Evelina Fun Lindsay v. Derek Victor Lindsay

FCMC001569/1982

Behaviour. Husband did not gratify wife's sexual needs and deprived her of the opportunity to have children. Detrimental effect on wife's health not proved nevertheless held husband has behaved in such a way Petitioner cannot reasonably be expected to live with him.

2         Irretrievable break down of marriage can occur when one party does not wish to reconcile despite other parties' genuine desire to effect reconciliation.

Note to Reporter - if published suggest case be known as L. v. L.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

DIVORCE JURISDICTION

ACTION NO. 1569 OF 1982

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Coram: H. H. Judge Caird in Court

Date: 16.9.83

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JUDGMENT

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1. The parties were married in Hong Kong on the 27th of March 1975 and the Petitioner now claims that the marriage has broken down irretrievably.  The fact upon which she relies on to support this is that she cannot reasonably be expected to live with the Respondent. There follows a number of specific instances pleaded in the petition.

2. The Respondent defends and it is manifestly clear that the reason for his defending is his sincere and earnest desire for reconciliation.

3. Prior to the marriage the parties cohabited together for some two months during which time they enjoyed satisfactory sexual relations with each other. This was common ground.

4. The Petitioner went on to describe events subsequent to the marriage, commencing with the honey-moon during which period she claimed that intercourse occurred only on some four occasions. Respondent in his evidence during cross-examination said "4, it may be 14" but he certainly did not seriously dispute Petitioner's allegation.

5. May I say at the outset that where Petitioner has given details of the lack of or unsatisfactory aspect of sexual relations pertaining between the parties, subsequent to marriage, I, in view of Respondent's evidence, accept her evidence.

6. Petitioner bases her complaints as to sexual matters under two heads: (a) Lack of frequency of sexual relations and (b) when sexual relations did occur these would, if not always, almost inevitably be marred by the Respondent practising "coitus interruptus."

7. Petitioner gave evidence as to her younger sister suffering from Downes Syndrome, this in response to a question from the Legal representative of Respondent. It appeared from Petitioner's evidence that Respondent did not want children and in this regard I think it is of significance that at the time of marriage, Petitioner was aged 27 and at the time of hearing of the petition she is aged 36, some 9 years having passed without her having borne a child.

8. I am completely satisfied that the Petitioner had an earnest and reasonable desire (and I am moderate in my choice of language in this regard) to have a child or children.

9. The Respondent gave evidence and it is of interest that in his closing address Mr. Pilbrow submitted that the Respondent was a "proud and callous man" I reject that submission totally, for reasons which will become apparent. I believe and find Respondent to be an honourable man, a former officer and still a gentleman and indeed in giving his evidence he displayed considerable courage and humanity in conceding his sexual inadequacy dating from the time of their marriage, an inadequacy which as I have earlier referred to, was not manifested in any way in the 2 months leading up to their marriage.

10. In Paragraph (B) of the particulars, the Petitioner states as follows:

"Throughout the marriage the Respondent has for the most part shown no affection or tenderness to the Petitioner......."

I reject this as I reject all other aspects of Petitioner's evidence which consists of complaints against her husband other than those matters relating to lack of sexual activity or unsatisfactory sexual relations to which I have already alluded. Respondent gave up a great deal upon his marriage. He gave op a commission in the RNVR; because his wife's nationality and/or race, meant she was not acceptable as a security risk. I accept his evidence in this regard. He has sold out his United Kingdom interests and purchased property in Australia because his wife likes to visit Australia where her parents live. Incidentally he expressed a liking for his wife's parents. Further, he has given up holidays in Europe where he would prefer, rather than holiday in Australia every year.

11. There was some convincing evidence given by Respondent when I put to him the quotation from Paragraph (B) referred to above. He replied giving three examples. First, that every night that they slept together his wife slept with his arts around her. Second, when they went out together they went hand in hand. Third, that every morning during their married life he cooked and brought her breakfast in bed. He gave other evidence saying that to outsiders theirs appeared to be the perfect happy marriage. I believe him.

12. The Petitioner painted a different picture of the marriage however this was contradicted to some extent by evidence corroborating the evidence of the husband that is a number of letters written by the wife to the husband after the wife ceased to reside with him (She having left the matrimonial home whilst he was absent in China on business). There was also a Christmas card unsigned but in an envelope being handwriting identified by Petitioner as being hers.  These letters showed a degree of affection and tenderness that had existed at least in the past and I think the Petitioner at the time of writing felt a great degree of affection still continuing. In any event they, as I have said earlier, corroborated Respondent's evidence.

