Buchler v Buchler

[1947] P 25, [1947] 1 All ER 319, 45 LGR 442, 111 JP 179, [1947] LJR 820, 91 Sol Jo 99, 176 LT 341, 63 TLR 100

Court: CA

Judgment Date: circa 1947

Catchwords & Digest

HUSBAND AND WIFE, JOINT PROPERTY AND MATRIMONIAL CAUSES - MATRIMONIAL CAUSES AND GROUNDS FOR RELIEF - DIVORCE - IRRETRIEVABLE BREAKDOWN - DESERTION AS PROOF OF IRRETRIEVABLE BREAKDOWN - CONSTRUCTIVE DESERTION - WIFE FORCED OUT OF MATRIMONIAL HOME - GENERAL RULE

Where the desertion alleged in a petition for divorce on the ground of desertion is constructive desertion, it is important to see that the circumstances necessary to constitute that offence are present before the final step of dissolving the marriage is taken by the court. Incompatibility of temperament or unhappiness in the marital relationship which is not caused by cruelty are not by themselves grounds of divorce, nor by themselves do they entitle the spouse affected to leave the matrimonial home and then to claim that the other spouse, even if he or she is alone to blame for the ill-success of the marriage, has been guilty of the grave matrimonial offence of desertion. It is as necessary in cases of constructive desertion as it is as necessary in cases of actual desertion to prove both the factum and the animus on the part of the spouse charged with the offence of desertion. The spouse charged must be shown to have been guilty of conduct equivalent to 'driving the other spouse away' from the matrimonial home and to have done so with the intention of bringing the matrimonial consortium to an end. In each case the intention may be inferred if the circumstances are such as to justify the inference. The acts alleged to be equivalent to an expulsion of the complaining spouse must be of such gravity and so clearly established that they can fairly be so described. If they do not satisfy this test, not only is expulsion in fact not proved, but it is not legitimate to infer an intention to desert. A man may wish that his wife would leave him, but such a wish, unless accompanied by conduct which the court can properly regard as equivalent to expulsion in fact, can have no effect whatever. Conversely, where the conduct of the required nature is established, the necessary intention is readily inferred, since no one can be heard to say that he did not intend the natural and probable consequences of his acts. The acts sufficient to satisfy this test must be of a serious and convincing nature, but conduct short of an actual matrimonial offence may be sufficient. The conduct, however, must, from the very nature of the offence of desertion, obviously be of a grave and convincing character. Whether in any given case this requirement is fulfilled is a question of fact on which a jury would require to be carefully directed.

A husband formed an association with one of his male farm-hands which, while in no way sexually improper, was persisted in by the husband to the exclusion of his wife and to such an extent as to cause her great distress and to arouse comment among friends and neighbours and villagers who would be likely to think it had a homosexual basis. The wife continually objected to the husband's conduct, and ultimately stated that she would leave the matrimonial home unless it ceased. The husband replied that, if the wife did not like it, she could 'clear out.' And he persisted in the association, with the result that she left him. On the wife's petition and the husband's cross-petition for divorce on the ground of desertion: Held while the husband's conduct, no doubt, caused the wife intense unhappiness and was such that no decent man would have been guilty of it, it did not justify her in treating it as a dismissal from the consortium and in leaving the matrimonial home.

Cases referring to this case

Annotations: All CasesCourt: ALL COURTS

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Treatment

Case Name

Citations

Court

Date

Signal

Considered

Saunders v Saunders

[1965] P 499, [1965] 1 All ER 838, [1965] 2 WLR 32, 108 Sol Jo 605

P, D and Admlty

circa 1965

Considered

Hall v Hall

[1962] 3 All ER 518, [1962] 1 WLR 1246, 106 Sol Jo 650

CA

circa 1962

Considered

Dixon v Dixon

[1953] P 103, [1953] 1 All ER 910, [1953] 2 WLR 748, 97 Sol Jo 249

P, D and Admlty

circa 1953

Considered

Jamieson v Jamieson

[1952] AC 525, [1952] 1 All ER 875, 116 JP 226, [1952] 1 TLR 833, 1952 SC (HL) 44, 1952 SLT 257

HL

circa 1952

Considered

Lane v Lane

[1952] P 34, [1952] 1 All ER 223n, 116 JP 72n, [1952] 1 TLR 250

CA

circa 1952

Considered

Bartholomew v Bartholomew

[1952] 2 All ER 1035, 117 JP 35, [1952] 2 TLR 934

CA

circa 1952

Considered

Lane v Lane

[1951] P 284, [1951] 1 TLR 1125

P, D and Admlty

circa 1951

Applied

Simpson v Simpson

[1951] P 320, [1951] 1 All ER 955, 115 JP 286, [1951] 1 TLR 1019

P, D and Admlty

circa 1951

Considered

Edwards v Edwards

[1950] P 8, [1949] 2 All ER 145, 47 LGR 541, 113 JP 383, [1949] LJR 1335, 93 Sol Jo 450, 65 TLR 419

CA

circa 1950

Considered

Lauder v Lauder

[1949] P 277, [1949] 1 All ER 76, 93 Sol Jo 42

CA

circa 1949