P L D 1956 Privy Council 18 (PLP)

In the preset case the existence of conduct by the hus band being of sufficient gravity to constitute the necessary factum, the question is what he intended, or must be taken to have intended, while so conducting himself ? Did he intend to bring the matrimonial relations to an end ? Let it be supposed that a husband intentionally persists in conduct which the hypothetical reasonable man would think calculated to cause the wife to leave him, is he necessarily guilty of constructive desertion, notwithstanding that he genuinely desires the marriage to survive ? If so evidence of his consistently expressed desire that the wife should stay with him is irrelevant and inadmissible. The formula, if satisfied, creates an irrebutabre presumption. In other ' words if a man deliberately makes his wife's life unbearable according to an objective standard, i.e., the reason able man's reactions, is he conclusively presumed to intend to drive her out:--the presumption that a man intends the natural and probable consequences of his acts being treated as irrebuttabie ? This view has been in the ascendant in the leading decisions of the High Court of Australia, though of late traces of a recession from it have been discernible. In England this view finds expression in Sickert v. Sickerl ((1899) 278), Edwards v. Edwards ((1948) 268), and generally in the cases where a husband has installed in the matrimonial home, or refused to expel' from it, or to dismiss from his service a mistress examples of which may be found in Dickenson v. Dickensan ((1890) 62 L T330) and Koch v. Koch ((1899) 221). The other view, which is embodied in the English decision in. Boyd v. Boyd (11938) 55 T L R 3) and is certain observations in Bartholomew v. Bartholomew ((1952) 2 All. E R 1035, (1952) T L R 934), is that no matter hew reprehensible has been the husband's behaviour, if there is positive and credible evidence negativing any actual intention on his part to end the marriage, the law will not impute such an intention to him. In Australia on the other hand in moss v. Moss ((1912) 15 C L R 538), on appeal from New South Wales what has been referred to as the objective test of conduct amounting to constructive desertion was laid down in terms so designed as to make the deserter's actual intentions immaterial if the objective test were justified. If the course of conduct is sufficiently blameworthy and prolonged, the case decides that the law will impute to the guilty party an intention to bring the matrimonial union to an end, whatever his actual or professed desire. Overtures for a reconciliation, for instance, or a genuine de facto wish that the wife should stay, will in such a case be overridden by this imputation The gist of the case of Gaily v. Gaily ((1952) A L R 715) decided forty years later, is to affirm what has been called the objective test except where there has been express desertion, and is accurately summarised in the judgment of the Trial Judge Lowe in the following passage :- "This is a wife's petition to dissolve the marriage on the ground of her husband's desertion. In fact it was she who left the matrimonial home and therefore, the case is one of what has come to be known as constructive desertion. The term has been a good deal criticised, but for my part I must accept it that constructive desertion, if proved, is sufficient ground for the dissolution of the marriage. The matter has been very recently discussed in the High Court in the case of Baily v. Gaily. It is reported in (1952) A L R

715. That case makes it plain that the test which has to be applied in these cases is one either of actual intention by the husband to bring the matrimonial relation ship to an end or an intention on his part to persist in a course of conduct which any reasonable person would regard as calculated to bring about such a result. It is the second limb of that test which is relied upon' in this case, namely, that tae facts are such as to show an intention on the husband's part to persist in a course of conduct which any reasonable person would regard as calculated to bring about a rupture in the matrimonial relationship." Dearman v. Dearman ((1916) 21 C L R 264) also an appeal from New South Wales is in line with these decisions, foreshadowing the second limb of the rule laid down in Gaily v. Baily, Bail). v. Bail) ((1923) 33 C L R 317) in substance affirms the same view,; though it is a some what more complex decision, since it touches expressly on the problem created when there is a clash of intentions, or, if that be strictly impossible, a clash of intention with wish or desire, or aim. Their Lordships will have to return to these among other Australian authorities and to say something about cases decided in England. But before doing so, they think it proper to deal with the' judgment. 