Chapter Ten
The Divorce Court
The next morning Roger woke with a slight headache. There was a ring on the telephone. He got out of bed and answered it. It was Sally.
‘Just to wish you good luck, Roger. I shall be there, but you needn’t take any notice of me.’
‘Oh, thank you, Sally. Thank you very much for ringing.’
He went back to bed for a few minutes. What had he said to Joy the night before? What hadn’t he said? Oh, dear, how difficult it all was. And they’d both be there. Well, he mustn’t think of that now. He must concentrate on his case. He had found out that you don’t normally address the judge in an undefended divorce case before calling your evidence. Henry had told him and he’d been to hear some cases, as Sally had suggested. They certainly sounded simple enough.
He got to chambers early and found Henry there already.
‘Who are you in front of?’ Henry asked.
‘Judge Crane.’
‘Oh, that’s good. You’ll be all right in front of him. Bit of luck for you you’re not before Judge Ryman. He’s sitting today. He can be very difficult. He actually tries all his cases. It can be very awkward. Personally, I think he’s right, but I’m in a decided minority. I think it’s for Parliament to change the law if people want divorce made easier. But very few people agree with me. I expect I’m wrong, but there it is. Glad you’re not in front of Ryman. That would have been a bit tough for your first case.’
At ten minutes past ten Roger, feeling rather self-conscious, walked across the Strand carrying his blue bag. He was on the way to the robing-room. At the entrance to the Law Courts he met his mother.
‘Not late, you see, darling,’ she said. ‘Can you tell me where I go?’
‘Would you mind very much asking an attendant? I’ve got to go and robe and I don’t want to be late. We’re sixth in the list, but you can never tell. Some of the people in the first five cases might not be there.’
He felt a little like he did in his first days at a public school when he was terrified his mother would call him by his Christian name.
He robed and went to the Court. He found Mrs Newent outside. She did not at first recognize him in his wig. She had recovered from her fit of anger in chambers and, feeling a little nervous herself, wanted someone to be nice to her.
‘You look sweet,’ she said.
Roger blushed and coughed.
‘I don’t think we’ll have to wait very long,’ he said.
‘It’s going to be all right, isn’t it?’ said Mrs Newent.
‘Oh, yes, I think so,’ said Roger with reasonable confidence. Now that it was so near to the beginning of the battle, he was glad to think that Judge Crane was an easy judge. How nice of Henry to tell him. What a good chap he was. It made all the difference. He did in fact feel a little weak at the knees. He walked into the Court and at once saw Joy sitting at one end and Sally at the other. They were both attractively dressed. He tried not to let them see he had noticed them. His mother was sitting in the middle of a row. Counsel’s row was almost full, but he was just able to get a seat at the end. A few minutes later the judge came in. The associate got up and called: ‘Foster against Foster,’ and then handed the papers in the case to the judge. Counsel got up and the case began.
‘May it please your Lordship, this is a husband’s petition on the grounds of desertion. Mr Foster, please.’
A man went into the witness box and took the oath. The following dialogue took place:
COUNSEL: ‘Is your full name Ernest Edward Foster?’
THE WITNESS: ‘Yes.’
COUNSEL: ‘Where do you now live, Mr Foster?’
THE WITNESS: ‘Apple Tree Lodge, Buckley, Essex.’
COUNSEL: ‘And were you married on the 14th day of June 1930 to Elizabeth Foster, whose maiden name was Hadlow at the Register Office for the District of Bilcombe in the County of Surrey?’
THE WITNESS: ‘Yes.’
COUNSEL: ‘And there are no children of the marriage?’
THE WITNESS: ‘No.’
COUNSEL: ‘And after the marriage did you live at various places with your wife and finally at Apple Tree Lodge where you now are?’
THE WITNESS: ‘Yes.’
COUNSEL: ‘Now I think your marriage was quite happy at first, but after that did relations between you and your wife become strained?’
THE WITNESS: ‘Yes.’
COUNSEL: ‘And were there disagreements and quarrels and so forth?’
THE WITNESS: ‘Yes.’
COUNSEL: ‘And finally on the 14th June 1946 did she leave you?’
THE WITNESS: ‘Yes.’
