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Matrimonial Cruelty and Mens Rea
Published online by Cambridge University Press: 16 January 2009
Extract
“It seems to me…... that, as with a criminal offence, so in the case of cruelty there must be an element of mens rea.” Thus spoke Willmer L.J. in the recent case of Williams v. Williams, raising thereby a fundamental problem in the law of matrimonial cruelty, and providing incidentally an invitation to attempt an investigation of this difficult (and unsavoury) subject. It is proposed there-fore (I) to inquire in general what intention, if any, is needed in order to be cruel to one's spouse; (II) to ask in particular what is the relevance of mental disorder or illness suffered by an allegedly cruel spouse; and (III) to explore some lines along which this branch of the law might advantageously be reformed.
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- Copyright © Cambridge Law Journal and Contributors 1963
References
1 [1962] 3 W.L.R. 977 at p. 987.
2 The whole law of matrimonial cruelty received a searching analysis in an article by Sir Carleton Allen, Q.C. in (1957) 73 L.Q.R. 316 and 512. He described the mentai element of cruelty as “a realm of mystery” (p. 512). Assistance in the preparation of the present article has also been derived from the following valuable works: Bromley: Family Law; Rosen: Matrimonial Offences; Biggs: The Concept of Matrimonial Cruelty. The reader must now also be referred to an important article by Professor Goodhart on “Cruelty, Desertion and Insanity” (1963) 79 L.Q.R. 98.
3 s. 1 (1) (c).
4 Matrimonial Causes Act, 1857.
5 Matrimonial Proceedings (Magistrates' Courts) Act, 1960, s. 1 (1) (6) consolidating provisions of the Summary Jurisdiction (Married Women) Act, 1895, and subsequent legislation.
6 Rigby v. Rigby [1944] P. 33Google Scholar; cf. Grossi v. Grossi (1873) L.R. 3 P. & D. 118, 119.
7 Jamieson v. Jamieson [1952] A.C. 525 at pp. 543, 544.Google Scholar
8 This, it is hoped, provides a legitimate reason for a new article, despite the existence of the distinguished works referred to in note 2, ante.
9 Holden v. Holden (1810) 1 Hag.Con. 453 at p. 458.
10 (1870) L.R. 2 P.D. 59. This appears to be the first reported case where the conduct complained of consisted entirely of the kind conveniently known as mental cruelty.
11 p. 35. According to the medical evidence the wife was likely as a result to suffer “paralysis or even madness.”
12 p. 73.
13 It was settled in Russell v. Russell [1897] A.C. 395 that this must invariably be shown before cruelty can be established.
14 See for example Lang v. Lang [1955]Google Scholar A.C. 402 which was a decision on constructive desertion, though frequently cited in this connection.
15 “… the presumption that a person intends the natural consequences of his acts is one that may—not must—be drawn”: Kaslefsky v. Kaslefsky [1951] P. 38Google Scholar at p. 46, per Denning L.J.
16 Hadden v. Hadden, The Times, December 5, 1919.Google Scholar
17 [1949] P. 51.
18 pp. 60, 61. Hodson J. dissented.
19 [1952] A.C. 525.
20 p. 540.
21 p. 535.
22 p. 550. See also Cooper v. Cooper [1955] P. 99, especially at p. 125.Google Scholar
23 The significance of mental disorder is discussed below.
24 The most obvious and the most frequently relied on form of cruelty.
25 See Usmar v. Usmar [1949] P. 1Google Scholar; King v. King [1953]Google Scholar A.C. 124.
26 See Squire v. Squire [1949] P. 51.Google Scholar
27 [1951] P. 38.
28 pp. 45, 46. But C. K. Allen criticises the expression “aimed at” in 73 L.Q.R. at p. 527.
29 See Baker v. Baker [1955] 1 W.L.R. 1011Google Scholar; Parmenter v. Parmenter, The Times, October 13, 1962.Google Scholar
30 See Woollard v. Woollard [1955] P. 85Google Scholar; Cooper v. Cooper [1955] P. 99.Google Scholar
31 See Ingram v. Ingram [1956] P. 390.Google Scholar
32 p. 46. The Kaslefsky case concerned a wife with “sluttish” ways. The husband's cruelty petition failed, one conclusive reason being (as C. K. Allen points out) that the commissioner had found in effect that his health had not been injured.
33 [1956] P. 344.
34 p. 359.
35 [1962] 2 W.L.R. 1056 (C.A.).
36 Adultery was not alleged.
37 p. 1062.
38 [1962] 3 W.L.R. 1344 (C.A.).
