Macaulay v Macaulay (DIV C 27 of 1966) [1967] SLSC 1246 (4 January 1967)

Council) and two decisions of the Supreme Court of the United States of America, namely, Massachusetts v. Mellon (4) and Ex p. Levitt (3). All these authorities lay down what I consider to be a sound and sensible proposition of law (and, in fairness to Mr. Smythe, he did concede this in the course of his learned arguments). I have carefully perused the indorsement on the writ of summons and the amended statement of claim. Nowhere do I find any allegation which falls within this requirement. In my view the possible threat alleged in the amended statement of claim merely shows a likelihood of the plaintiffs-respondents suffering as a result of the executive acts com plained of in some indefinite way in common with other people generally. This in law is insufficient to entitle the plaintiffs respondents properly to invoke the jurisdiction of this court. I therefore hold in the circumstances that the purported invocation of the jurisdiction of the court under s.24 of the Constitution by the plaintiffs-respondents is wrong. The rulings I have made in this decision substantially dispose of the main action. With regard to the first part of the motion, suffice it to say that there were substantial points of law involved requiring an interpretation of the Constitution. The result is that the motion succeeds. The main action hereby stands dismissed. The plaintiffs-respondents are hereby ordered to pay to the defendants-applicants the costs of the motion and that of the main action, such costs to be taxed. Order accordingly. MACAULAY v. MACAULAY SuPREME CoURT (Cole, Ag. C.J.): January 4th, 1967 (Divorce Case No. 27 /66)

[1] Family Law-divorce-condonation-evidence-forgiveness, cohabi tation and sexual intercourse: Where a matrimonial offence is forgiven and remitted by the injured spouse and the parties cohabit and have sexual intercourse, the offence is condoned (page 18, lines 32-39).

[2] Family Law-divorce-condonation-revival of condoned offence -cruelty revived by great unkindness: Condoned cruelty may be revived by an act or acts of great unkindness (page 19, lines 9-10).

MACAULAY v. MACAULAY, 1967-68 ALR S.L. 14 S.C. Family Law-divorce-condonation-revival of condoned offence graver offences revived by slighter transgressions: The graver the matrimonial offence that has been condoned, the slighter is the act required to revive it (page 19, lines 10-12).

[4] Family Law-divorce-condonation-revival of condoned offence 5 -revived by subsequent offence: The condonation of a matrimonial offence by the reinstatement and forgiveness of the guilty spouse is subject to a condition implied by law that he or she shall commit no further matrimonial offence, and if a further matrimonial offence is committed the condonation is cancelled and the old cause of complaint is revived (page 18, line 41-page 19, line 4). 10

[5] Family Law-divorce-cruelty-test of cruelty-danger or reason able apprehension of danger to life or limb or health: Cruelty as a ground for divorce is conduct of such a character as to cause danger to life, limb or health, bodily or mental, or to give rise to a reason able apprehension of such danger (page 18, lines 12-15).

[6] Family Law-divorce-cruelty-test of cruelty-kindness may co exist with cruelty: There may be cruelty sufficient to ground a divorce although the guilty spouse is not altogether unkindly dis posed towards the injured spouse and has performed acts of kind ness and generosity towards him or her (page 18, lines 26-31).

[7] Family Law-divorce-decree-petition and cross-petition-decree on both where both parties guilty of matrimonial offences and to blame for breakdown of marriage: Where the parties to a divorce petition and cross-petition have both been guilty of matrimonial offences and both are to blame to some extent (though not necessarily the same or nearly the same extent) for the breakdown of the marriage, the proper decree is a decree of divorce on both the petition and the cross-petition (page 24, lines 5-13).

[8] Family Law-divorce-petitions-petition and cross-petition-both succeed where both parties guilty of matrimonial offences and to blame for breakdown of marriage: See [7] above.

[9] Family Law-maintenance-alimony pending suit-where alimony pending suit prayed, maintenance may be ordered from date petition filed: On a decree for divorce upon a petition containing prayers for alimony pending suit and secured provision for the wife and the children of the marriage, the court may order maintenance for the wife and children to be paid from the date of filing of the petition (page 24, lines 22-24; page 25, lines 7-14).

[10] Family Law-maintenance-children-children's maintenance may be ordered in divorce proceedings from date petition filed: See [9] above.

[11] Family Law-maintenance-may be ordered in divorce proceed- 40 ings from date petition filed: See [9] above.