COUNSEL: ‘Did she say anything before she left?’
THE WITNESS: ‘No.’
COUNSEL: ‘Nothing at all?’
THE WITNESS: ‘No.’
COUNSEL: ‘Didn’t she say anything about never coming back to you again?’
JUDGE CRANE: ‘I think that’s a little leading, Mr Fox.’
COUNSEL: ‘I’m sorry, my Lord. Did she or did she not say anything about not coming back to you again?’
THE WITNESS: ‘She did.’
COUNSEL: ‘What did she say?’
THE WITNESS: ‘That she wouldn’t come back.’
COUNSEL: ‘And has she ever come back?’
THE WITNESS: ‘No.’
COUNSEL: ‘Now, will you look at these two letters. There are copies for my Lord. (Letters handed to Witness.) Are those letters in your wife’s handwriting?’
THE WITNESS: ‘Yes.’
COUNSEL: ‘Your Lordship will see that in them she repeats that she will never come back to the petitioner again.’
JUDGE CRANE: ‘Yes, I see.’
COUNSEL: ‘Now may he see the acknowledgment of service? (Document handed to the Witness.) Do you see a signature you recognize at the bottom of that document?’
THE WITNESS: ‘Yes.’
COUNSEL: ‘Whose is it?’
THE WITNESS: ‘My wife’s.’
COUNSEL: ‘Thank you, Mr Foster. My Lord, if your Lordship is satisfied on the evidence I ask for a decree nisi.’
JUDGE CRANE: ‘Very well, Mr Fox. Decree nisi.’
The next case was called. The dialogue was very much the same, except that that case was, like Roger’s, a discretion case. The petitioner was a man and, in addition to evidence very similar to that which had been given in the last case, the following passage occurred:
COUNSEL: ‘May the witness see his discretion statement? (The document is shown to the Witness.) Now, Mr Brown, do you see a signature at the bottom of that document which you recognize?’
THE WITNESS: ‘Yes.’
COUNSEL: ‘Whose is it?’
THE WITNESS: ‘Mine.’
COUNSEL: ‘Before you signed that document, did you read it through carefully?’
THE WITNESS: ‘I did.’
COUNSEL: ‘Are the contents true?’
THE WITNESS: ‘They are.’
COUNSEL: ‘And have you committed adultery with anyone else or on any other occasions than are mentioned in that statement?’
THE WITNESS: ‘No.’
COUNSEL: ‘Thank you, Mr Brown. My Lord, upon that evidence, I respectfully submit that this is a case in which your Lordship can properly exercise your discretion in favour of the petitioner and if your Lordship is satisfied, I ask you to do so and to pronounce a decree nisi.’
JUDGE CRANE: ‘Very well. I exercise my discretion in favour of the petitioner and grant a decree nisi.’
It was all very short, thought Roger. He would like, if he could, to make rather more of his case, if possible. He didn’t want trouble, but this was, if anything, too easy. Mrs Newent, on the other hand, was very satisfied. This, she told herself, was exactly and precisely what the doctor had ordered. Her confidence now almost completely restored, she began to wonder where she and Mr Storrington should go and have a celebration that night. Just at that moment another associate came in and spoke to his colleague sitting below Judge Crane.
The latter, after a whispered conversation with him, stood up and spoke to the judge in an undertone. Then he announced: ‘The following cases will be taken before His Honour Judge Ryman in Probate Divorce and Admiralty Court 4. Will the parties and their witnesses please proceed to that Court at once. Speed and Speed, Newent and Newent, Layer and Layer.’
As Roger got up to go counsel next to him said: ‘Bad luck, old boy. Glad it isn’t me.’
Roger felt his inside leave him for the floor. Why had he said to himself that he’d like to make a little more of his case? This was fate’s revenge. He wondered what Ryman was like. Oh, well, there was nothing for it. And anyway he would see him try one case first, that was something. Fortunately Mrs Newent was quite unaware that there had been any change in her fortunes. She assumed that much the same happened in every Court. Roger started on his way to Court 4, with the managing clerk from her solicitors, and followed by Mrs Newent, his mother, Joy and Sally, who walked along together.
‘So glad you could come,’ said Joy.
