B.v B. (1977) Z.R. 159 (H.C.)

Facts

The parties got married in the UK and adopted three children. The petitioner lived with the respondent for a considerable length of time and noticed that the respondent was ‘cold’ towards her. He showed no affection for her and this was quite exemplified by his silence when the petitioner had gone through a miscarriage. For years, the petitioner had tried to effect a reconciliation to make the marriage work but her efforts were not reciprocated. On coming to Zambia, their relationship grew more strained. This ultimately led to the petitioner maintaining her own bed in the same bedroom with the respondent (she stayed in the same bedroom because the other rooms were occupied by the children). She gave evidence to the effect that although they shared the same table at dinner, she made no effort to wash his clothes or laundry (that was taken care of by the worker).

Issue

 Could this marriage be dissolved on the grounds of desertion? That is, of course, founded on the premise of separation? If not, what about on the ground of unreasonable behavior of the respondent to the extent that the petitioner could not reasonably be expected to live with him?

Held

The court held that living apart does not necessarily mean physical distance. It could mean persons are under the same roof however, maintaining two different separate households. In determining whether the parties maintained two separate households, it was found that they did not. One of the parties could have slept in the living room for example, much to bewilderment of the children and the worker. The very fact that this extreme action was not taken revealed that the parties did not have the intention to live apart. However, the court found that the petitioner had proved her case to satisfy section 1 (1) and (2) (b) of the Matrimonial Causes Act 1973, in that the respondent had acted so unreasonably that it couldn’t be expected for her to continue living with him. There was evidence to the effect that the respondent was cold towards the petitioner despite her efforts to make the marriage work for considerable length of time; he showed no sympathy and had a lack of understanding. Hence the divorce was granted on that ground.

Commentary

In coming to the conclusion for dissolution of the marriage, the court applied the test in Mahande v Mahande.

On the aspect of desertion and living apart, the court also held that it makes no difference whether the petitioner stays under one roof with the respondent because he or she cannot find or cannot afford alternative accommodation. The words of Denning LJ in Hopes v Hopes in this regard are quite helpful, he said: “One of the essential elements of desertion is the fact of separation: can that exist whilst the parties are living under the same roof? My answer is: “Yes”. The husband who shuts himself up in one or two rooms of his house, and ceases to have anything to do with his wife, is living separately and apart from her as effectively as if they were separated by the outer door of a flat… He has forsaken and abandoned his wife as effectively as if he had gone into lodgings.”

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VIGILANTE SCHOLAR TEAM

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