look into this agreement in the light of that advantage. By it the pe��oner agreed not to claim costs, alimony or maintenance against the respondent, and she also agreed that as the respondent was con�nuing to live in the matrimonial home he would be beter able to look a�er the children of the family, to whom it was agreed she would have access at reasonable �mes. The wife also agreed, as I understand it, that moneys belonging to her or upon which she might have some claim in the respondent's banking account would be regarded as the respondent's for use by him for the maintenance and advancement of the children. I am not yet sa�sfied with regard to these arrangements, insofar as they affect the children. The children are s�ll very young; K two younger children should be with their mother, and it may well be, if only to avoid separa�ng them, the elder as well. The pe��oner has not asked for their custody. But before making the decree absolute in this case I must be sa�sfied in regard to whatever arrangements are made for the children, that they are the best that can be made in the circumstances. is 9½ years of age, G 5½ and C not yet 4. Ordinarily the I, or if I am not available, another judge, can adjudicate on this in Chambers. A welfare report on the children and on the respondent's home would be of the greatest assistance, likewise some informa�on, if such is as yet available, regarding the home which the pe��oner proposes to set up when she re-marries. 1965 ZR p91