1t is unnecessary to analyse the evidence as the findings of fact are not in dispute. It has been noted that the petition was filed on the 29th October, 1951, and particulars were supplied on the 26th November, 1951. None of the particulars relate to a period earlier than the 11th August, 1948. Yet the whole case was conducted, as regards evidence arid argument, on the footing that the whole of the husband's behaviour from 1943 to 1948 was relevant. This seems to their Lordships an anomalous and regrettable state of affair. However, no objection was raised to tile excursion of the evidence for outside the limits covered by the pleadings, and the lesser evil is to treat the pleadings as amended so as to cover the additional matter. The judgment of the Supreme Court of Victoria (Lowe, J.) professes to be wholly based on the second limb of the formula in Bally v. Bally. Thus in the Record at line 5, p. 223, he says: "I have no doubt that the course of conduct which I have described indicates an intention to persist in a course of conduct which any reasonable person would regard as calculated to bring about a rupture of the matrimonial relation, and consequently I think that his conduct does amount to constructive desertion." It is inherent in the logic of this formula that if the reasonable man would regard the course, of conduct in which the husband intended to persist as calculated to bring the marriage to an end, it is not open to the alleged deserter to give evidence that that was the last thing he actually desired. Yet the logic is not quite rigidly observed for the learned Judge pays regard to the wife's warnings that she would leave the respondent if he persisted, a fact mainly relevant to his actual intention and he deals on p. 223 at some length as to the question whether the husband's appeals to the wife to return to him after the final separation were sincere or not. On appeal the High Court dealt somewhat briefly with the case partly because (as Sir Owen Dison, C. J. explained ire the later case of Deery v. Deery ((1954) Argus L R 269) the facts were so overwhelming. Sir Owen Dixon delivered the main judgment, Fullagar and Kitto, JJ. merely expressing agreement. The Chief Justice quoted the actual words on which in Bailv v. Gaily, the High Court had held the criterion to consist :-- "The cases seem to show that what must be proved is either an actual intention to bring about the rupture of the matrimonial relation, or an intention to persist in a course of conduct which any reasonable person would regard as calculated to bring about such a rupture." (1952 A L R 717). The Chief Justice like Lowe, J. found that the facts of the case brought it within the second limb of this formula ; lie met the argument that de facto the husband never desired his wife to leave him with the following quotation from Bain v Bain at p. 325 :- "A man may intend to retain his wife's presence, but also at the same time to pursue a certain line of conduct. If at all hazards he deliberately pursues that line of conduct, his intention to retain his wife's presence is conditional on or subservient to the other intention. If his conduct is such that his wife, as a natural or necessary consequence, is morally coerced into withdrawing, it cannot be said with any truth that the husband intends her to remain. He knows in that case that the result of his deliberate act will be and is his wife's withdrawal, and, therefore, in every real sense tie intends that withdrawal." He went on to point out that "on countless occasions lie must have been in the 'state of knowing that what he was doing would necessitate her withdrawal". No doubt the learned Chief' Justice lead in mind that she had again and again warned him that she would leave if he persisted, and had in fact twice actually left him. It will be observed that this judgment involves a slight recession from the severely objective rule which infers an intention to desert conclusively when certain conduct is established since clearly the Court thought a purely subjective factor 'the husband's de facto knowledge that she would leave, was relevant. There were already, their Lordship think, some signs of' vacillation between a purely objective and the admission of certain subjective elements in Bain v. Bain itself (p. 325 in C L R). In the English decisions there is discernible a similar dualism. The Courts which decided Boyd v. Boyd ((1938) 4 A E R 181) and Bartholomew v. Bartholomew certainly use language which suggest that if the respondent desires the partner to remain with him, then the petitioner cannot ever prove constructive desertion. In these cases the Court applied a subjective test viz., the husband's intention. If intention bears the same meaning as desire, this reasoning, when pressed to its logical conclusion., leads to the result that a husband who desires his wife to stay in the matrimonial home simply in order that he may ill-treat her or to make tier a tar-et for insult, cannot be guilty of constructive desertion. In Hosegood v. Hosegood (1950) 66 T L R (Pt. I) 738) Lord Justice Defining (who thinks Boyd v. Boyd was well decided and was a party to the Bartholomew decision) conveniently summarises the two rival strains of English authority in the following passage. He says :- "There are at present two schools of thought about constructive desertion. One school says that, in constructive desertion, as in actual desertion, a husband is not to be found guilty, however, had his conduct unless lie had in fact an intention to bring the married life to an end. This school admits that then are many case where he