‘I’d have hated to disappoint you,’ said Sally.
Roger went into the Court where Judge Ryman was sitting. After a short delay the associate called: ‘Speed against Speed.’
Counsel next to Roger stood up and put his client, a woman, into the witness box. Roger looked at the judge. He noticed nothing particularly forbidding about his appearance and was grateful for that. Mrs Speed was petitioning for a divorce on the ground of cruelty. After counsel had asked the preliminary questions about the marriage, he started to ask about the history of the married life.
‘Did he ever hit you?’ he asked.
‘Really,’ said the judge, ‘the Court of Appeal and the learned President have said more than once that leading questions should not be asked. This is a petition on the ground of cruelty. Please don’t lead on any essential matters.’
‘If your Lordship pleases. Well, Mrs Speed, did he or did he not hit you?’
‘Really,’ said the judge, ‘that’s just as bad.’
‘With great respect, my Lord,’ said counsel, who was a fierce little man with more ferocity than sense or knowledge. ‘That was not a leading question. She could have said “yes” or “no.”’
‘I’m sorry to disagree, Mr Brunt,’ said the judge. ‘The witness could have answered “yes” or “no” to your first question, but it was none the less leading. So is this one.’
‘Well, my Lord, I’ve often asked this kind of question at the Old Bailey without objection.’
‘I’m afraid I’m only concerned with this Court, Mr Brunt.’
‘My Lord, I wish to be heard on this point.’
‘By all means, Mr Brunt, if you think it of any value. You can always go to the Court of Appeal, you know, if you object to my ruling.’
‘Think of the expense, my Lord. My client wants a divorce, not a visit to all the Courts in the country.’
‘Please behave yourself Mr Brunt. I can only say that if your client wants a divorce she must give her evidence without the assistance of leading questions. That is particularly the case in a matter such as the present one where, no doubt, the bulk of the evidence will be that of your client herself. I have to make up my mind whether I believe her or not. That’s difficult enough anyway in most undefended cases. It’s impossible if she only answers “yes” or “no.”’
‘Very well, my Lord. I have made my protest,’ said Mr Brunt.
‘Now, Mrs Speed, how often did these assaults take place?’
‘Mr Brunt,’ said the judge, ‘I’m sorry to have to interrupt you again so soon, but that is not only a leading question, it is a double question and a most improper one in view of my ruling. The witness has not yet said that her husband did hit her.’
‘Well, madam,’ said Mr Brunt in a voice in which he did not conceal the annoyance, ‘did he hit you?’
‘Really, Mr Brunt,’ said the judge. ‘There must be a limit to all this.’
‘Really, my Lord,’ said Mr Brunt angrily. ‘Your Lordship told me to ask the question and then your Lordship complains when I do ask it. I agree that there must be a limit.’
‘Mr Brunt, that was a most improper observation. I must ask you to apologize for it.’
Mr Brunt hesitated, made a quick appreciation, decided he had gone too far, though in his view not without extreme provocation, and said: ‘I apologize, my Lord, but it is very difficult to know what questions to ask in front of your Lordship.’
‘Well, please try, Mr Brunt,’ said the judge. ‘Only don’t make them leading questions. If you would like me to suggest one, I will.’
‘That would be most kind of your Lordship.’
‘Perhaps you’d better ask her how her husband treated her after the first few months of married life.’
‘Thank you, my Lord, I will.’
Meantime, Roger, who was not altogether able to make up his mind whether Mr Brunt or the judge was in the right, realized that what Henry had said had been only too true. He prayed that he would be able to avoid leading questions. It’s very difficult if you don’t really know what they are. Roger did not yet appreciate that the context or circumstances in which a question is asked may make it leading and that the question, ‘Did he or did he not do so-and-so’ may, according to the circumstances, be a grossly leading question or not a leading question at all.
‘He treated me like a slave,’ said the witness.
‘In what way?’ asked Mr Brunt.
‘In every way.’
‘Would you be a little more explicit, please madam,’ said Mr Brunt. ‘Enumerate some of the ways.’
‘En – enu – enum–?’ said the witness, puzzled.
‘Give some examples,’ paraphrased Mr Brunt.
‘It was always happening.’
