ANNE SUSAN DEWAR v PETER ALEXANDER DEWAR (1971) Z.R. 38 (H.C.

HIGH COURT
BARON, J.
31ST JULY, 1971
(1971/HPD/22)

Fly note
As
Family law - Divorce - Divorce Reform Act, 1969, ss. 1, 2 (1) (b) and 2 (3) -
Requirements for dissolution of marriage.
Family law - Divorce - Irretrievable breakdown - Unreasonable behaviour - Onus.
Family law - Divorce - Unreasonable behaviour - Objective test.

Headnote

The petitioner, who had been married to the respondent for about eleven years,
applied for dissolution of her marriage, custody of two minor children of the marriage,
and maintenance for herself and the children on the ground that the marriage had
broken down irretrievably and that the respondent had behaved in such a way that
she could not reasonably be expected to live with him. The respondent cross-
petitioned although not domiciled in Zambia and withdrew the cross-petition at the
hearing.

Held:
(i) Under ss. 1 and 2 (1) of the Divorce Reform Act 1969 there are two separate
requirements before ordering a dissolution of marriage -
(a) The irretrievable breakdown of the marriage; and
(b) The existence of one or more of the facts (a) to (e) in s. 2 (1).

Thus, even if, as a matter of common sense and reality, the court is satisfied that a
marriage has broken down irretrievably, it is not permissible so to hold as a matter of
law unless one or more of the five requirements is present, the onus in this latter
regard being on the petitioner; equally, even if one of these five requirements is
present, the court is not permitted to grant a decree nisi if it is satisfied that the
marriage has not broken down irretrievably, the onus here being on the respondent.

(ii) In a petition alleging unreasonable behaviour the test is objective having

regard to the characters and personalities of the parties, and the whole background
and history of the marriage must be considered.

Cases cited:

(1) Gollins v Gollins [1964] A.C. 644.

(2) Re. C. (A) (an infant), C. v C. [1970] 1 All E.R. 309.

Legislation referred to:

Divorce Reform Act, 1969, ss. 1, 2 (1) (b), 2 (3).

For the petitioner: J.A. Hadden, Ellis & Co.

For the respondent: A.W.W. Cobbett - Tribe, Cobbett - Tribe & Co.

Judgment

BARON, J.: The petitioner, Mrs Anne Susan Dewar, prays for the dissolution of her
marriage to the respondent, custody of the two minor children of the marriage, and
maintenance for herself and the children; she alleges that the marriage has broken
down irretrievably and that the respondent has behaved in such a way that she
cannot reasonably be expected to live with him.

The parties were married on the 1st August, 1960, in Scotland. Prior to the marriage
the husband (who, like the wife, was born and brought up in Scotland) had spent a
year in India, returning some time in 1960. In August, 1960, the couple went to
Rhodesia and lived in the Eastern Districts, where the husband was employed on a
tea estate about thirty-five miles from Chipinga. The first child, John Bruce, was born
on the 2nd September, 1963, and the second, Alison Fiona, on the 29th November,
1964. In 1965 the family went to Scotland on leave, and again in 1967. After this
latter vacation the wife wished to remain in Scotland; the husband came back to
Africa and finally persuaded the wife to join him. After seeking a post in Malawi he
found one in South Africa; they later moved on to Swaziland, and finally came to
Zambia in April 1968, where the husband was first employed at Mulobezi Saw mills
near Livingstone, then at the Nakambala Sugar Estates at Mazabuka and from
October, 1969, by the Lusaka City Council.

In both the wife's petition and the husband's answer and cross-petition various
unpleasant allegations are made. At the hearing the cross-petition was withdrawn
because, as was acknowledged by Mr Cobbett - Tribe, the husband is not domiciled
in Zambia; this court has jurisdiction to hear only the wife's petition, on the basis of
her residence in the country for three years next preceding the commencement of
the proceedings.

