Gale v Gale [1952] HCA 59; (1952) 86 CLR 378 (3 November 1952)

HIGH COURT OF AUSTRALIA

GALE v. GALE [1952] HCA 59; (1952) 86 CLR 378

Matrimonial Causes

High Court of Australia
Dixon C.J.(1), Webb(1), and Kitto(1) JJ.

CATCHWORDS

Matrimonial Causes - Dissolution of Marriage - Adultery - Connivance - Acquiescence in continuance of adulterous relationship - Condonation - Matrimonial Causes Act 1929-1941 (S.A.) (No. 1946 of 1929 - No. 50 of 1941), s. 11 (a).

HEARING

Adelaide, 1952, September 22, 23.
Melbourne, 1952, November 3. 3:11:1952
APPEAL from the Supreme Court of South Australia.

DECISION

November 3.
THE COURT delivered the following written judgment: -
This appeal arises out of a husband's suit for dissolution of marriage on the ground of his wife's adultery. The suit was defended. Adultery was admitted, except as to one specific occasion alleged, but both the wife and the co-defendant set up connivance, conduct inducing or contributing to the adultery and condonation (ss. 11 and 12 of the Matrimonial Causes Act 1929-1941 (S.A.)). The wife on her part alleged adultery against the husband and by counterclaim sought a dissolution of marriage, but Ligertwood J. who heard the suit found that the adultery she alleged was not committed by her husband. On the other hand Ligertwood J. found in her favour on the plea of connivance and as an alternative found that in respect of part of the period during which the wife had committed adultery there had been connivance and, for the rest, conduct inducing, or contributing to, the adultery. Accordingly his Honour dismissed the suit. From that decision the husband appealed to the Full Court of the Supreme Court of South Australia. The appeal was allowed and the findings of connivance, or, alternatively, of connivance as to one period and conduct inducing or contributing to the adultery as to the other, were set aside. The cause was remitted to Ligertwood J. to consider and determine whether the husband had been guilty of unreasonable delay, and if so whether relief by way of divorce would be refused. After a further hearing Ligertwood J. made an order which, after reciting that he was satisfied that the wife had habitually committed adultery with the co-defendant at divers places from some time in the year 1941 until about April or May 1950, but that the husband had been guilty of unreasonable delay, dismissed the husband's claim for relief. From that order the present appeal is now brought. (at p380)

2. For the purpose of our decision very little need be said about the facts of the case, which are dealt with in detail in the reasons and further reasons for judgment given by Ligertwood J. It is enough to state a few particulars concerning the parties and the conclusions of fact upon which the appeal turns. (at p381)

3. The husband was born in South Australia on 19th December 1916 according to his evidence, but according to the certificate of marriage in or about the year 1914, and the wife was born in Victoria and is about a year younger. When she was eighteen years of age she had a female child by a man with whom she had associated. When she was twenty-one years of age she and the appellant, who had come to Victoria, began to live with one another as man and wife, but for some reason deferred the ceremony of marriage until they had two children. Then, on 17th June 1940, at Geelong they were married. Six months later they returned to South Australia and set up a house at Millicent. In March 1947 they moved to Naracoorte. They had two more children, a girl born on 8th December 1941 and a boy born on 19th May 1947. At Millicent the appellant became friends with the co-defendant Osmond, a saw miller by whom he was employed as a bench hand. Osmond visited his house and during part of 1942 and the greater part of 1943 boarded with him and his wife. Osmond, who was a divorced man, then remarried. He set up an establishment at Millicent but afterwards removed to Tarpeena. It is admitted that from some time in 1941 Osmond and the appellant's wife carried on an adulterous relation which continued until about April or May 1950. During those years they were guilty of habitual adultery. The appellant began the suit for dissolution of marriage on 29th August 1949. Up to a date shortly after 9th April 1949 the appellant and his wife lived together as man and wife and shared the same bed. A few days after 9th April 1949 he was informed by a friend that the latter had on that night caught the appellant's wife and Osmond committing adultery. Ligertwood J. believed that by this time the appellant had made up his mind to get rid of his wife. At all events he had consulted a solicitor on the question in February 1949. He taxed her with having committed adultery on 9th April. She denied it. He threatened a divorce. It is unnecessary for present purposes to go into the circumstances in which they parted or the subsequent occurrences. It is enough to say that we do not think that they add anything very material to the case against the appellant upon conduct inducing or contributing to the continuance of the adultery or to the case of connivance thereat and they do not appear to us to have any bearing upon the question of unreasonable delay. (at p381)

4. The question of connivance depended upon the appellant's state of knowledge concerning his wife's relations with Osmond between 1941 and April 1949 and the course he took with reference to those relations. (at p382)