may be presumed to have that intention. For instance when a man deliberately m-ekes his wife's life unbearable, he may be presumed to intend to drive her out, because be may be presumed to intend the natural consequences of his acts. But this school says that if in troth the facts negative any intention to bring the married life to an end the Courts should trot attribute it to him. For instance, the conduct of an habitual criminal or an habitual drunkard may be so bad that his wife is forced to have him ; but hr may be devoted to her, and the last thing he may intend is that she should leave. In sue'; a case this school of thought would hold that then : is no desertion : Boyd v. Boyd. The other school of thought does lip service to the necessity for such an intention, but says that, even if the husband had no intention in fact to bring the married life to an end, yet he is conclusively presumed to intend the natural consequences of his acts : and if his conduct is so had or so unreasonable that his wife is forced to leave him he must be presumed to intend her to leave and he is guilty of constructive desertion, however much he may in fact desire her to remain : Sickert v. Sickert and Edivards v. Edivards. Buchler v. Buchler (63 T L R 100 ; (1947) 25) does not resolve the difference between these two schools of thought. In one passage Lord Greene, M. R. seems to favour the first school, for he cites Boyd v. Boyd with approval. In another passage, however, he seems to favour the second school, for he cites Sickert v. Sickert with equal approval." He continues :-- "To my mind the views of the first school are logically unanswerable. When people say that a roan must be taken to intend the natural consequences of his acts, they fall into error : there is no `must' about it ; it is only `may'. The presumption of intention is not a proposition of law but a proposition of ordinary good sense. It means this ; that, as a man is usually able to foresee what are the natural consequences of his acts, so it is, as a rule, reasonable to infer that he did foresee them and intend them. But, while that is an inference which may be drawn, it is rot one which must be drawn. If on all the facts of the case it is not the correct inference, then it should not be drawn." The conflict of opinion in the English cases appears again in Simpson v. Simpson ((1951) 320), where the view expressed in Edwards v. Edivards is repeated and in Pike v. Pike ((1954) 81 (n)), where the Court of Appeal re-affirmed the propositions expressed in Hosegood v. Hosegood. These four cases so completely review the divergence which exists in this country that it would in their Lordships' opinion serve no purpose to quote from or refer to the many decisions whether given under the present law or at a time when adultery by a husband was not of itself a grouted of divorce, but required the presence of some other factor, vie., cruelty or desertion. Nor at this stage is it necessary to consider the effect of those cases in which it is claimed that one who continues to live with a mistress has been held guilty of desertion even though he did not admit her to the matrimonial home but desired to retain the consortium of his wife. So far as the Australian cases are concerned there is not, as their Lordships apprehend, so marked a dichotomy but the distinction between the instances in which desertion has been held to have been established and those in which the facts have been held to afford in sufficient proof is a fine one. Apart from the cases already quoted the place at which the line is drawn is most clearly exhibited in the difference of result between that reached by the High Court in the present case and their decision in the later case of Derry v. Derry. In the latter case the High Court by a majority allowed an appeal by a wife against a finding that she had constructively deserted her husband on the ground that the incidents relied upon were due to the wife's permanent characteristics rather than to any design to drive the husband away : and therefore the evidence was insufficient to enable the Court to infer that the respondent had an actual intention to bring about a rupture of the matrimonial relationship or to persist in conduct calculated in the mind of any reasonable person to bring about such a rupture. "As I read the evidence" says Dixon, C. J. "the one thing which she never intended to do was to drive her husband away". Later he continues: "The question whether she intentionally persisted in a course of conduct which she knew was inconsistent with the continuance of the relation or which any reasonable person would regard as calculated to bring about a rupture of the matrimonial relation may perhaps be a more doubtful question. But I have reached the conclusion that a finding against her ought not to be sustained". Of the present case Dixon, C. J., who gave the leading judgment says: In Lang v. Lang ((1953) 86CLRA32;(1953)ALR211), where we thought it unnecessary to deliver a considered judgment because the facts appeared to be so overwhelming, we relied upon what we had said in Baily v. Baily but emphasised the difficulty of distinguishing between an intention to destroy the matrimonial re lationship and