Contested divorce was much in the headlines this year, because of the Owens v Owens case that went up to the Supreme Court. It is still pretty rare for someone to actually contest a divorce, rather than just grumble, tear up the letters or argue about the precise wording, there are about twenty full on contested divorces each year. (I used to do divorce law for a little while – not terribly well, and I only had one person want to actually contest a divorce – until I set out what it would cost and what the prospects of success were)
I don’t write about divorce cases much (unless they are very entertaining) so this is an extraordinary contested divorce case.
To give you the flavour, Ms W (Wife) was told by Mr H (the Husband) on 8th May 2017 that he had been having an adulterous affair with her best friend for the last 25 years, though he had ended that now, and started with another woman.
Ms W filed for divorce on the grounds of adultery. Mr H disputed that (although admitted the adultery) and cross-petitioned for unreasonable behaviour.
2.This has been an extraordinary case in very many respects as I shall return to in some detail later. The two most obviously unusual features should, however, be set out at the start. First, that this has been a three-day contested divorce trial. I understand that there are only about twenty contested divorce trials a year in this whole country. Secondly, that the respondent in these proceedings, Mr H, has contested the divorce which Ms W has brought because of his adultery despite admitting to having committed adultery for some twenty-two years of their marriage.
There was a contested hearing over the course of 3 days. Mr H required all of the witnesses to attend and they all gave oral evidence. That included his sister-in-law, his daughter-in-law, three sons of his former mistress, his former mistress, his daughter, the husband and wife themselves, and a man who bought a car from the husband in 2013….
In case you think this isn’t yet weird enough, the original trial was adjourned.
12.Pursuant to those directions, the trial was meant to take place on 5 to 7 September but Mr H did not attend on the first day as he was in hospital. He contacted Ms Y who told the court staff that he had told her that he was attacked during the night. The information was that he had been stabbed. I have now seen the police records for that night and they are also extraordinary. Mr H has reported that he got up at 3 a.m. on what was listed as the first day of this trial and drove to his yard (which I understand is in an isolated location) where he was attacked by a man or men. Some two to two-and-a-half hours later he rang for an ambulance and was taken to hospital. He has not cooperated subsequently with the police investigation. The court had to adjourn the hearing until 1 November as Mr H was not here and he was self-representing and had been so since 24 July 2018.
The Husband was directed to file medical evidence about this incident and instead filed
a poorly written letter from a consultant neurologist whom he was seeing privately. The letter did not say Mr H was unable to come to court. It did not say he was unable to conduct these proceedings. Mr H told me he had been suffering from headaches, blurred vision, loss of memory and had the feeling of little explosions in his head since the alleged incident on 5 September. He told me he believed he had post-concussion syndrome. He told me he believed he had been attacked because of the weight of evidence he had recently delivered to his wife’s solicitors in order to prevent him from attending this hearing.
The Judge was not, it is fair to say, convinced by the Husband’s account, which does seem to the impartial observer to share a certain quality with Swiss Cheese.
17.I refused the adjournment and gave, as I have said, a judgment about it. There was no medical evidence, just the inadequate letter from the doctor who did not attend court although should have done. Mr H admitted to me he was still driving and had been shooting which I considered incompatible with the symptoms he was telling me about which included blurred vision. I was not satisfied that Mr H had been attacked as he said. I do not know. I do not know if he was attacked at all or whether he arranged an attack. I thought the idea he put forward that his wife had in some way sought to have him attacked was ridiculous, not a line the police were pursuing and, in any event, was counter to Ms W’s interests. The so-called evidence which Mr H referred to is not admissible in any event, as Ms W’s legal team would have been well aware of.