I do not propose to deal with the allegations of the parties in any great detail save for
the events immediately preceding the commencement of the action. The wife
complains of her husband's conduct and attitude towards her; she makes allegations
of sexual perversion and abnormality; and she complains that he humiliates and
abuses her. The husband complains that his wife is preoccupied with sex, is
promiscuous, and behaves provocatively in male company. I have no doubt that both
parties have been guilty of serious exaggeration and - to put it at its lowest - have
been less than frank with the court. Equally, I have no doubt that there is a
subastratum of truth in the allegations of both parties. I do not, however, propose to
consider these matters in greater detail because, although they are important as part
of the background of the marriage and as indications of the feelings and attitudes of
the parties towards each other, they are clearly not the reason why the wife alleges
that she cannot reasonably be expected to continue to live with the husband.

The petitioner prays for dissolution in terms of ss. 1 and 2 (1) (b) of the Divorce
Reform Act, 1969. The effect of these provisions, read together with s. 2 (3), is that
there are two separate requirements: first, the irretrievable breakdown of the
marriage, and second, the existence of one or more of the facts (a) to (e) in s. 2 (1).
Thus, even if as a matter of common sense and reality the court is satisfied that a
marriage has broken down irretrievably, it is not permissible so to hold as a matter of
law unless one or more of the five requirements is present, the onus in this matter
regard being on the petitioner; equally, even if one of these five requirements is
present, the court is not permitted to grant a decree nisi if it is not satisfied that the
marriage has not broken down irretrievably, the onus here being on the respondent
(see s. 2 (3)).

I am in no doubt that this marriage has broken down irretrievably; the evidence of
both parties is overwhelming in this regard. In particular, I do not believe the
husband when he says that he sold the major items of furniture, took the proceeds of
sale and virtually his total balance at his bank, and took John Bruce with him to
Rhodesia, for the purposes of effecting a reconciliation. This is inconsistent with his
own statement in evidence that he knew the marriage was at an end. He suggests
that when he got to Rhodesia he realised he had made a mistake and came back of
his own accord, but it transpired that he returned only after telephoning his legal
adviser on the afternoon of the day following his arrival in Karoi. In any event, the
evidence of the wife makes it clear - and she expressed herself in similar vein to Mrs
Mataka, the Juveniles Inspector - that she is not now prepared to return to her
husband, and this in itself means that the marriage has broken down (Lord Reid:
H.L. Vol. 303, Cl. 1318). The question is, therefore, whether the requirements of s. 2
(1) (b) are satisfied; if so, the wife is entitled to a decree.

It emerged from the evidence of both parties that the wife was anxious that the family
return to Scotland permanently; the husband, on the other hand, wished to remain in
Africa - if possible in Zambia.

Early this year the wife planned to go overseas for a holiday and as a break for the
children, both of whom had been very ill with bilharzia; she intended also to take
Alison to a paediatrician in Britain for a further opinion on a urinary complaint from
which the child had been suffering since 1968. Both children were entered in the
passports of both parents. On 5th April the husband, without telling the wife, took her
passport and had John Bruce's name removed; she said he had previously agreed to
her taking the children to Scotland on holiday, and had been discussing it as recently
as a week before she discovered, on the 17th April, that the boy's name had been
removed. (Although the husband denied that he had agreed to the boy going, this
evidence of the wife was not challenged in cross-examination.) The husband had
said nothing about having done this, in spite of the fact that he knew his wife was
bound to find out. When she taxed him he said he had done this because he thought
she would not come back from Scotland, she appealed to him to reconsider, but he
was adamant.

It is worthy of note that although the husband in evidence said that he removed the
boy's name from his wife's passport, and later took him to Rhodesia, because he
thought his wife would not return, she was not asked whether she intended to stay in
Scotland; nor did the husband say that she had ever expressed the intention not to
return. Again, the husband said that he took the boy to Rhodesia after he had
overheard a telephone conversation between the wife and her brother in Edinburgh,
but she was never asked about such a conversation.

