S v S and G (High Court Civil Cause 1 of 1940) [1940] ZMHCNR 16 (31 December 1940)

[Vol. II S. v. S. AND G. High Court Civil Cause No. 1 of 1940. Divorce—adultery proved by production of decree nisi against co-respondent and letter of admission from respondent. In this case the only evidence produced to the Court was the decree nisi in which the High Court in England found that the present co-respondent had committed adultery with the present respondent and also a letter from the present respondent admitting that she was living with the co-respondent. On this evidence the High Court granted a decree nisi although in the decree nisi from the High Court in England there was no definite finding that the present respondent, who was not a party to those proceedings had com­ mitted adultery with the present co-respondent. R obin son , J .: In this case the petitioner is asking for the dis­ solution o f his marriage with his wife, the respondent, on the grounds o f her adultery with the co-respondent, G. The only unusual point in this case is that it is sought to prove the adultery by producing in evidence the petition o f Mrs. G., the wife o f the present co-respondent in which the adultery o f her husband (present co-respondent) is alleged with Mrs. S., the present respondent. That petition, which was undefended, was heard in the divorce court in London and a decree nisi was pronounced. A certified copy o f the decree nisi is also produced which sets out that the Judge pronounced that the petitioner had sufficiently proved the contents o f the said petition and decreed that the marriage between the petitioner and G. be dissolved by reason that the respondent has been guilty o f adultery. The difficulty in this case is that, although it has been found that G. committed adultery with Mrs. S., there is no direct finding that Mrs. S. committed adultery with G. In the case o f Ruck v. Ruck (1896) p. 152 the facts were somewhat similar. In a petition by a wife for dissolution o f her marriage on the grounds o f adultery coupled with desertion, the decree in a previous suit in which her husband was co-respondent, was produced. This decree stated that the jury found the respondent had been guilty o f adultery with the co-respondent and that he had been condemned in costs, but contained no finding by the jury that the co-respondent had been guilty It was held that the decree was not o f adultery with the respondent. by itself sufficient evidence o f adultery against the husband. In Little v. Little (1927) p. 224 the position was broadened. In that case the adultery o f a husband respondent in his wife's suit for dissolution o f marriage was sufficiently established by the production o f the decree in a form er suit, upon which it appeared that damages had been assessed Vol. II] against him as co-respondent in respect o f the same adultery and that he had been ordered to pay such damages without the decree in question containing any express and separate finding that he committed the adultery in question. In this case I have before me the position in which the only allegation of adultery is that 6 . com m itted adultery with Mrs. S. There is also the decree nisi which sets out that the petitioner had sufficiently proved the contents o f the said petition and there is a letter, Ex. 1, written by the respondent, Mrs. S., in which she says she has been living with 6 . for well over the past year and she is continuing to do so. I I I am driven to the irresistible conclusion that she is guilty o f adultery with G. and I pronounce a decree nisi with costs against the co-respondent as prayed.