13. There were allegation of temper and violence laid against Respondent. He when cross-examined by Mr. Pilbrow as to whether he had ever assaulted his wife said that if "restraint were to be considered an assault then yes". I accept the answer of Respondent and hold that whenever he has used force upon his wife this has been in the form of restraint.

14. In rejecting the wife's evidence on the matters that I have discussed beforehand I take into account not only the Petitioner's evidence and the letters to which I have already referred to but in particular her own demeanour, particularly at the outset of her giving evidence, the taking of the oath was I thought a perfect example of overacting, this of course in some instances, can be brought about by emotions of the moment and I have considered this possibility. I believe that the wife has exaggerated on a number of occasions in her evidence although never when she dealt with sexual aspects.

15. The wife denied having sexual relations with any other man since leaving her husband. I believe her in this regard. But the husband gave evidence in response to this saying that the wife had informed him that she had been sleeping with another man. I believe the husband but it is my view that this has merely been a taunt thrown by the wife at the husband.

16. As can be seen from the facts as I have found them, this marriage has been fraught with difficulty. Possibly part of this has been due to the fact that Respondent has had two previous marriages and that there was a considerable age difference between the parties, the Respondent being some 19 years older than the Petitioner. Of course there is the fact that this was a mixed marriage which in itself may have led to some tension. There is no doubt but that there were quarrels between the parties particularly early in the marriage when they went an "an around the world journey" with another couple. The Petitioner did not get on well with this couple nor did she get on well with another couple, where the husband was a colleague of Respondent. She may not have been sociable when placed in a western environment but these quarrels would not in my opinion have brought about any breakdown in the marriage without the sexual problem experienced by the parties.

17. I have no hesitation in determining that the wife has been deprived of the joys of motherhood by Respondent's unwillingness to have a child and further I am in no doubt that the wife has experienced considerable frustration by the husband's lack of sexual interest in her despite the tenderness shown by him to which I have earlier adverted, which was obviously reciprocated by her in their manner of sleeping and their manner of going out hand in hand and in her letters to him.

18. I turn to consider the legal aspects.

1. SUBJECTIVE OR OBJECTIVE APPROACH

19. I am indebted to Mr. Pilbrow for furnishing me with a relevant passage from Raydon and in particular a copy of the decision O'Neill v. O'Neill⁽¹⁾.

20. As Raydon puts it:

"The words 'reasonably be expected' prima facie suggest an objective test. Nevertheless, in considering what is reasonable, the Court (in accordance with its duty to inquire, so far as it reasonably can, into the facts alleged will have regard to the history of the marriage and to the individual spouses before it, and from this point of view will have regard to this petitioner and this respondent in assessing what is reasonable: allowance will be made for the sensitive as well as for the thick-skinned; or, as it used to be put in cruelty cases, the conduct must be jedged up to a point by reference to the victim's capacity for endurance and in assessing the reasonableness of the respondent's behaviour the Court would consider to what extent the respondent knew or ought reasonably to have known of that capacity."

O'Neill v. O'Neill is of interest and at page 292 Lord Justice Cairns L J says as follows:

'A judge does and must try to read the minds of the parties in order to evaluate their conduct. In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a prior assumptions we make about them the better.'   "

21. I have to take into account that it is this Petitioner and this Respondent with which I am concerned.

22. Of course the sole ground which the petition presented is "that the marriage has broken down irretrievably" and one has to determine what the position is when one party to a marriage earnestly, indeed desperately wishes to have a reconciliation. The position has been considered in Ash v. Ash ⁽²⁾ and I quote from the decision of Bagnall J. at page 585:

"In order, therefore, to answer the question whether the petitioner can or cannot reasonably be expected to live with the respondent, in my judgment, I have to consider not only the behaviour of the respondent as alleged and established in evidence, but the character, personality, disposition and behaviour of the petitioner. The general question may be expanded thus: can this petitioner, with his or her character and personality, with his or her faults and other attributes, good and bad, and having regard to his or her behaviour during the marriage, reasonably be expected to live with this respondent? It follows that if a respondent is seeking to resist a petition on the first ground on which the husband in this case relies, he must in his answer plead and in his evidence establish the characteristics, faults, attributes, personality and behaviour on the part of the petitioner on which he relies. Then, if I may give a few examples, it seems to me that a violent petitioner can reasonably be expected to live with a respondent similarly addicted; a taciturn and morose spouse can reasonably be expected to live with a taciturn and morose partnes; a flirtatious husband can reasonably be expected to hive with a wife who is equally susceptible to the attractions of the opposite sex; and if each is equally bad, at any rate in similar respects, each can reasonably be expected to live with the other."

