MACAULEY AND MACAULEY (032)  SLSC 2 (21 January 1952);
SuPREME CouRT (Smith, C.J.): January 21st, 1952 (Divorce Case No. 3/51) [I] Family Law-divorce-desertion-constructive desertion-conduct justifying other spouse's leaving amounts to constructive desertionoffer of reconciliation makes other party deserter only if genuine, reasonable and unaccepted: Where the conduct of one spouse is such as to justify the other spouse's leaving the matrimonial home, it is the former and not the latter who is deemed to be in desertion; and an offer of reconciliation on the part of the spouse in desertion will only be effective to turn the other spouse into the deserter if it is genuine, reasonable and not accepted (page 164, lines 35-40). The petitioner sought a decree of divorce from the respondent on the grounds of his cruelty and desertion. The petitioner alleged that the respondent had habitually used coarse and violent language towards her for some six years before their separation, and that he had failed to give her adequate financial support. The petitioner finally left the matrimonial home following a violent quarrel between them when it was alleged that the respondent had struck the petitioner and someone who had tried to intervene. The parties had remained apart ever since despite various attempts to reconcile them. The respondent denied all the petitioner's allegations, and although he admitted quarrelling with her, he denied that they came to blows. He maintained that he was always willing and anxious to have his wife back, but that she had refused all attemptsat a reconciliation. He also claimed to have sent her money which she had refused. Miss Wright for the petitioner; Zizer for the respondent. 5 BEOKU-BETTS, J., delivering the judgment of SMITH, C.J.: This is a petition by a wife for divorce on the grounds of cruelty and desertion. In the petition she alleged that during the years 1936-1942 the respondent habitually used coarse, violent and 10 threatening language towards her, and that on March 2nd, 1943 the respondent left her and has lived separate and apart from her ever since, and that he deserted her without reasonable excuse. The respondent answered, denying the charge of using bad language, and alleged that it was the petitioner who deserted him 15 on August 3rd, 1943 and has since refused to return to him in spite of the intervention of my predecessor, Sir George Graham Paul, the manager of the United Africa Company, and the respondent's providing a new home at No. 12 Kissy Road in which they might make a fresh start together. 20 The petitioner in her evidence complained that ever since they were married the respondent did not support her properly and did not pay the rent regularly so that they were forced to move from one house to another until her family provided them with a home at No. 12 Regent Road. One night in March 1943 they both went 25 to a dance where her husband proceeded to get drunk. They quarrelled outside the dance-hall and she went on home ahead of him. Her husband followed shortly after, renewed the quarrel and they came to blows. Her aunt, who was living with them, and a Mr. Campbell intervened and the husband beat the aunt 30 as well and said he was leaving the house. It was she, however, who left and they have never lived together again. Since their separation, efforts have been made by Sir George Graham Paul, the manager of the United Africa Company, and various friends and relatives to bring about a reconciliation, and they 35 have had a number of private meetings with this object, but her husband has persistently refused to provide properly for her or to mend his ways or to agree to have her back. In support of her story the petitioner called her aunt, who corroborated her story of the quarrel and fight at No. 12 Regent 40 Road, and Mr. Terry, who gave his version of what happened on the way home from the dance-hall and of efforts made by him to effect a reconciliation between them. The respondent denied that while they were living together he did not support her as his means permitted. He admitted the 5 quarrel at the dance-hall, but claimed it was because he disapproved of his wife accepting a drink from another man. He said his wife went home ahead of him, and denied seeing Mr. Terry on the way. He agreed that the quarrel continued after he reached home, but denied that they came to blows or that he fought with the peti10 tioner' s aunt. According to him his wife did not leave that night but next morning. He agreed about the intervention of Sir George Graham Paul, but maintained that it was his wife's fault that it came to nothing and said she then went off to Bonthe and did not return until she came back for a relative's funeral. He stayed on 15 at No. 12 Regent Road until August 1943 when he moved to a house belonging to his family at Kissy Road. He maintained that he has always been willing and anxious to have his wife back, but she has been adamant in her refusal to live with him. He led evidence of two occasions on which he sent money to her but she refused it. 20 It is obvious that this has not been a happy marriage. The parties had a child before marrying and only got married a short time before the second baby was born. The general impression I got from the attitude of both of them is that neither was prepared to make those adjustments in their 25 way of living that every happily married couple has to make. The wife is intelligent, able to earn her own living and not of a forgiving nature. The husband, notwithstanding his protests to the contrary, struck one as selfish and not prepared to put himself out to please his wife and go some way towards meeting her wishes. 30 For the past six years or more neither side has made any move towards reconciliation. According to one witness the wife said she left her husband because of accumulated dissatisfaction. I am satisfied that the quarrel after the dance did lead to blows and violence, which brought the accumulated dissatisfaction of the wife 35 to a head, and I consider that she was justified in leaving him. The fact that it was she who left the home and not the husband makes him no less a deserter if his conduct justified her departure. I am not satisfied that the efforts which the husband made were really whole-hearted or were such as to make the wife and not the 40 husband the deserter. I find that the petitioner has proved her case and is entitledto a decree ms1 to be made absolute in three months. She will have the custody of the children and the costs of the petition.
[I] Family Law-divorce-desertion-constructive desertion-conduct justifying other spouse's leaving amounts to constructive desertionoffer of reconciliation makes other party deserter only if genuine, reasonable and unaccepted: Where the conduct of one spouse is such as to justify the other spouse's leaving the matrimonial home, it is the former and not the latter who is deemed to be in desertion; and an offer of reconciliation on the part of the spouse in desertion will only be effective to turn the other spouse into the deserter if it is genuine, reasonable and not accepted (page 164, lines 35-40).