Susan Elizabeth Horton v. Gerard Francis Horton and Another

HCMC000019A/1983

IN THE HIGH COURT OF JUSTICE

DIVORCE JURISDICTION

BETWEEN

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Coram: Hon. Power, J.

Date: 8th November 1983.

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JUDGMENT

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1. Application is made to file a supplemental petition alleging as behaviour an allegation made in an answer. This is the first time that I have had to deal with such an application.

2. Miss Leong says that the supplemental petition really contains a suggestion that the answer is vexatious and that the only proper recourse for a petitioner, who has made such a suggestion, is to take steps to have that part of the answer struck out. She says, further, that the pleading of an answer cannot properly be regarded as conduct in the course of the marriage.

3. Mr. Glynn who appears for the petitioning wife does not enter into the question as to whether or not the answer might be liable to be struck out as being vexatious. What Mr. Glynn says is that a pleading is a matter of fact which must be made upon the instructions of the party. He says that once the pleading is made, it must be regarded as the act of the party. He submits that the marriage is still subsisting and that the petitioner in the present case is entitled td plead such an act as part of the behaviour of the respondent. He submits that whether or not the answer might be struck out as being vexatious is not material to this application.

4. I am in some doubt as to whether the supplemental petition is in the correct form. I have pointed this out during the course of argument and Miss Leong has not taken any point in this regard. I am unable to see any reason why the petitioner should be required to apply to have the answer struck out and should be debarred from relying upon the answer as an act of the respondent. That being so, I consider the., only proper course is to give leave to file a supplemental petition, the costs will be costs in the cause and the respondent to have 14 days to file an answer.

Representation:

Mr. Glynn of Hampton, Winter & Glynn for Petitioner.

Miss J. Leong (instructed by Helen A. Lo & Co.) for Respondent.