The petitioner petitioned for a divorce on the ground of cruelty and prayed for alimony pending suit and maintenance for herself and the children of the marriage. The respondent by his answer prayed for a divorce on the ground of cruelty. 5 The parties had been married six years. There were three children of the marriage. The petitioner was sensitive and highly strung. A certain amount of social life was necessary to her happiness. She liked going to parties and was unable to forgo the company of her relatives and friends. The respondent's work and 10 his ambitions took first place in his life. He worked late hours and did not like going to parties. His attitude towards the petitioner was extremely possessive and he was very reluctant to allow her out of his sight. He required her to remain at home, or to go out only in his company. In consequence, there were frequent quarrels between 15 the petitioner and the respondent. When the petitioner disagreed with the respondent or disobeyed him, he would sulk or nag and she would be reduced to tears and sometimes to hysterical, frenzied or violent behaviour. She came under increasing nervous strain; her health was affected and she suffered from lack of sleep, depression, 20 dizziness, headaches and generalised aches and pains and, eventually, more serious psychosomatic symptoms of an acute anxiety state. The respondent was aware of her condition and had been medically advised that he should humour and indulge her and avoid arguments. He nevertheless persisted in imposing his will on the petitioner and 25 quarrels continued to take place. In June 1966, the petitioner forgave and remitted the respondent's conduct towards her. She continued to cohabit with him, and sexual intercourse took place between them. At the beginning of July, the petitioner quarrelled with the respondent about a letter he 30 had written to another woman. He made no attempt to apologise for this, or to reassure or mollify the petitioner. That evening she absented herself from home. When she returned she woke the respondent and provoked a fight, in which he beat her severely and she attacked him with a broken bottle. After this she slept in 35 a separate room, but four days later she came to their room and began to dress to go out to a party. The respondent said that if she went out she should arrange to sleep elsewhere, because police would prevent her from returning to the house; and he made arrangements for armed police to be sent to the house. The petitioner spent 40 the night at her parents' house, and removed her belongings and the children from the matrimonial home next day. The present pro ceedings ensued.

MACAULAY v. MACAULAY, 1967-68 ALR S.L. 14 S.C. The petitioner contended that the respondent's conduct towards her up to June 1966 amounted to cruelty entitling her to a divorce. The respondent contended that if there had been cruelty on his part, which was denied, it had been condoned in that month. Each party contended that the other had been guilty of cruelty in July 5 1966, and the petitioner contended that the respondent's cruelty in July had revived his previous cruelty. Cases referred to :

(1) Beale v. Beale, [1951] P. 48; [1950] 2 All E.R. 539.

(2) O'Brien v. O'Brien, [1950] W.N. 330; (1950), 94 Sol. Jo. 486, dicta of Denning, L.J. applied.

(3) Richardson v. Richardson, [1950] P. 16; [1949] 2 All E.R.

330. Miss Wright for the petitioner; Barlatt for the respondent. COLE, Ag. C.J.: This is a wife's petition for a dissolution of her marriage with the respondent on the ground of cruel treatment of her by the respondent since the celebration of the marriage. This marriage was celebrated on April 23rd, 1960 at St. Anthony's Church in the Parish of St. George in Freetown, Sierra Leone. [The learned Acting Chief Justice reviewed the evidence relating to the period to June 1966 and stated his findings of fact, and continued : ] Before I deal with the incidents of July 5th and 9th, 1966, perhaps it is necessary for me at this stage to consider whether all these acts I have found proved, or one or other of them, in law amount to cruelty. I say this because in para. 42 of the respondent's answer he pleads as follows : "If, which is denied, the respondent has been guilty of the alleged or any cruelty, the petitioner with full knowledge of the facts alleged in paras. 10-34 condoned the same by co habiting with him until July 5th, 1966, and by having sexual intercourse with him until the middle of June, 1966, with the intention of forgiving and remitting the alleged offences and each and every one of them." The petitioner, on the other hand, pleads in para. 16 of her reply as follows : "The petitioner will say in reply to para. 42 of the answer

that despite the cruelty alleged she had always tried to give the marriage a chance and make it work, especially as they had three young children, and that was the reason she cohabited with the respondent until June 1966 although her 5 health had deteriorated considerably during the marriage and she was a bundle of nerves because of the respondent's cruelty to her as alleged. The petitioner will further say that, although she forgave and remitted the offences, the further cruelty recited in paras. 35 and 37 revived the condoned offences." 10 Paragraphs 35 and 37 of the petition relate to the incidents of July 5th and 9th, 1966, respectively. The legal conception of cruelty is described as being conduct of such a character as to cause danger to life, limb or health, bodily or mental, or to give rise to a reasonable apprehension of such 15 danger. To establish legal cruelty two distinct elements must be clearly shown, namely first, the ill-treatment complained of, and secondly, the resultant danger or the apprehension thereof. The findings of fact I have already made, in my view, present the general picture of the imposition by the respondent of his will 20 on the petitioner, and a persistence in his callous conduct although aware of its effect on the petitioner's health, resulting in the con siderable deterioration of the health of the petitioner. I therefore hold that my findings come within the legal conception of cruelty. I find that since the celebration of their marriage and up to their 25 last sexual intercourse in June 1966, the respondent treated the petitioner with cruelty. This finding, of course, does not mean that the respondent was not at all kindly disposed towards the petitioner. Indeed there is ample evidence of several acts of kindness and generosity on the part of the respondent towards the petitioner. 30 On balance, however, the scales tilt heavily on the side of legal cruelty. The petitioner admits having had sexual intercourse with the respondent in June 1966. She also admits having continued to cohabit with the respondent in spite of his cruelty towards her. 35 She also admits that she forgave and remitted the offences hitherto complained of. In those circumstances, I find that although the respondent treated the petitioner with cruelty up to their last sexual intercourse in June this year, the petitioner has condoned such cruelty. 40 The question now arises, has there been a revival of this cruelty? It is settled law that the reinstatement and forgiveness of a guilty