And further at page 586:

"I turn therefore to the husband's second submission and ask myself the question: am I satisfied on all the evidence that the marriage has not broken down irretrievably? The husband says, and undoubtedly believes,  that what is involved is a temporary difficulty attributable partly to his health and partly to his unemployment, and that if the marriage has broken down, nevertheless it has not broken down irretrievably.  The wife is adamant that the marriage is at an end and states with force and conviction, both through her counsel and in the witness box, that there is no possibility of her contemplating living with the husband as his wife. As a matter of law, I do not think that this is sufficient, because if both parties are agreed that the marriage has not broken down irretrievably, then the question cannot arise for determination. The only circumstances in which the court will have to decide under s 2(3) of the 1969 Act whether the marriage has broken down irretrievably must be when one of the spouses is asserting the affirmative of that proposition and the other is asserting the negative. Simple assertion either way, it seems to me, cannot suffice. What I have to do is to examine the whole of the evidence placed before me, including and giving riot inconsiderable weight to the assertions of the parties, and make up my mind, quite generally, whether it can be said that in spite of the behaviour of the husband, and the reaction to that behaviour of the wife, the marriage has not broken down irretrievably. In my opinion, in performing that general exercise on a survey of the evidence, only a general answer is appropriate and no useful purpose would be served by seeking to place quantitative weight on one consideration or another."

And in Pheasant v. Pheasant reported in the same volume at page 587 a decision of Ormrod J. where he deals with the five fact situations from which a court may infer that a break down is irretrievable,

"Separation is, undoubtedly, the best evidence of break-down, and the passing of time the most reliable indication that it is irretrievable. Where these are absent other criteria have to be devised which should be as reliable as possible in the circumstances. In sub-para (a) the criterion is adultery coupled with the assertion that the petitioner finds it intolerable to live with the respondent. This provides a reasonably secure basis for the inference that the breakdown is irretrievable. Each of these four sub-paras establishes tests which are essentially objective in character although the element of intolerability in sub-para (a) is recognised to be inescapable subjective (Goodrich v. Goodrich). On the other hand a petitioner is unlikely to present or proceed with a petition under this sub-paragraph if, from his or her point of view, the matrimonial relation-ship has not come finally to an end. Sub-paragraph (b) is quite different. It obviously requires the court to make a value judgment about the behaviour of the res-pondent and its effect on the petitioner. The wording is ambiguous in several respects. It could be argued that 'expected' is used in an anticipatory sense, meaning that the court should consider the conduct of the respondent and decide whether there is a reasonable prospect of the petitioner continuing to live with or return to the respondent. This construction would be consistent with the emphasis in the Act on irretrievability but it would require the Court to make a decision at large about the future intentions and actions of the parties. It would also make the other four tests superfluous."   page 589

23. It is relevant that in this case the wife left the matrimonial home in July of 1982 and at the time the petition was heard had been living away from the home for some 14 months, accordingly the views of Ormrod J. as to separation being relevant, as far as proof is concerned assume more significance.

24. Again it is the attitude of the Petitioner at the time of hearing of the petition which is relevant not her attitude at the time of presentation of the petition.

25. I am also of the view that the nature or tenor of the Petitioner's evidence at the time of presentation of the petition is relevant, in determining whether the marriage has broken down irretrievably. In the instant case the Petitioner was prepared to give evidence exposing her husband's sexual inadequacy alleging that he was a man of violent temper who used obscene language and had assaulted her "once or twice each week". Although I have rejected most of this evidence believing, that restraint was the only force used by Respondent, nevertheless the fact that Petitioner was prepared to make such allegations albeit untrue, in my view amount to evidence which I can consider in determining whether the marriage has broken down irretrievably despite the husband's genuine desire to reconcile.

26. I am conscious of the fact that the Legislature has not favoured unilateral divorce, the nearest approach has been consent after two years' separation, and it no doubt could be argued that in holding as I do, I am bringing unilateral divorce one step closer. Nevertheless I believe I do so on well founded authority and I have no hesitation in this case in determining that the wife has proven to me beyond reasonable doubt, (if need be) but undoubtedly on the balance of probabilities that the marriage has irretrievably broken down.

BEHAVIOUR

27. I turn now to the question of a "fact", which must be proven by the wife, namely "that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent."