On the 3rd June, 1971, the family left their home in the ordinary way; the children
were dropped at school and the wife was dropped at her place of work. The husband
then put into operation the plan he had made a week earlier, when he applied for
leave; he sold the refrigerator, a tape recorder and a record player, realising about
K500, and drew K400 from his bank account; he left a note for his wife, saying he
would telephone her in the evening, and cheque for K50. He went to the children's
school, picked up John Bruce, and drove straight down to Chirundu and crossed into
Rhodesia; he took with him his personal clothes and the family dog. He says he left
items of furniture, but it emerges that he left only minor items such as occasional
tables and covers.

The husband said that he went to Rhodesia with John Bruce in order to try to effect a
reconciliation with his wife. In the next breath he said he left with the boy because he
overheard a telephone conversation between his wife and her brother in which his
wife said she was going to sign papers for custody, and he decided to put John
Bruce out of her reach. He said also that he hoped his wife would follow him on
Saturday the 5th June and that he arranged with a friend, James Watson, to bring
her as soon as possible; but it is significant that he did not telephone his wife, and
even more significant that Mr Watson said in evidence that he told the wife that her
husband had taken John Bruce to Kafue. And Mr Watson’s version of the
arrangement to bring the wife to Rhodesia was that he was asked to bring her if she
wanted to go.

I found the husband's evidence on this whole sequence of events quite

unacceptable; and Mr Watson (a large portion of whose evidence is admissible only
on the issue of the husband's credibility) does not assist him. I am satisfied that the
husband realised his major saleable assets and left Zambia in order, as he put it
himself, to place John Bruce beyond his wife's reach; I do not accept that it was his
intention to persuade his wife to join him, nor that he intended the trip to Rhodesia to
be simply a short holiday (the sale of, in particular, the refrigerator is hardly
consistent with such an intention).

The wife says that it was the removal of John Bruce's name from her passport which
precipitated these proceedings; it was after that action by her husband that she took
legal advice, and after he took the boy to Rhodesia in June that she actually started
the proceedings. The question for determination is whether this conduct by the
husband is such that the wife cannot reasonably be expected to live with him. The
test is objective, having regard to the characters and personalities of the parties; and
the whole background and history of the marriage must be considered. It is also
instructive to note the definition of cruelty by Lord Pearce in Gollins v Gollins (1) at p.
695:

"Whether the cumulative conduct was sufficiently weighty to say that from a
reasonable person's point of view after a consideration of any excuse which the
respondent might have in the circumstances, the conduct is such that this petitioner
ought not to be called on to endure it."

(I stress that for the provisions of s. 2 (1) (b) to be met the conduct need not be as
serious as would have amounted to cruelty under the pre-1971 law. )

The history and background of this marriage show that the parties have reached a
point of complete lack of trust and active antagonism; as the husband said in
evidence, he knew there was no purpose in trying to discuss anything with his wife.
Finally the wife finds, one lunch time, that the husband has, without any warning,
taken one of the children and left; she then finds that he has sold the most valuable
items of furniture and that he actually left the country while his friend pretended that
he had simply gone to Kafue. Can the wife reasonably be expected to live with the
husband after this? I think not. When spouses have reached the stage in their
relationship that these parties have reached, inevitably the children will suffer; but I
find it indefensible to use the children as ammunition in the parents' war, or to regard
them as spoils of that war. Nor is it defensible, because of an admittedly genuine
affection for, and desire to keep, a child, to behave in relation to him, and to use him,
in a way which can only undermine the stability and security of his life.

The wife is clearly a strong character, but I do not think anyone can be expected to
live on a volcano. The husband has shown himself to be capable of thoroughly
irresponsible and immature conduct of a very grave nature towards his family; in
view of the complete breakdown of trust and communication, and the very obvious
hostility between the parties, it would be a bold man who could say that the wife
would not, at some time in the future, come home from work and find once again that
her husband had left with John Bruce. On all the evidence before me I am in no
doubt that this must be regarded as, to put it at its lowest, a real possibility.

In my judgment the wife has discharged the onus of showing that the husband has
behaved in such a way that she cannot reasonably be expected to live with him.

