Dowling v Dowling et Al

• Jurisdiction: Bermuda
• Judge: Seaton, J.
• Judgment Date: 19 March 1973
• Court: High Court (Bermuda)
• Date: 19 March 1973
• Docket Number: No. 6 of 1973

High Court (Divorce Jurisdiction)

Seaton, J.

No. 6 of 1973

Dowling

and

Dowling et al

Family law - Husband and wife — Divorce

Seaton, J.

1 This is an undefended petition which has caused considerable difficulty, not because of the issues or the facts which were quite clear, but regarding the matter of discretion. It is clear both parties have committed adultery. The essence of the matter was summed up by the respondent who, on being served with the Petition, is reported to have said: “He's been doing the same thing long before me.” The principles on which this Court should act in exercising its discretion were set out at length by the Court of Appeal for Bermuda in Williams v Williams Civil Appeal No. 5 of 1966. That decision confirmed a liberalizing trend that was recognized by this Court in Nelmes v Nelmes, Divorce Case No. 89 of 1971, even though on the facts of that particular case discretion was not exercised in the petitioner's favour.

2 This Court may be somewhat cautious in accepting all the dicta in some of the cases decided in British Courts on the eve of the passage of their Divorce Act, 1969 (see, for example, the judgment of Sachs, L.J. in Masrati v. Masrati [1969] 2 All E.R. 658, particularly at pages 660-661). Nevertheless, I have come to the conclusion that this is one of those cases in which great weight should be given to the principle that it is undesirable to keep parties in a state where they are compelled to adopt a life of continuous adultery. Discretion will, therefore, be exercised in the petitioner's favour and there will be a Decree Nisi.

However, as I am of the view that there was no act, of the Co-respondent which caused the break-down of the marriage, it had broken down long before he came on the scene, and that the acts or omissions of the petitioner contributed as much as those of anyone else to the lack of reconciliation, I will make no order as to costs.