such an intention as the passage already quoted from the reasons of Irvine, C. J., in Bain v. Bain postulates. It amounts to an intention to persist in a course of conduct with knowledge that it is completely inconsistent with the maintenance of the matrimonial relation." In these two cases the results at which the High Court arrived were different but in each two grounds for inferring desertion were accepted via.., actual intention and intention inferred from conduct which any reasonable person would regard as calculated to bring the consortium to an end. In spite of some of the expressions used in the cases both in. England and in Australia it was not, as their Lordships understand, contended that certain types of action of necessity create an irrebuttable presumption that the party guilty of them must be held to intend to break up the marriage tie on the principle that a man must irrebuttably be held to intend the natural consequences of his acts. Indeed in Simpson v. Simpson the learned President (Lord Merriman) expressly says "I venture to suggest that in this jurisdiction, at any rate, we may continue to use the time honoured maxim" (i.e., a man must be taken to intend the natural consequences of tits acts) "provided always that we remember that it does not express' an irrebuttable presumption of law and that it is only to be applied in connexion with conduct which can fairly be des cribed as ill-treatment". Nor do those who hold the other view maintain that an intention deserendi may not legitimately be inferred from acts alone. In Hosegood v. Hosegood Denning L. J. accepted the position that there are many cases where the husband may be presumed to have had the intention to end the marriage. The difference between the two views is rather what meaning is to be attached to the word "intention" and what evidence is sufficient to rebut a prima facie case. Prima facie a man who treats his wife with gross brutality may be presumed to intend the consequences of his acts. Such an inference may indeed be rebutted but if the only evidence is of continuous cruelty and no rebutting evidence is given, the natural and almost inevitable inference is that the husband intended to drive out the wife. The Court is at least entitled and indeed driven to such an inference unless convincing evidence to the contrary is adduced. In their Lordships' opinion this is the proper approach to the problem and it must, therefore, be determined whether the natural inference has been rebutted in the present case. The fact that the question at issue involves a consider ation of the effect of the actions of one person upon another adds to the complexities of the case. But, apart from this, the distinction between intention and desire has to be borne in mind. A man may wish one thing and intend another : " Video meliora proboque, Deteriora sequor "-and indeed as the High Court have pointed out a man's intention does not necessarily always remain constant but flactuates from time to time. Nevertheless some general principle must be sought and adopted. But before the question of the rebutting evidence is reached it has first to be determined what is the exact connotation of the word "intention" as used in the relevant cases. In Bain v. Bain the High Court visualises the problem which may arise where the husband appears to be actuated by "intends," which conflict with, or contradict, each other. The answer given is in substance that such a conjucture the dominant intention must be ascertained and looked to. The passage from Bain v. Bain which is cited by the High Court in the present case has already been set out. Their Lordships are of opinion that this passage goes to the root of the matter. But they venture to question whether as a matter of strict terminology a man can be said to entertain conflicting "intentions". A man may well have incompatible desires. He may have an intention which conflicts with a desire ; i.e., he may will one thing, and wish another, as when he renounces some cherished article of diet in the interest of heath. But "intention" necessarily connotes an element of volition : desire does not. Desires and wishes can exist without any element contributed by the will. What then is the legal result where an intention to bring about a particular result (be it proved directly or by inference from conduct) co-exists with a desire that Mat result should not ensue ? That is the substantial point raised by this appeal. The issue may be put more concretely. What legal inference is to be drawn where the whole of a husband's conduct is such that a reasonable man would know-that the particular husband must know