‘What was always happening, Mrs Speed?’ asked the judge.
‘Him treating me like that, your Honour.’
‘Yes, but how did he treat you?’ asked the judge.
‘Oh, terrible.’
‘Yes, but we weren’t there, Mrs Speed. You must tell us what he did,’ said the judge.
‘It was all the time.’
‘But what was all the time?’ said the judge.
‘What he did.’
‘But what was it?’ said the judge.
‘Everything.’
‘Tell me one thing he did,’ said the judge.
‘There were so many.’
‘Then it should be easy to tell me one,’ said the judge.
‘It’s a long time ago.’
‘Well, Mr Brunt, you must see if you can elicit anything from the witness. I’ve tried, but with no success, I’m afraid,’ said the judge.
‘Madam,’ said Mr Brunt, ‘what did your husband do to you?’
‘It was that time at Christmas,’ said Mrs Speed.
‘What happened at Christmas?’ said Mr Brunt.
‘No, it was Easter,’ said Mrs Speed. ‘You’ve got me all flummoxed.’
‘Well, what happened at Easter?’ asked Mr Brunt.
‘You want me to tell the judge?’
‘That’s what I’ve been asking you to do for the last five minutes,’ said Mr Brunt.
‘I didn’t half tell him off,’ said Mrs Speed, ‘but I don’t think he heard me.’
‘How long was this case supposed to take?’ asked the judge.
‘Fifteen minutes, my Lord,’ said the associate.
‘Well, it’s taken nearly that to get this witness’ name and address, which is about all we have got so far. Mr Brunt, would you like me to stand the case over to be started afresh another day before another judge? At this rate it will need at least an hour.’
‘If your Lordship had let me ask the questions as I wanted to,’ said Mr Brunt, ‘it might have been over by now.’
‘Equally,’ said the judge, ‘if I’d let you give the evidence. I thought possibly, Mr Brunt, you’d like the case to be stood over and heard de novo by another judge.’
‘Yes,’ said Mr Brunt, ‘I think perhaps I’ll accept your Lordship’s kind suggestions.’
The case was accordingly adjourned and Roger, now on the high diving-board, waited for the word to go.
‘Newent against Newent,’ called the associate.
‘May it please your Lordship, this is a wife’s petition on the ground of desertion. I should tell your Lordship that it’s a discretion case. Mrs Newent, please.’
‘Are you putting in the discretion statement now, Mr Thursby?’ asked the judge.
Do I or don’t I, thought Roger. I don’t know. Why hadn’t I asked? Here I am, stuck before I started and mother’s here and Joy and Sally. Oh, hell, why didn’t I watch what they usually do?
The judge noticed the pause and Roger’s white wig and said pleasantly: ‘That’s the usual course, Mr Thursby, unless there’s some special reason for not doing so.’
‘Very well, my Lord,’ said Roger gratefully. ‘I’ll put it in now.’
‘Very well, Mr Thursby, thank you,’ said the judge.
That was better. It was good to be called Mr Thursby and now he was on an even keel again.
Mrs Newent was sworn and was asked by Roger the usual preliminary questions.
‘And now, Mrs Newent, will you tell his Lordship how your married life went?’ asked Roger.
‘It was all right at first,’ she said, ‘but after that he started picking on me, said I paid more attention to my boarders than to him.’
‘And did you?’ intervened the judge.
‘Not more than was necessary, my Lord. There’s a lot of work to do running a boarding house.’
‘Yes, Mr Thursby?’ said the judge.
‘And what happened in the end?’ asked Roger.
‘He left me,’ said Mrs Newent.
It seemed very little to ask, thought Roger, but what more is there? Oh, yes, the letters.
‘After he left you, did he write to you, or did you write to him?’ asked Roger and then added, ‘Or not,’ in case it was a leading question.
The judge smiled.
‘That wouldn’t really cure it, Mr Thursby,’ he said, ‘if it needed a cure, but fortunately it didn’t.’
‘Thank you, my Lord,’ said Roger.
‘I wrote to him once or twice,’ said Mrs Newent.
‘What did you say in your letters?’ asked Roger.
‘Has notice to produce been given?’ asked the judge.
