Courtney v Courtney

• Jurisdiction: Ireland
• Judgment Date: 03 March 1923
• Date: 03 March 1923
• Court: Court of Appeal (Irish Free State)

Courtney v. Courtney.

COURTNEY

and

COURTNEY (1)

Appeal. (I. F. S.)

Contract - Husband and wife - Agreement to separate - Agreement not to sue - Consideration - Subsequent proceedings for divorce a mensa et thoro - Effect of agreement - Bar to divorce.

A contract between spouses to live separate and apart is one which may be upheld and enforced. Such a contract need not be in any particular form provided there is evidence of an agreement made for valuable consideration; nor is it necessary that it should contain an express covenant not to sue to be a bar to subsequent proceedings for divorce, if that can be shown to have been the real character of the agreement entered into by the parties.

New Trial Motion.

The respondent applied for an order that the decree or judgment directed to be entered on the trial of the action before Gordon J. and a common jury of the city of Dublin on the 20th and 24th days of July, 1922, should be set aside, and judgment entered in the action for him on the ground that on the finding of the jury in reference to the agreement entered into between the petitioner and the respondent, the learned Judge should have entered judgment for the respondent.

The plaintiff's petition, filed 2nd May, 1922, was for a divorce a mensa et there on the ground of cruelty. The nature of the cruelty alleged appears sufficiently for the purpose of this report from the pleadings set out in the judgment Or Mr. Justice Dodd (infra).

At the trial of the action it was proved that the parties had agreed in May, 1921, in the presence of a priest, to separate, the respondent agreeing to pay the petitioner a sum of £150, and the petitioner to return to him a watch and her ring. Counsel for the respondent at the trial contended that the petitioner was estopped from taking divorce proceedings by this agreement, and submitted that nothing hud occurred since to alter it.

The following questions were submitted to the jury, and answered as hereinafter mentioned:—

1st. Did the husband threaten to put a knife through his wife? Answer, "Yes."

2nd. If so, did this put the wife in reasonable apprehension that the husband would do her bodily harm? Answer, "Yes."

3rd. Did the husband knock the wife down at Freeman's, and was her head cut thereby? Answer, "Yes."

4th. Whether the husband has so treated his wife as to inflict bodily injury upon her, or cause reasonable apprehension of suffering or injury to her physically or mentally? Answer, "Yes."

5th. Did the wife and the husband in May, 1921, mutually agree to live separate, and not to molest each other, in consideration of the husband paying to the wife £150, she giving him her ring and

watch? Answer, "Yes." "'We do not believe the agreement of May, 1921, a good one,' and there being no evidence of consideration.

Upon the answers of the jury to the questions submitted to them, the Judge found that the respondent had been guilty of such cruelty towards the petitioner as would entitle the petitioner to a degree a mensa et there, and gave judgment accordingly.

Cur. adv. vult.

Molony C.J. : In this case the judgment of the Court will be delivered by Mr. Justice Dodd.

Dodd J. :—

This is a case of a petition by a wife for divorce from her husband on the ground of cruelty. It appears from the petition that Ellen Sullivan, a spinster, was on the 26th day of September, 1886, lawfully married to Michael Courtney, now of Ballynageann in the

County of Monaghan, a farmer, at the Roman Catholic church of St. Vincent Ferrier, New York, in the United States of America. After the marriage the petitioner lived and cohabited with her husband in New York and subsequently at Ballynageann. The petition in paragraph 4 sets out the particulars of the alleged cruelty as follows:—