that in all human probability it will result in the departure of the wife from the matrimonial home. Apart from rebutting evidence this in their Lordships' opinion is sufficient proof of an intention to disrupt the home: but suppose further a husband's hope is that in some way his actions will not produce these natural consequences, that the wife will stay and that the home will not be disrupted. Where a man's own actions are concerned and not their effect or another, the answer is easy. If he desires to resist temptation but yields to it his intention is evidenced by his acts. His better self is, it may be, over borne, yet in the end his intention is to yield. Where how ever the effect of his actions upon other people is concerned and there is no certainty but only a high degree of probability as to what the result will be, is a Court to say that if he did entertain an unjustified hope that his wife would stay, the intention normally to be inferred from his acts is rebutted and is the correct conclusion that he did not intend to drive her out ? In their Lordships' opinion no such conclusion is justified. If the husband knows the probable result of his acts and persists in them, in spite of warning that the wife will be compelled to leave the home, and indeed, as in the present case has expressed an intention of continuing his conduct an never indicated any intention of amendment, that is enough however, passionately, he may desire or request that she should remain. His intention is to act as he did, whatever the consequences, though he may hope and desire that they will t not produce their probable effect. To say that it is not enough unless he knows that separation must inevitably result from his actions is to ask too much. Men's actions and judgments are not founded upon certainty-in most cases certainty is unascertainable-but on probabilities. No doubt a high degree of probability is required but no more. With these considerations in mind, can it be said that the appellant has rebutted the natural inference, which would be drawn from his acts if no countervailing testimony was given. In their Lordships' opinion no sufficient ground has been given for rejecting the finding of the High Court. It is true that Lowe, J. founded his judgment upon the wording eased by the High Court in Baily v. Baily in which one of the tests is expressed to be an intention to persist in a course of conduct which any reasonable person would regard as calculated to bring the matrimonial relationship to an end and in their Lordships' view this is too objective a requirement. But the High Court took a more subjective standard H after examining the evidence as a whole. They found, and, as G their Lordships think, were entitled to find, that the appellant must have known that what he was doing would necessitate her withdrawal if she acted as any reasonable creature would. Such a finding, if warranted, is' in their Lordships' opinion decisive of the case and in spite of Lowe, J.'s reliance upon what may be regarded as a purely objective test there is in their view ample ground for corning to the conclusion that the appellant must have recognised the gravity of the effect of his behaviour though he hoped and desired that it might not have its natural result. The Australian Courts are ready to draw the inference of intention on evidence of the same nature as that adduced in the present case and have twice approved of its decision before it reached their Lordships' Board, once as already stated in Deery v. Deery and again in the High Court in Sharah v. Sharah which so far as, their Lordships are aware was not reported at the time of the hearing before them, but of which they were furnished a transcript. So far as England is concerned their Lordships' opinion is fortified by the cases which decide that constructive desertion is to be inferred where a husband retains a mistress in spite of the wife's protests even though the mistress was not brought into contact with the wife and the adulterous association took place away from the matrimonial home. So far as their Lordships are aware such actions have always been regarded as justifying the wife's withdrawal and a holding that she had been constructively deserted if she leaves the house. Farmer v. Farmer ((1884) 9 P D 245) Pizzala v. Pizzala ((1899) 68 L J P 91 n., (1896) 12 T L R 451), Gracia v. Gracia ((1888) 13 P D 216), Koch v. Koch ((1899) 221) and Sickert v. Sickert ((1899) 278), are examples of this outlook and (unless one takes the view of the minority in the Australian case of Donelly v. Donelly ((1939) 61 C W L R 577), support the view that, whatever the husband's desire may be, this behaviour of itself establishes an intention to break up the married life. Before they conclude their review one proposition pro pounded on behalf of the respondent should be mentioned viz., that the law permitting divorce for desertion first enacted in Victoria in 1890, has been re-enacted in 1916 and in 1928. and between the first and later dates the Courts of that State had interpreted the word " desertion " as bearing the objective meaning contended for by the respondent. Having regard to the opinion upon the main question it is unnecessary for their Lordships to express an opinion on this matter. As present advised they would only say they are not satisfied that the law as laid down before 1928, is sufficiently clear to warrant an assumption that an animus deserendi must always be inferred where the deserter's action warrants it, whatever his real intention may be shown to be. But for the reasons they have indicated their Lordships will humbly advise Her Majesty to dismiss the Appeal. The appellant must pay the respondent's costs as between solicitor and client of the appeal to their Lordships' Board. A. H. Appeal dismissed.