On the question of custody, the interests of the children are, of course, paramount. I
have had the benefit of a report by Mrs Mataka, a Juveniles Inspector, and I have
spoken with the children individually in chambers. John Bruce was clearly attached
to his father; he was also obviously fond of his mother. As to his sister, he
complained that she broke his toys, but this was more the condescending, indulgent
comment of a big brother than anything else; he seemed fond of his sister and
enjoyed seeing her at school. Alison obviously missed her brother and looked
forward to seeing him at school. My own observation thus entirely confirms Mrs
Mataka's recommendation that the children be kept together; the benefit to both the
children of growing up together is so obvious that it does not require to be spelt out,
particularly in the case of a brother and sister where the brother is the elder by fifteen
months. And the husband in evidence acknowledged that he would like to see the
children together. I am satisfied that it would be quite wrong to attempt to alleviate
the hurt to one or other of the parents by splitting up the children; I have to decide
which of the parents should, in the children's interests, have the custody of both of
them.

Financially, both parties are able to provide good homes. Indeed, although final
figures are not yet available, the wife's share of the estate of her deceased parents
may enable her to support herself and the children without working; certainly she
expects to need to work no more than part time. She intends to return to Edinburgh,
where she will live near her brother, a lawyer, and his wife.

The husband proposes to remain in Zambia. At the time of the hearing his sister,
whose husband is in the merchant navy, was staying with him and helping to look
after John Bruce, but she could stay only for a few months; he proposed that his
widowed mother, aged 63, should come and look after the children.

Mr Cobbett - Tribe has very properly drawn my attention to Re. C. (A) (an Infant) C.
v C. (2). That case is not directly in point because there the custody of a boy of eight
was involved without the ancillary issue of a brother or sister, but certain parts of the
dicta are instructive. In particular, I cite two passages. Harman, L.J., said this at p.
311 f:

"[The learned judge] looked, as he should, at the whole background and

considered where had the infant better be - and that is really the only question that
the court has to ask. I do not at all agree with expressions of opinion which have
fallen, perhaps per in curiam from judges that a boy should, as a matter of principle,
be with his father - just as much as I disagree with the other 'principle', which has
altogether been abandoned, that a girl of under three should, as a matter of principle,
be with her mother. Other things being equal, these things may be so, but there is no
principle involved in either. They are merely considerations which may weigh with
the judge where the scales are nicely balanced."
Edmund Davies, L.J., at p. 313, said that he disagreed with the suggestion that there
was a principle that a boy of eight should, all things being equal, always be led in the
custody of his father, and continued:

"The decision must depend on who the father is, who the mother is, what they
are prepared to do, and all the circumstances of the case.... the age and sex of the
child are but part of the considerations to be borne in mind."

I must therefore consider, as part of my assessment of the kind of home, upbringing

and future that each parent proposes to provide for the children, the characters and
personalities of the parties. As I have already indicated, I found both of them guilty of
gross exaggeration and lack of frankness; I consider the allegations of both of them
to have a certain foundation. But when all that has been said, the wife displayed
certain qualities which are sorely lacking in the husband, and which are very
important for the children, namely stability and maturity. I am in no doubt that the
children's prospects are better in their mother's custody than their father's.

Mr Cobbett - Tribe submitted that, because of the wife's promiscuous tendencies, it

would be better for the children to be with the father. This submission is based on the
admitted adultery of the wife during the period March to August 1966, and on the
general allegations of provocativeness in the company of men, which were denied.
The husband did not, however contend that the wife is not a fit and proper person to
have the custody of to children, and I do not regard the adultery as ground for
depriving the child on of the positive advantages of being in their mother's custody.

There will be decree nisi with costs. Custody of the two children is awarded to the
petitioner; the respondent is to be afforded the fullest possible access to the children
on conditions to be agreed, with liberty to apply. Maintenance for the petitioner and
the children, to be fixed by the Registrar, will be paid by the respondent.

Order accordingly