5. An examination of the evidence has satisfied us that the findings made by Ligertwood J. on these matters go no further than, and perhaps not as far as, the evidence warrants. In effect his Honour found that, although at the beginning in 1941 and for sometime afterwards, the appellant had no knowledge or suspicion that a guilty relationship between his wife and Osmond was contemplated or had been established, nevertheless by the end of 1946 or the beginning of 1947 he had come to suspect that they were committing adultery, but for various reasons he preferred not to put his suspicions to the test. From March 1947 onward, however, knowledge took the place of suspicion. He acquiesced. His Honour states what his motives were, but whatever they may have been, we agree in the conclusion that he knowingly assented to and acquiesced in the continuance of the adulterous relation between his wife and Osmond. (at p382)

6. As we understand the reasons of Napier C.J. and Reed J. in the Full Court, they considered that this conclusion went too far in attributing actual knowledge to the appellant. But their Honours say that the finding in respect of this period that the appellant wilfully acquiesced in the continuance of his wife's adultery may be discussed on the footing that it involves a finding that he acted during that period with a corrupt intention, that is to say, the intention of encouraging the continuance of the adultery. Their Honours then say "There appears to be ample evidence to support such a finding". We agree in this latter view, and needless to say regard it as involving connivance at the continuance of the adultery. This means that there is an absolute bar to the appellant's reliance on acts of adultery covered by his connivance. Neither Douglas v. Douglas (1951) P85 nor Haevecker v. Haevecker [1936] HCA 68; (1936) 57 CLR 639 mean that, if you do get a corrupt intention on the part of a husband that an adulterous relation already established by a wife shall continue, it does not amount to connivance at the continuance of the adultery. These decisions are both to the same effect in saying that once a husband knows or believes that his wife has formed an adulterous connection, the fact that he allows or affords opportunities for a further act or acts of adultery in order to obtain proof does not mean that he has a corrupt intention and connives. (at p382)

7. "In applying the tests of connivance to facts, it is necessary to remember that while every act of adultery is a matrimonial offence, the important question is whether the establishment of a guilty relationship was connived at. When an adulterous relation has been established the injured spouse is placed in an entirely different position. In point of time connivance precedes or coincides with the commission of an offence. When the adulterous connection is formed the offence is complete and the other spouse is not expected to take measures to prevent its continuance": per Dixon and Evatt JJ., Haevecker v. Haevecker (1936) 57 CLR, at pp 653, 654 . It is true that in Douglas v. Douglas (1951) P, at p 97 Denning L.J., after quoting the often cited passage from Lord Chelmsford's speech in Gipps v. Gipps (1864) 11 HLC 1, at p 28 (11 ER 1230, at p 1241) and saying that the material event is the inception of the adultery and not its repetition, says: - "It follows that the consent of the husband which is to bar his claim must be a consent to the adultery before it starts". But his Lordship proceeds: "When this is realized it becomes plain that, once a husband suspects that an adulterous intrigue has already started, he is not guilty of connivance simply because he watches for proof of it. He is not then consenting to the inception of adultery, but only seeking for proof of its repetition. In order to obtain the proof, he may even acquiesce in its continuance, but that is not connivance. In every case where a husband or his agents keeps watch on his wife, to see if she is keeping an illicit assignment, he can be said to acquiesce in her adultery, because he has only to warn her beforehand that she will be watched and she will of course abstain from keeping the appointment. But such acquiescence has never been held to be connivance. The reason is because, in connivance, it is essential that there should be a corrupt intention on his part". In such circumstances there is no corrupt intention to encourage or promote the continuance of the adultery. It must be rare to find circumstances in which, an adulterous connection having been formed by a wife, its continuance is the subject of a corrupt intention on the part of a husband amounting to connivance. But it is to be noticed that in Woodbury v. Woodbury (1949) P 154, at p 159 Bucknill L.J. said: "In the present case, once the adulterous intercourse had started without any fault on the part of the wife, her position, when she did discover it, was very difficult. If she, with a corrupt intention, then behaved in such a way as to promote or encourage the continuance of the adultery, to quote the words used by Lord Merriman P. in Churchman v. Churchman (1945) P 44 in another part of his judgment (1945) P, at p 52 , I think that she would be guilty of connivance; but in my opinion 'corrupt intention' would mean in this case that the wife showed by her conduct that she willingly consented to the continuance of the adultery". (at p384)

8. The present is a case where a husband did choose to acquiesce in and encourage the continuance of an adulterous connection which his wife had formed; he did so out of indifference coupled with considerations of advantage. (at p384)

9. But the connivance of the appellant was directed to an existing situation. It could not, as connivance, be related back to the inception of the adultery so as retroactively to connive at that adultery. In this view we agree with the Full Court of the Supreme Court. But clearly enough the whole conduct of the appellant amounted to condonation of all past adultery of his wife with Osmond. He did not know when the adulterous character of the relationship began. But he knew that it had been going on for some time. He indicated quite plainly, both by his acquiescence in its continuance and by his cohabitation with his wife while it continued, that he waived it as a matrimonial offence. (at p384)