MACAULAY v. MACAULAY, 1967-68 ALR S.L. 14 S.C. spouse is subject to a condition implied by law that he or she shall commit no further matrimonial offence. If, therefore, a further matrimonial offence is committed, the condonation is cancelled and the old cause of complaint is revived. The plain reason and good sense of the implied condition is that the guilty spouse should not 5 only abstain from the act or acts he has been guilty of, but should in future in every respect treat the other spouse with conjugal kindness. The cases of Richardson v. Richardson (3) and Beale v. Beale (1) lay down the proposition that an act or acts of great unkindness are capable of reviving condoned cruelty. There is authority for the 10 proposition that the graver the initial offence the slighter is the act required to revive it. With these legal principles in mind, I shall now examine the evidence relating to the alleged incidents subsequent to the date condonation took place, which I have found to be some time in June 1966. 15 [The learned Acting Chief Justice read the relevant allegations in the petition, the answer and the reply, and continued:] I shall deal first of all with the events of July 5th, 1966. They started off with the petitioner having discovered certain impressions on a page of a writing pad at the matrimonial home. The petitioner 20 could see from the impressions that the respondent had used the pad. She thereupon proceeded to trace in ink in her own hand what had been written. It is in evidence and is marked Exhibit E. It turned out to be a part of a letter which had been written by the respondent to another woman. The respondent himself said so. 25 The petitioner describes the letter as "highly emotional." This has not been denied. I have perused Exhibit E and given it the due con sideration it deserves. I do not consider the description given it by the petitioner an exaggeration. Immediately the petitioner made her discovery, she telephoned the respondent, who was at work, to 30 say that she wanted an interview with him in order to discuss with him something of a serious nature. The respondent there and then invited the petitioner to lunch with him in his office. She declined the invitation. According to the respondent, the petitioner "promised to call at his office to see him after lunch." There is no evidence 35 that the respondent prevented the petitioner from coming to his office or said that he would rather see her at the matrimonial home at lunch-time or at another time. It should not be overlooked that, according to the respondent, the petitioner had already informed him "that she wanted to talk about something rather serious." In 40 the circumstances I fail to appreciate the submission of Mr. Barlatt

that it was an act of provocation on the part of the petitioner to go to the office of the respondent to discuss Exhibit E. The evidence is that the respondent is a hard worker throughout the day as well as throughout the night. I therefore see nothing, in those circum- 5 stances, unusual in the petitioner's having requested the interview, and nothing provocative in her having gone to the respondent's office. The respondent, in my view, invited the petitioner there. On arrival, the petitioner faced the respondent with Exhibit E and asked for an explanation. He admitted having written it, but did not 10 disclose the "lady fair" to whom the letter of which Exhibit E was part had been written; he said he would rather not say. The petitioner became upset and took off her wedding and engagement rings and put them on the respondent's side-table. She also picked up her photograph off his desk. She took Exhibit E from the 15 respondent and put it inside her bag. She told the respondent she was going to tell her father and the respondent's mother. She then left the office in a rage. I am satisfied on the evidence that the petitioner was upset by the discovery of Exhibit E, and became more upset by the 20 rather callous way in which the respondent treated the whole matter at the interview. There is not a scintilla of evidence to show that the respondent in any way tried to pacify the petitioner for something so palpably wrong, which he, the respondent, had admitted having done. There is also not a scintilla of evidence to show that either at 25 that interview or at any other time did the respondent try to make it up with the petitioner, or even to apologise to her for what I think any reasonable person would consider to be a wrongful act. In view of the existing background, with particular reference to the advice which the respondent's own doctor-Dr. Hunt-had given 30 him, one would have expected more reasonable treatment of the petitioner by the respondent. Applying the legal yardstick I have already set out above, I find this treatment of the petitioner by the respondent by itself an act of great unkindness in the circumstances, which was not only capable of reviving but in fact did revive the 35 condoned cruelty which I have already dealt with. On this ground alone, according to the legal authorities, the petitioner is bound to succeed. There are certain incidents, however, that took place that same night, July 5th, 1966, at the matrimonial home on which both the 40 petitioner (in her petition) and the respondent (in his cross-petition) rely in support of their respective prayers. I consider it appropriate