To cite Alexander Pope, “A little learning is a dangerous thing; Drink deep, or taste not the Pierian spring’
The Husband’s difficulties seem to have largely arisen because he became aware of the provisions of section 1 (2) (b) of the Matrimonial Causes Act 1973
“Where in any proceedings for divorce the [respondent] alleges that the [petitioner] has behaved in such a way that the [respondent] cannot reasonably be expected to live with [her], but the parties to the marriage have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the [respondent] and held by the court to support his allegation, that fact shall be disregarded in determining for the purposes of section 1(2)(b) above whether the [respondent] cannot reasonably be expected to live with the [petitioner] if the length of that period or of those periods together was six months or less.”
And having admitted twenty five years of adultery, decided to run the argument that the Wife had known about it and put up with it for more than 6 months, so could not rely on it now.
Which is correct, if you can prove that she knew, but it seems a very pointless argument to have.
105.Two things in particular puzzled me when I read the papers in this case. Why was Mr H contesting the divorce proceedings when he agreed that the marriage was over and accepted that he had been sleeping with his wife’s best friend for something over twenty-two years? Even if Mr H considered that he had a technical defence to her petition, why would he be so determined that the divorce had to be on his terms? Secondly, why did Mr H, and indeed Ms Y, blame Ms W for the destruction of their family lives and attribute this to what they term Ms W’s lie rather than to their affair and all the deception of so many people that such an affair involves? I am still unclear as to the explanations.
84.His statement is dated 28 March 2018. His statement is lengthy, and most is irrelevant. He has taken diaries prepared over the years Ms W and used them to give detail to his statement and that of Ms Y and to give some semblance of authenticity by giving dates. I will only deal with matters which relate to the issues before me. Mr H says he had no intention to perjure himself in his acknowledgement of service form when he denied committing adultery, and says:
“I am accused of having another adulterous relationship which again is not true. In my answer I then elaborated that although I had been in an adulterous relationship, which V knew about, crucially that relationship had ended after her knowledge of it. As I understand it, as we had been living together for a full six months after knowledge, she cannot rely on the past adultery as a basis for the divorce.”
I won’t get into all of the evidence given (it is well worth reading, because every paragraph of this judgment contains a gem), but here’s some judicial remarks on Husband’s evidence
98.Mr McCourt cross-examined Mr H at length but also kept to the most relevant parts of his excessively lengthy statement. Mr H emerged from the cross-examination, and indeed from his own cross-examination of Ms W’s witnesses, as a deeply dishonest man. I do not believe him about any of the matters in issue in this case. His attitudes displayed in these proceedings are those which were common forty years ago, not today. He has a minimal respect for women who are there to please him and to do his bidding. In his view of the world, marriage does not entitle a woman to anything other than what her husband chooses to give her.
99.He is clearly proud of his excessive drinking and thought everyone occasionally gets so drunk they have no memory of what has happened. He told me that he had not told the police responsible for fire arms and shotguns about his diagnosis of post-concussion syndrome. He told me his current certificates were under review and that he had no guns in his possession, though he had access to them. He told me he was still shooting. He told me that when applying for his certificates he had lied when answering the questions about being in a happy marriage and about how much he drank, he told me everyone did that. I do not think so. I shall be writing to Essex Police about his certificates as he admitted to committing offences under section 26 and/or 29 of the Firearms Act 1968.
101.In answer to questions from Mr McCourt, he denied he had spoken to Ms W, as alleged by her, on 8 May and could not explain the coincidence of it being that very day that Ms Y insisted all her boys came to her home so that Mr H could speak to them. He blamed his solicitor for the lie in his acknowledgment of service form. He told me all the witnesses I had heard had lied except for him.
102.He described himself as a man of integrity and truth. He told me that Ms W had lied when calling Ms Y her best friend and said that was only the case until about 2005 or 2006. He said that in this case it was Ms W who was the big liar and she wanted to destroy Ms Y’s life. He described the business as his business, not the family business, and agreed that he had increased Ms Y and Ms N’s pay exponentially after the separation. He accepted that Ms W had said to KH that she had suspicions about Mr H and Ms Y in 2010 but could not explain why she would have said that if she had caught them red-handed in 1998 and 2007. He confirmed he did not tell Ms W when he was having sex with Ms Y, so I conclude that she would not know of any specific occasion.
