Furbert v Rasheed (formerly Furbert)
| Jurisdiction | Bermuda |
| Judgment Date | 31 March 1988 |
| Docket Number | Civil Appeal No 12 of 1985 |
| Date | 31 March 1988 |
| Court | Court of Appeal (Bermuda) |
In the Court of Appeal for Bermuda
In the Court of Appeal for Bermuda
In the Court of Appeal for Bermuda
Blair-Kerr, P
da Costa, JA
Henry, J.A.
Civil Appeal No 12 of 1985
Civil Appeal No. 12 of 1985
Civil Appeal No. 12 of 1985
and
and
and
and
and
G Marshall for the wife/appellant
N Voaden for the husband/respondent
Mrs. Marshall for Appellant
Mr. Voaden for Respondent
Bastable v Bastable and SandersUNK [1968] 3 All ER70
Ginesi v GinesiUNK [1948] 1 All ER 373
Preston-Jones v Preston-JonesUNK [1951] 1 All ER 138
Mordaunt v Moncrieffe (1874-80) AER Rep 288
Bater v BaterUNK [1950] 2 All ER 458
Rejfek v McElroyUNK [1966] ALR 270
O'Neill v O'NeillUNK [1975] 3 All ER 289
Buffery v Buffery The Independent 7 December 1987
Matrimonial Causes Act 1974 s. 5(2)
Divorce — Civil procedure — Appeal — Petition by wife on grounds of adultery and unreasonable behaviour — Decree nisi granted on grounds of unreasonable behaviour — Adultery not proved — Wife appealed saying petition should have been granted on grounds of adultery as well
The Appellant and Respondent may conveniently be referred to as ‘the wife’ and ‘the husband’ respectively. The husband was born in January 1947. He is, therefore, now aged 41 years. The wife was born in April 1954. She is, therefore, now aged 33 years. They were married on 10th January 1982. In July 1984, she applied for leave to present a divorce petition, but her application was dismissed. She filed her petition for divorce on 22nd January 1985. The ground on which she sought dissolution of her marriage is set out in paragraphs 9 and 10 of the petition as follows:
-
‘9. The marriage has broken down irretrievably.
-
10. The Respondent has committed adultery with Marie Gibbons and in consequence of that adultery the Petitioner finds it intolerable to live with the Respondent and the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.’
It would appear that the wife thought that she was in a position to satisfy the court of the facts enumerated in paragraphs (a) and (b) of subsection (2) of section 5 of The Matrimonial Causes Act 1974. The relevant portion of subsection (2) reads:
-
‘(2) The court shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say -
-
(a)that the respondent has committed adultery and in consequence of that adultery the petitioner finds it intolerable to live with the respondent;
-
(b)that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.’
-
Particulars of the allegations in paragraph 10 of the petition were set out in a number of sub-paragraphs. Those particulars may be summarised as follows:- The husband spent a great deal of time away from the matrimonial home, and when asked by the wife where he had been and what he was doing, he either lied or said ‘where do you think I am going’ or ‘you'll soon findout’. He drove the co-respondent to and from work throughout the marriage. She saw the husband and co-respondent together on numerous occasions in public. On numerous occasions in her presence he telephoned the co-respondent. On numerous occasions he told the wife that he did not love her and that he did not wish his relationship with the co-respondent to end. The husband wrongly accused her (the wife) of being unfaithful to him. Soon after the marriage, the husband began to behave towards her (the wife) in an unkind and insensitive manner both privately and in public. For two years he failed to contribute towards the household expenses and failed to provide the wife with any financial support.
In April 1982 the husband went abroad with the co-respondent and they stayed together in a hotel and on their return she saw them disembark from the same flight. In August 1983 the husband went abroad. The wife discovered that he was in the company of the co-respondent. On this occasion he registered at The Edison Hotel in New York under an assumed name. From all this, the wife concluded that the husband carried on an unconcealed, improper and adulterous relationship with the co-respondent. This caused the wife to suffer severe mental and physical hardship, distress and anxiety. On two occasions throughout the marriage, arguments between her and the husband resulted in his physically abusing her; and that on 8th July 1984, the husband left the matrimonial home, and, as at the date of the petition, he was residing with the co-respondent.
The petition was received by both the husband and the co-respondent on 12th February 1985 at ‘Essequibo’, Glebe Road, Pembroke. In answer to the question: ‘Do you intend to defend the case’, the co-respondent is recorded in the Acknowledgement of Service as having answered ‘no’. It appears that in the Acknowledgement of Service the respondent did not answer that question one way or the other. He consulted his attorneys who filed on his behalf an Answer in which he agreed that the marriage had broken down irretrievably but denied that this was due to his behaviour. He admitted that he left the matrimonial home on 8th July 1984, but averred that he did so because the wife had that day ‘withdrawn from cohabitation’ with the intention of bringing cohabitation permanently to an end. He averred that, since the celebration of the marriage, the wife had had a lesbian relationship with another woman; and that he found it intolerable to live with the wife.
The Answer is dated 25th February 1985; but on 10th October 1985, his attorneys wrote to the wife's attorneys as follows:
‘We are instructed by...
To continue reading
Request your trial