"During the past three years the said Michael Courtney has at many times been guilty of gross and persistent cruelty towards your petitioner, and in particular on the following occasions, that is to say:—In or about the year 1909 the said Michael Courtney several times accused your petitioner of having committed adultery with a servant man who had been living in the house, named Michael FitzPatrick. In or about the year 1910 the said Michael Courtney accused your petitioner of adultery with several men whom he named, and he refused to cohabit with your petitioner. On your petitioner denying these accusations, the said Michael Courtney threatened her with violence. From time to time the said Michael Courtney repeated these accusations. In the month of March, 1921, the said Michael Courtney returned home late at night, and your petitioner being alone and nervous until his arrival, asked him where he had been. He replied that she would not be in such a hurry if anybody was there, and that she was not in such a hurry the morning she left him standing on the road while she lay in the ditch with the servant man. Your petitioner said it was a lie, and he replied it was the truth, and said that if she denied it again he would put a knife through her. Your petitioner was greatly afraid, and left the house, and stayed in the house of Patrick Freeman, a neighbour, on that night. On the following morning your petitioner returned home, and was met by the said Michael Courtney with the same accusations and threats. Being in fear of personal violence, she left again, taking her personal belongings, and a sum of £170, and went to the same house. The next day the said Michael Courtney came to the said house, and shouted for your petitioner to come down with his £150. Your petitioner said she had £170—that she had a claim to it, as she had worked hard. He then struck her, knocked her down, and kicked her as she lay on the ground, and called her names . . ."

The petitioner then states she is unable to return to the house, is left without any means of support, and prays for relief.

The pleadings, as they stood originally, consisted of a traverse of the cruelty alleged, and a plea of condonation; and the issues sent down for trial were—1, whether the respondent has been guilty of such cruelty towards the petitioner as would entitle the petitioner to a divorce a mensa et there; 2, whether the alleged cruelty has been condoned by the petitioner?

At the trial, Mr. Justice Gordon, the Judge who tried the case at Nisi Prius, in the exercise of his discretion allowed an additional plea to be pleaded relating to the separation contract between the parties. On that plea, the jury found a verdict presumably in favour of the respondent, with a rider which may or may not become material in the further consideration of the case. The learned Judge, however, gave a degree for the petitioner, and that decree is challenged before us on a new trial motion.

The case comes before the Court on a motion by the respondent that the judgment directed to be entered by the learned Judge at the trial (Mr. Justice Gordon) be set aside and judgment entered for the respondent on the ground that on the finding of the jury in reference to the agreement entered into between the petitioner and the respondent the learned Judge should have entered judgment for the respondent.

Two questions were argued before us:—1. Whether the agreement s good in law? 2. Whether the evidence is sufficient to sustain the finding? It will be convenient to first ascertain the principle of law before applying ourselves to the evidence.

Upon the first question a great many authorities were cited, but the matter is concluded so far as this Court is concerned by the judgment of the Court of Appeal in Ireland in the cases of McMahon v.McMahon, Purser v. Purser(1), in which all the cases referred to in the argument before us were considered by the Chief Baron, with the exception of one mentioned at the last moment by Mr. Wood, which it will be necessary to consider later on. Palles C.B. gives an interesting historical survey of the principle from Wilson v. Wilson(2)down, an authoritative exposition of the ecclesiastical law, and a discriminating analysis of the effect of the common law and of the procedure under the Judicature Acts upon the principle; an illuminating judgment from one who, as we know, was as devout as he was erudite. Having examined the authorities, he says as follows, at p. 438 of the report. In view of the difficulty at present in consulting reference books, I think it right to read the entire passage:—

"In delivering judgment in Hunt v. Hunt(3), Lord Westbury, Lord Chancellor, says: Before the Reformation, as we all know, marriage was regarded by the Church, and therefore regarded by the law, as a sacrament. It was a contract of the highest possible religious obligation. All its duties and the obligations which it created were matters of ecclesiastical cognizance, and, above all, it is to be recollected, if I am not mistaken, that the duty of cohabitation—the primary duty arising from the contract—was enforced by the spiritual tribunal by spiritual punishments, acting as they did pro salute animae. It was therefore quite correct to say anterior to the Reformation, in speaking of the policy of the law, that voluntary separations were forbidden by law, and that contracts made for giving effect to voluntary separations...