Combe v Combe

Desertion requires proof of an intention by the alleged deserter to bring matrimonial cohabitation permanently to an end. A spouse’s failure to return after leaving does not, by itself, establish that intention. The surrounding circumstances, including whether reasonable means and encouragement to return were provided, must be considered. An appellate court should not lightly disturb findings made by the judge who saw and heard the witnesses. Without proof of desertion, condoned adultery is not revived by the conduct relied upon.

The husband appealed from the dismissal of his petition for dissolution of marriage. He alleged that his wife had deserted him in 1949 by leaving the matrimonial home and failing to return, and that this matrimonial offence revived her earlier adultery, which he had condoned.

The wife said that she had left for a holiday with her husband’s approval, that he had kept her short of money, and that his arrangements and communications did not show that he genuinely wanted her to return. The Commissioner found that she had not formed a settled intention to desert and dismissed the petition. The central issue was whether that finding was wrong and whether the evidence established desertion sufficient to revive the condoned adultery.

1. Appeal dismissed. The husband had to establish a matrimonial offence by the wife at the time alleged. If the offence relied upon was desertion, he had to prove an intention by the wife to bring cohabitation permanently to an end.
2. The wife’s departure was found to have been for a holiday and not accompanied by a settled intention to desert. Her subsequent failure to return did not, in the circumstances, prove the necessary intention. The Commissioner was entitled to consider the husband’s failure to provide a reasonable means of return, his keeping the wife short of money, and the absence of an inviting request that she return.
3. The court agreed that, if the husband had sent sufficient money, including the railway fare, and had shown a proper desire for her return, it would have been her duty to return. That observation did not overcome the Commissioner’s factual findings. The wife’s later offer to make a fresh start was inconsistent with an earlier settled intention permanently to end the marriage.
4. Particular weight was due to the Commissioner’s assessment because he had seen and heard the witnesses. The Court of Appeal was not satisfied that he had erred in his findings or conclusion. Since desertion was not established, the earlier condoned adultery had not been revived by sufficient misconduct to justify dissolution.

• Court of Appeal (Civil Division): dismissed the husband’s appeal from the order of His Honour Judge Gamon, sitting as Commissioner in Divorce at Durham, dated 10 January 1952. The Commissioner had dismissed the husband’s petition for dissolution.