Vekaria v Vekaria

In a defended matrimonial cause based on conduct, the decisive question is whether the petitioner could reasonably be expected to live with the respondent, assessed against the factual account accepted by the trial judge. Where the judge finds the petitioner truthful, rejects the respondent’s evidence, and establishes a prolonged absence of communication, affection and sexual relations, together with exclusion from family decisions, a decree of dissolution may be inevitable. Cultural conventions do not displace that fact-sensitive assessment. A challenge to a discretionary costs order requires sufficient material, including the relevant submissions and ruling, to demonstrate an error in the exercise of discretion.

The applicant renewed an application for permission to appeal, provisionally refused on paper, against an order made by Mr Recorder Widdup at Willesden County Court on 14 November 2001. The Recorder pronounced a decree nisi in a defended matrimonial cause, refused permission to appeal and ordered indemnity costs for costs incurred after 6 November 2001.

The petition alleged a prolonged absence of communication, love, affection and sexual relations, lack of consideration, exclusion from consultation and decision-making, and more extensive exclusion during the six months before presentation. The answer was a bare denial. The applicant relied on cultural conventions and challenged the costs order, asserting that solicitors were responsible for the failure to respond to a settlement offer. The central issues were whether the factual findings supported the decree and whether the costs discretion could properly be challenged without a transcript.

1. Application refused. Lord Justice Thorpe held that the Recorder had directed himself accurately in law, and no criticism was made of that direction.
2. In a defended matrimonial cause based on conduct, the crucial task is to assess which party presents the more realistic account of the marriage. The Recorder found the petitioner truthful and accurate, rejected the husband’s evidence, and specifically rejected his account of the duration of the sexual relationship.
3. On those findings, the conclusion that the petitioner could not reasonably be expected to live with the respondent was not merely open to the Recorder. A decree of dissolution was proper and inevitable. The submission that the outcome failed sufficiently to recognise cultural conventions did not undermine that conclusion.
4. The challenge to the indemnity costs order could not properly be considered without a transcript of the costs application, the submissions in response and the Recorder’s ruling. The assertion that the failure to respond to the settlement offer was the solicitors’ fault was a matter between the respondent and those solicitors. In the absence of material casting doubt on the exercise of discretion, the presumption was that the Recorder had acted within his discretionary scope.
5. The application remained hopeless and was refused. The decree nisi and costs order therefore stood.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 534, Lord Justice Thorpe refused the renewed application for permission to appeal.
• Willesden County Court: Mr Recorder Widdup pronounced a decree nisi in a defended cause, refused permission to appeal and ordered indemnity costs for costs incurred after 6 November 2001.