(I note in passing that Mr H had apparently acquired an STI from Ms Y and had subsequently passed it on to his wife. Just to remind you all, this man was trying to divorce his wife for her unreasonable behaviour towards him…)
Can’t skip over one of the four allegations in his divorce petition, which was that Ms W had ridiculed the bird-feeders he had put up for his mother-in-law, who had been unwell. (which he, a man who had been having a 25 year affair with his wife’s best friend, described as ‘the final straw’)
97.He said the final straw in his relationship with Ms W was when she started to ridicule bird feeders he had put up to please her mother who was very unwell.
Well, that certainly changes everything.
I was mildly unsympathetic towards this man, but now I learn of the wife mocking bird feeders, and the boot is clearly on the other foot.
134.She did not, I find, belittle his belated efforts to provide his mother-in-law with comfort by putting up bird feeders
On the mistress’ evidence
114.Sadly, when Ms Y started her oral evidence, she did so by lying. I had told Mr H on Friday afternoon that as he was part-way through his evidence, he could not talk to anyone about the case over the weekend. Mr McCourt was rightly concerned to make sure that that guidance had been followed. Mr H told the court this morning from the witness box that he had seen Ms Y three times over the weekend. She had driven him home from court on Friday and he had seen her twice on Sunday but said that nothing significant had been said about the case.
115.Mr McCourt started his cross-examination of Ms Y by asking her if she had seen Mr H over the weekend which he specified as being from Friday afternoon until Monday morning, and she said, “Once, briefly, on Sunday”. I assume that Mr H was being accurate about the three meetings on the weekend which it appears had been observed. I therefore must conclude that Ms Y started her oral evidence by lying to the court having just taken the oath.
(It is hard to beat the impression that you make as a witness by lying the moment you finish taking the oath…)
116.I conclude also that Ms Y would say whatever she thinks would assist Mr H in this case. It is obvious to me that Ms Y does, and to a certain extent thinks, what Mr H wants her to. I found it most surprising that she thinks it is a fact that Ms W knew about her affair with Mr H in 2007 because Mr H told her he had told her. She said she had no reason to doubt him. She seemed to think that because there were rumours about her and Mr H in their community, that meant everyone knew. She struck me as a naive woman who has made some very odd choices.
117.She told me each of her sons had lied in their evidence, but I am not sure what she thinks they have lied about. She told me how upset E had been before and after giving evidence and that he had suggested to her that he had not been truthful in court. However, she does not seem to be able to grasp that the unfortunate young man may be trying to salvage his important family relationships even now. She seems to be unaware that none of this case was necessary, that her children need not have been put through any of this if Mr H and she had taken a reasonable stance. I reject her evidence. She is not an honest witness nor an honest person, having clearly acted in a deceptive way for twenty-two years to those close to her and lied in her sworn evidence today. I am still puzzled as to why she thinks she is the injured party in all this.
118.I find there is overwhelming evidence to satisfy me that Mr H was committing adultery with Ms Y for over twenty years, but that Ms W did not know this was taking place until Mr H told her this on 8 May 2017. There were occasions when Ms W had suspicions, but these were always allayed by Mr H or by others who did not believe that Ms Y would behave in such a way. Mr H said on 11 June 2007, when Ms W asked him if he was having an affair with Ms Y, that he denied it to her.
All of the allegations of unreasonable behaviour by the Husband were found to be untrue (I mean, if you don’t get home on the bird-feeder allegation, everything else pales by comparison), his petition thrown out, and the Wife’s granted on the basis of adultery. The Husband was also ordered to pay all of his Wife’s costs – on an indemnity basis (which means that on any particular expense where there is any doubt, the Wife gets the benefit of any doubt)
VW v BH (Contested Divorce Proceedings)  EWFC B68 (05 November 2018)