‘I don’t know, my Lord,’ said Roger.
‘Well, perhaps you’d ask your client then.’
‘Has notice to produce been given?’ said Roger.
‘Pardon?’ said Mrs Newent.
‘No, your solicitor client, Mr Thursby,’ said the judge.
‘I’m sorry, my Lord,’ said Roger suddenly realizing what he’d done. He turned to Mr Smith and asked him if notice to produce had been given.
‘Of course. It says so in the brief, doesn’t it?’ said Mr Smith. He was an experienced managing clerk and did not like what was happening.
‘Yes, my Lord,’ said Roger.
‘Very well,’ said the judge. ‘You can ask what was in the letters.’
‘What was in the letters?’ asked Roger.
‘I don’t really remember,’ said Mrs Newent.
‘So much for them,’ said the judge. ‘But what about the letters from the husband? Were there any?’
‘Yes, my Lord,’ said Roger.
‘Well, you can put those to her,’ said the judge.
‘Did you receive these letters from your husband, Mrs Newent?’ asked Roger, and then started to open his mouth to say ‘or not’ and just checked himself in time. He must remember to ask Henry about leading questions.
‘Yes,’ said Mrs Newent, ‘these are in his handwriting.’
The letters were handed to the judge and he read them.
‘Yes, Mr Thursby?’
‘Has he returned to you, Mrs Newent?’
‘No.’
‘Or offered to return?’ asked the judge.
‘No.’
‘Or to make a home for you?’
‘No.’
For some reason that he could never make out, Roger then proceeded to sit down, as though the case was over. The judge seemed to realize what had happened and quietly said: ‘Discretion, Mr Thursby?’
Roger jumped up, blushing.
‘I’m sorry, my Lord. Mrs Newent, would you look at your discretion statement.’
He asked her the necessary questions about the statement, ending with: ‘Have you ever committed adultery except as stated in your statement?’
‘No,’ said Mrs Newent firmly.
‘What else, if anything, has taken place between you and the man named in your statement?’ asked the judge.
‘What else?’ repeated Mrs Newent, a little nervously.
The judge nodded.
‘Nothing.’
‘But you say you are living on affectionate terms in the same house. Has he suggested further acts of adultery to you?’
‘No, my Lord.’
‘Why not?’
Mrs Newent was totally at a loss to answer the question.
‘You’re living in the same house and you want to get married. Presumably you’re still attracted to one another. You’ve committed adultery once, so neither of you have any conscientious objection to doing so. I could understand your refusing, but I don’t quite understand his not asking you.’
‘Oh, I see what you mean, my Lord. Yes, he did ask me.’
‘But you refused?’
‘Yes.’
‘Because you thought it wrong?’
‘Yes, my Lord.’
‘Thank you, Mrs Newent,’ said the judge. ‘There’s only one other question I want to ask you. How long was it after your admitted act of adultery that your husband left you?’
‘About a couple of months, my Lord.’
‘Thank you, Mrs Newent,’ said the judge.
Suddenly Roger thought he scented danger.
‘Are you sure your husband never knew of your adultery, Mrs Newent?’ he asked.
‘Well,’ said the judge, ‘that is, I’m afraid, a leading question, but, now it’s asked, she’d better answer it.’
‘Quite sure,’ said Mrs Newent firmly. ‘He never knew or suspected a thing.’
‘Did you treat your husband in exactly the same way, after your adultery with Mr Storrington, as before?’
‘How d’you mean, my Lord, the same way?’
‘Well, for instance, you say that you were ashamed the next morning. Your shame might have resulted in your treating your husband rather differently, don’t you think?’
‘I don’t really know, my Lord.’
‘You continued to share the same room?’
‘The same room, my Lord, but not the same bed. We hadn’t for some time.’
‘Yes, Mr Thursby,’ said the judge. ‘Any further questions?’
Roger thought for a moment. He could not think of anything else to ask.
‘No, thank you, my Lord,’ he said. There was then a pause while Roger made up his mind what to do next. You ask for a decree, don’t you, he said to himself. That’s it, I think. Or is there anything else first? I’m not sure. Oh, well – ‘Upon that evidence, my Lord–’
‘Acknowledgment of service, Mr Thursby?’
