Combe v Combe [1952] EWCA Civ 7 (04 April 1952)

Wife left matrimonial home with husband's consent for a holiday but did not return. Husband petitioned for divorce claiming wife's desertion revived her previously condoned adultery. Court found husband failed to prove wife intended to desert, as he kept her short of money and showed no genuine desire for her return. Appeal dismissed.

Facts

Mr and Mrs Combe married on 18th April 1945. In December 1946, the wife gave birth to a child fathered by another man during the husband’s absence abroad. The husband condoned this adultery and they continued living together, having a daughter in December 1947. On 28th February 1949, the wife travelled with both children to her parents’ home near Durham. The husband provided only a single railway ticket and emergency ration certificates for a month, despite claiming she was going for a fortnight’s holiday. He sent her approximately 30 shillings weekly but kept her short of money. When he later sent £3 for her return fare, she was already in debt and could not afford to return.

Subsequent Events

The wife took out a desertion summons against the husband in the Magistrates’ Court, which was dismissed. The husband sold the contents of their flat and gave it up. In October 1949, the wife wrote asking if they could make another start for the children’s sake. The husband replied by telegram refusing emphatically. The wife subsequently obtained a desertion order against the husband.

Issues

The central issue was whether the wife was in desertion within the meaning required to constitute a matrimonial offence that would revive her previously condoned adultery. Specifically, the court had to determine whether the wife had the necessary intention to bring cohabitation permanently to an end.

Judgment

The Court of Appeal unanimously dismissed the husband’s appeal. Lord Justice Singleton held that the Commissioner’s findings of fact should not be lightly departed from, particularly in matters depending upon the assessment of witnesses.

The Commissioner had found that the wife went for a holiday without any intention of deserting her husband at that time. He further found that the husband had not acted reasonably, had kept the wife short of money, and had shown no genuine desire to have her back. When the wife later offered to return and try again, the husband definitively refused.

Lord Justice Singleton stated that for the husband to succeed on his petition, he must show a matrimonial offence on the wife’s part at the time alleged, and if the alleged offence is desertion, he must prove an intention on her part to bring cohabitation permanently to an end. The Commissioner was justified in finding this had not been proved, particularly given the husband’s conduct in keeping the wife short of money and his admission before the Magistrates that he did not wish to live with his wife again.

Implications

This case reinforces the principle that desertion requires proof of intention to bring cohabitation permanently to an end, and this is a question of fact for the trial judge who sees and hears the witnesses. Appellate courts should not lightly interfere with such findings. The case also demonstrates that a spouse seeking to establish desertion must themselves have acted reasonably, and conduct such as keeping the other spouse short of money or showing no genuine desire for reconciliation may undermine a claim that the other party is the deserting spouse.

Verdict: Appeal dismissed. The husband's petition for divorce on grounds that the wife's desertion revived her condoned adultery failed, as the Commissioner's finding that the wife did not intend to desert was upheld.

Source: Combe v Combe [1952] EWCA Civ 7 (04 April 1952)