28. The test to be applied is as Ormrod J. pointed out in Pheasant v. Pheasant is similar to that applied in constructive desertion:

".....the test to be applied..... is closely similar to, but not necessarily identical with, that which was formerly used in relation to constructive desertion. I would not wish to see carried over into the new law all the technicalities which accumulated round the idea of constructive desertion but rather to use the broader approach indicated by Pearce, J., in Lissack v. Lissack and consider whether it is reasonable to expect this petitioner to put up with the behaviour of this respondent, bearing in mind the characters and difficulties of each of them, trying to be fair to both of them, and expecting neither heroic virtue nor selfless abnegation from either."

29. I turn now to consider the decision in Williams v. Williams⁽³⁾, a decision of the House of Lords. An important issue in this case (a petition on the basis of the ground of cruelty) was that the trial judge had found that the husband knew what he was doing, i.e. the acts complained of, but that he did not know that they were wrong:

"The fact that the husband did not know that his acts were wrong did not of itself constitute the defence to a suit for divorce on the ground of cruelty and accordingly the appeal should be allowed."

30. I turn now to consider the authorities, such as they were, relating to the former ground of cruelty and of constructive desertion and will go on to determine how they are relevant to the instant case.

31. In Shelldon⁽⁴⁾ it was said by Lord Denning at page 259:

"... it has been laid doom that in cruelty it is not necessary to show an intention to injure or inflict misery nor is it necessary to show a guilty' mind. One essential element is injury or apprehended injury to health."

and His Lordship went on at page 260 to state:

"Since 1966 the cases stand in this way. Two wives have been found guilty of cruelty in refusing sexual intercourse. Thus when a wife persistently refused her husband completion of the act of sexual intercourse, she was held guilty of cruelty, even though it was, in a sense, not her fault but was due to a deep-rooted fear of bearing a ch ld. Making all allowances for her psychological infirmity, it was still cruelty; see P.(D.) v. p. (J.). Also where a wife persistently refused her husband sexual intercourse, quite inexcusably, she was held guilty of cruelty; see Evans v. Evans. Two husbands, however, have been held not guilty of cruelty. Where a husband aged thirty-five with a young wife, after the first year, refused altogether for fifteen years became of an inmate disinclination for sexual intercourse, he was held not guilty of cruelty; see P. v. P. Again, where a young husband aged twenty-seven was very undersexed and completely disinclined for sexual intercourse with his young wife, save at rare intervals; see B. (L.) v. B. (R.). Those were cases where, on making just allowances, the man was to be excused. The wife had to put up with it."

32. His Lordship did refer to P.(D.) v. P. (J.) ⁽⁵⁾ and I think a brief resume of the fact of that case are of interest in considering the present case. This was a petition by a husband on the ground of alleged desertion coupled with further ground of cruelty against his wife founded on her sexual behaviour towards him, being

"Shortly, her unwillingness and refusal to submit to ordinary intercourse with him thereby frustrating him and her refusal to consider having a family and to conceive for that purpose."

Dealing with the facts, His Lordship believed the husband when he said:

"The husband went to tell me that from November 1953 onwards they had intercourse only once every three months."

And later at page 459, Line C:

"Nevertheless, it does not shake my own conviction that by and large the husband is rightly describing a married existence in which there was a minimum of intercourse and a minimum of intercourse because the wife did not want it, not because he did not."

In this case, coitus interruptus was also practised, and at page 461 His Lordship said:

'I agree with all that my lord has said. Where one party takes contra-ceptive measures, or insists on them, against the will of the other, that is not itself cruelty. It only becomes cruelty when there is no reasonable excuse for it, and it is done out of a desire to inflict misery on the other. It is one of the cases where the intention of the party is of decisive import-ance. It is only cruelty when it is done, not out of selfishness, but out of ill-will. And it is on this question of intention that the difference between a man and a woman comes in. If a man takes contraceptive measures against the will of his wife, whether by means of an appliance or by withdrawal before completion, so as to prevent her having any children, without reasonable excuse for so doing, then it is easy to infer that he does it with intent to inflict misery on her; see White v. White, Walsham v. Walsham and Cackett v. Cackett, in each of which a wife's evidence was corroborated by a doctor. But when a wife herself takes contraceptive measures of asks her husband to take them her conduct can often be attributed to fear of the consequences to herself, without any intention of injuring him. She fears the pains and risk of child-birth. This is very unnatural and unfortunate, but it is not cruelty unless she has also and intention to inflict money on her husband......