10. The situation was indeed an unusual one. The appellant, so to speak, tacitly conferred upon his wife a licence of a general character to commit adultery with Osmond and at the same time maintained her in her full position as his wife. He condoned the past adultery, of which he had a sufficient knowledge although he may not have been completely aware of the duration of the adulterous relationship. He showed, however, that he was indifferent altogether to the precise facts and was agreeable nevertheless to continue to share his wife with Osmond. While in this way condoning her past adultery with him, the appellant connived at future adultery with Osmond. (at p384)

11. In his dissenting judgment in Beard v. Beard (1946) P 8, at pp 30, 31 Vaisey J. appears to consider that the consequence of that decision must be that in English law absolute condonation cannot take place, no matter if both parties resolve that it shall be absolute and unconditional so as to render the offence incapable of being revived. (at p384)

12. If the reason why a condoned matrimonial offence may be revived by a subsequent offence is that condonation is subject to an implied condition, it ought to follow that the implication may be excluded by a sufficient communication of a positive intention to do so. (at p384)

13. It is to be noticed that in Rose v. Rose (1883) 8 PD 98, at p 99 , where an agreement that prior offences should be considered condoned and should not be relied upon in any proceedings was held effective to prevent revival of the prior offences by subsequent offences, Sir George Jessel M.R. said: - "It appears to me to be perfectly consistent with public policy to hold that there may be what, for want of a better term, I will call final condonation. In the old Ecclesiastical Courts condonation was never final, but I do not see that public policy is against final condonation". In Studdy v. Studdy [1858] EngR 1248; (1858) 1 Sw & Tr 321 (164 ER 747) Sir Cresswell Cresswell regarded permission by a wife to her husband to continue an adulterous connection as condonation of past adultery as well as connivance at future adultery: "If the wife thereby gave leave to her husband to commit adultery in the future, that would satisfy me that she condoned any such acts previously committed" (1858) 1 Sw & Tr, at p 323 (164 ER, at p 748) . This sort of thing has been called anticipatory connivance: cf. Higgins v. Higgins (1924) 41 TLR 25, at p 26 . How far condonation must be conditional is perhaps in doubt; at all events the extent or duration of the operation of the condition is not clear: cf. Beale v. Beale (1951) P 48, at p 49 . Condonation of the kind here under consideration is not of the kind to which forgiveness conditional upon fidelity has any sensible application. But assume that the waiver of redress for past adultery involved in the appellant's connivance is compatible with a revival of the past adultery as a ground of relief. Adultery connived at cannot amount to a matrimonial wrong that would revive the waived offences. In Rayner v. Rayner (1919) VLR 617, at p 620 Hood J. said: "This petitioner did not actively condone, but with full knowledge he did nothing, showing indifference and acquiescence, so as to give the wife a licence for her profligate life: Durant v. Durant [1828] EngR 56; (1825) 1 Hag Ecc 733, at p 745 [1828] EngR 56; (162 ER 734, at pp 738, 739) . In America it has been held that - 'If a man for a considerable space of time sees his wife living in open adultery, and takes no steps either to prevent it or to obtain a divorce, he is presumed to have forgiven or acquiesced in the past, and to acquiesce also in the present, and he cannot succeed in his suit' - Bishop on Divorce, vol. II., par. 104" (at p385)

14. The facts of the present case are stronger than this doctrine would require. But it may be said that the acts of adultery committed after 9th April 1949 were not covered by the appellant's connivance. They went on until April or May 1950, but in strictness we are concerned only with the period up to the commencement of proceedings, 29th August 1949. (at p386)

15. The rule expressed as "once connivance always connivance" does not now obtain, if it ever did. The force of connivance may be spent. Gorst v. Gorst (1952) P 94, at p 105 ; Richmond v. Richmond (1952) 1 All ER 838 ; Monahan v. Monahan (1949) 23 ALJ 469 . But the appellant's connivance had not spent its force when he and his wife parted. The course he took was not dictated by a desire to rescue his wife from her guilty relations with Osmond and it was likely to do anything but that. It was due simply to the appellant's having formed a determination to take advantage of his wife's adultery in order to get rid of her and obtain a divorce. (at p386)

16. It follows that the adultery committed by the appellant's wife during the period from the beginning of 1947 to the commencement of the proceedings was connived at and that the continuance of cohabitation with his wife and the connivance at her adultery with Osmond precluded him from reliance upon the acts of adultery prior to that period. (at p386)

17. Ligertwood J. dealt with the suit, after it was remitted to him by the Full Court of the Supreme Court for further hearing, on the footing of unreasonable delay. A difficulty in so dealing with the case lies in the fact that until the proceedings were commenced and the defendant and co-defendant admitted the commission of adultery in 1941 and onwards the ppellant had never been in a position to prove adultery during the period before he began to connive at the relationship. (at p386)

18. But in any case we think for the reasons we have given the dismissal of the suit was right. (at p386)

19. The appeal must be dismissed. (at p386)

ORDER

Appeal dismissed with costs.