‘I’m sorry, my Lord.’
Of course, he would forget that. That made at least two things he’d forgotten, but thank Heaven the case was almost over. In a moment or so he would be outside the Court. It had been pretty bad, but it could have been worse. The witness identified her husband’s signature on the document acknowledging receipt of the petition and then she left the witness box.
‘Yes, Mr Thursby?’ said the judge.
‘Upon that evidence, my Lord, I ask your Lordship to exercise your discretion and grant a decree nisi with costs.’
There, he’d said it and his first case was about to be over.
Not much credit winning an undefended case, but still – what was that? What was the judge saying?
‘It’s not quite as simple as that, Mr Thursby.’ What on earth was he talking about? Surely he knew about Herod and Herod.
‘You see, Mr Thursby,’ went on the judge, ‘your client committed adultery before her husband left her.’
‘Yes, my Lord,’ began Roger with no clear realization of what he was going to say, ‘but – but–’ very tentatively he started to say, ‘Her – Herod–’
‘But is it quite clear,’ went on the judge, ‘that Herod and Herod applies to a case where adultery is committed before the other spouse leaves? It strikes me as a bit odd that a wife who commits adultery should still have the right to the consortium of her husband, provided she’s a good enough liar.’
Good Heavens, thought Roger, that’s exactly what Sally said.
‘How can you desert someone who hasn’t the right to be lived with?’ went on the judge.
‘My Lord,’ began Roger, but it was much too difficult. He wanted to say something about Herod’s case, but had no idea how to put it. As if reading his thoughts, the judge continued: ‘I know there’s a passage in Herod which helps you, but is it more than a dictum? We’d better look at it, hadn’t we?’
The judge sent for that case and for some others. After reading several passages aloud and talking to Roger, who was almost unable to say anything except, ‘Yes, my Lord,’ or ‘No, my Lord,’ the judge eventually said: ‘Well, Mr Thursby, much as I regret it, you have convinced me that the principle must be the same in each case, although with the greatest respect to the judges concerned, I cannot think that it is the law of this country that the adulterer who can lie well enough is entitled to the consortium of the other spouse, and that it is only the less efficient liar who loses the right to be lived with.’
Roger was now extremely pleased. The judge had said – quite untruthfully – that Roger had convinced him. They were words to be treasured. And so he’d won his case after all. And there had been a struggle, which made victory all the sweeter.
‘Then, my Lord,’ began Roger, ‘I ask–’
‘But I’m afraid,’ went on the judge, ‘that isn’t the end of the matter. Herod and all the other cases make it quite plain that it is for the petitioner to prove that the adultery has not caused the desertion. That’s so, is it not, Mr Thursby?’
‘Yes, my Lord.’
‘Well – have you proved it?’
‘The evidence is, my Lord, that the husband did not know of it.’
‘I agree that is the evidence and though I was not much impressed by your client, I’ll assume for the moment that he didn’t know. But is that enough?’
Roger was now completely out of his depth. There was nothing he could say.
‘I don’t know whether you’re prepared to argue the point today,’ said the judge. ‘If not, I’ll give you an adjournment to enable you to do so on a later occasion.’
‘That’s very good of your Lordship,’ said Roger, having no idea what the point was.
‘The point is this, Mr Thursby. I know that you can show me cases where it has been said on high authority that, if a husband or wife does not know of or suspect the other’s adultery, that adultery cannot be said to have caused the desertion. But, with the greatest respect to the learned judges who have said this, is it correct? There are many things which a husband or wife who has been unfaithful may do or refrain from doing as a result of being unfaithful, and any one or more of those acts or omissions may cause the other spouse to leave. In such a case surely the petitioner would not have proved that the adultery had not caused the desertion, even though it was not known or suspected. Now, Mr Thursby, d’you think you’re in a position to argue that point today?’
Whether I shall ever be, thought Roger, is most uncertain, but one thing is quite certain, I can’t do it now. I must get help.
‘I should be most grateful for an adjournment, my Lord,’ he said.
‘You shall have it,’ said the judge. ‘It isn’t at all an easy point. Adjourned for fourteen days if that’s convenient for you and many thanks for your help today.’