Gollins v. Gollins decided that the "aimed at" test was no longer a valid one, although deliberation might well add to the gravity of the conduct: however, I think that Williams v. Williams is even more relevant to the present point. From that case, I wish to cite certain passages in the speech of Lord Reid. Lord Reid says this:

'     Then we come to the really difficult cases if blameworthiness is to be a test.  There are many cases of husbands and wives not insane but either sick in mind or body or so stupid, selfish or spoilt that they plainly do not appreciate or foresee the harm which they are doing to the other spouse, and perhaps they are now so self-centred that nothing would ever get the truth into their heads. Certainly allowances have to be made, particularly when their condition is due to misfortune. But I suppose that no one would now maintain that cruelty cannot be proved against such a person if his acts are sufficiently grave and really imperil the other spouse.  It is often untrue that such a man is able to exert his reason so as to control his acts in the normal way or even that he is capable of forming a rational decision about them.'

33. Stirling, J. made it quite clear at page 463 that a spouse inhibited by a physical impediment known to the other spouse

"...and who made every effort to cooperate could scarcely be said to be cruel, even though in the end it had a disastrous effect of the health of the other spouse. It might be said, well, what is the difference between physical impediment and a mental impediment which the wife cannot control any more than she can control a physical malformation?" I think that there is a difference, however, which Kneed not elaborate. In my judg-ment, that is just the sort of case in which if I am satisfied ( and I am ) that this wife was consistently depriving her husband of the amount of intercourse which she ought really to have been affording, and depriving him of the opportunity of becoming a father, which she knew that he wanted, and that these matters seriously affected his health, as I am satisfied that they did, then the proper approach is that if such conduct becomes unendurable in the sense that, in the opinion of the court the husband should not be called on to endure it, the court can and should help him. In that sense I consider that the wife's conduce was 'unendurable'."

34. In the instant case there is no medical evidence and no convincing evidence from the wife that the deprivation of sexual inter-course and being deprived of becoming a mother seriously affected her health.

35. I draw a distinction between man and woman. In normal circumstances, a man can sire a child at an age far greater than that which in normal circumstances a wife can normally bear a child. From the authorities which I have perused, the question of health is coupled with deprivation of intercourse and in the decision I have just referred to, a husband being deprived of becoming a father. In the instant case, we have a personable petitioner suffering from lack of sexual intercourse. I am no doubt that she felt this to be hurtful even although there were many aspects of the marriage which I believe to be satisfactory, tenderness, and, togetherness, other than sexual. But to me the overwhelming factor to be considered is the opportunity to become a mother when she wants to become one. At age of 36, this desire must increase and increase further in years to come if she is not satisfied. Because of his "hang-ups" he did not satisfy her. He acknowledged in evidence that with "hind-sight" he should have taken help sooner then he did, (the help that he referred to was writing to the Petitioner's brother, a medical practitioner practising in Australia). He received a reply and sought to put this in evidence. It was hearsay and objection was properly taken to this. Possibly notice should have been given under the Hearsay Rules before hearing.

36. The Petitioner and the Respondent may have been able to make a success of their marriage had Respondent acknowledged his failings not only to himself, but to persons professionally competent to help him with his own problems and also his wife in understanding his problems. He did not avail himself of any opportunity, but let matters stand, and in doing so, albeit by omission there is an element approaching wilfulness. In any event I hold that the fact of "behaviour" is a lesser degree than the cruelty cases dealt with in earlier legislation.

37. The matter is not free from difficulty but in the case of a woman, genuinely wanting children, subjected to the behaviour that the Respondent subjected he to in this case, I believe that Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent. I take into account, as I did in determining whether the marriage had irretrievably broken down, the Respondent's period of absence from the matrimonial home and the fact that she was prepared to make the allegations she did.

(1)     There shall be a decree nisi to be made absolute in 6 weeks.

(2)     I also declare that are no children of the family to whom Section 18 of Cap. 192 applies.

(3)     Ancilliary matters to be adjourned to Chambers.

(4)     Costs to be reserved to be dealt with in Chambers upon determination of ancilliary matters.

(1)    1975 3 A. E. R. page 289

(2)    1972 1 A. E. R. page 582

(3)    1963 2 A. E. R.

(4)    1966 2 A. E. R. at 257 C.A.

(5)    1965 2 A. E. R. page 456

Representation:

Mr Pilbrow of Melen A. LO & Cc for Petitioner

Mr Chan of Chan & Lo for Respondent