39 p. 1355.
40 This appears from the judgment of Davies L.J. at p. 1358. although Harma n L.J. (who dissented) considered that “there was no direct evidence at all… he knew that his conduct might he injurious to her health” (p. 1355).
41 [1962] 3 W.L.R. 180.
42 p. 192.
43 p. 1358.
44 p. 1351. “In most cases,” he added, “… the question resolves itself in the end into one of fact.”
45 [1951] P. 38.
46 p. 1351.
47 p. 1352.
48 p. 1352.
49 It must of course be remembered that after the necessary mens rea has been established the vital question remains of whether in all the circumstances the respondent's conduct is sufficiently grave and weighty to amount to cruelty. The whole situation (including for example any provocation) must be considered: King v. King [1953]Google Scholar A.C. 124. The decision generally turns on the facts, and precedents are, therefore, as in negligence, of only limited value. Cf. Qualcast (Wolverhampton) Ltd. v. Haynes [1959]Google Scholar A.C. 743, referred to in Gollins v. Gollins [1962] 3 W.L.R. at p. 1350.Google Scholar
50 Homicide Act, 1957, s. 2 (1).
51 (1843) 10 Cl. & P. 200.
52 [1950] P. 39 at 52, 53.
53 [1955] P. 4.
54 Alway v. Alway [1961] 8 C.L. 494Google Scholar; The Times, August 1, 1961.
55 Although she did not intend to harm her husband, her acts were intentional and were likely to harm him.
56 See Hanbury v. Hanbury [1892] P. 222; White v. White [1950] P. 56Google Scholar, per Denning L.J.
57 [1951] P. 1.
58 He also found however on the facts that the respondent had failed to prove insanity.
59 [1953] P. 258.
60 p. 263. See also per Somervell L.J. at p. 270 and Jenkins L.J. at p. 271.
61 [1953] P. 270.
62 [1955] P. 4.
63 [1962] 3 W.L.R. 422.
64 The blows amounted to cruelty as they came “as a climax of a period of violent accusations and recriminations” (p. 428).
65 [1962] 3 W.L.R. 977.
66 Willmer L.J. did not explore the necessary mental element very fully, though he cited with approval the dicta of Shearman J. and of Lord Normand referred to earlier.
67 p. 987. For the same reason he considered that the authorities showing that the second limb of the Rules is no defence to a claim for damages for assault were not in point (p. 990).
68 p. 996. Davies L.J. drew an analogy with a surgeon, on the ground that the latter does not treat bis patient with cruelty because “he believes that what he is doing is right.” But surely a normal operation is not an act of cruelty at all, whereas false accusations can be.
69 p. 992.
70 p. 993.
71 p. 991. It should be mentioned however that in suggesting (at p. 993) that consciousness of wrongdoing would equally have to be imported into adultery, Donovan L.J. appears to have overlooked S. v. S. [1962] P. 133Google Scholar where the second limb of the M'Naghten Rules was in fact held to be a defence to a charge of adultery.
72 R. v. Windle [1952] 2 Q.B. 826.Google Scholar But cf. Stapleton v. R. [1952]Google Scholar Aust.L.R. 929.
73 See Sofaer v. Sofaer [1961] 1 W.L.R. 1173.Google Scholar
74 p. 994.
75 pp. 988, 989.
76 p. 997.
77 In the days of legislative divorce (1670–1857) a bill could only be promoted if adultery or an unnatural offence had been committed, and judicial divorce was correspondingly limited from 1857 until 1937, when a number of further grounds were introduced by the Matrimonial Causes Act, 1937.
78 This dilemma may even be likened to that which is currently the subject of strenuous debate in the law of tort: is the court primarily concerned, when considering remoteness of liability, to do justice to the plaintiff or to the defendant? See the valuable article by Mr. R. W. M. Dias [1962] C.L.J. 178.
79 Cmd. 9678.
80 Lord Walker.
81 Matrimonial Causes Act, 1950, s. 1 (1) (d) re-enacting s. 2 (d) of the Act of 1937.
82 Para. 176.
83 Para. 256. The Commission recognised that this recommendation involved some unfairness to the respondent but considered that “preference should be given to the interests of the injured spouse” (ibid.).
84 It might also be considered whether wilful refusal to consummate should not be transferred to this category. At present it is a ground for nullity, but as the Royal Commission point out, this “suggests some confusion of thought” as nullity should be confined to defects existing at the date of the marriage (para. 89). But there are certain difficulties in the Commission's recommendation that it should become a ground for divorce instead of nullity, and there would be advantages in placing it in the new category.