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Botswana Law Reports (1964 to 2020(2))/CHRONOLOGICAL LISTING OF CASES 2020/1979­1980/Cases Reported/RILLEY v. RILLEY 1979­1980 BLR 100 (HC)

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RILLEY v. RILLEY 1979­1980 BLR 100 (HC)

Citation 1979­1980 BLR 100 (HC)

Court High Court

Judge Hayfron­Benjamin CJ

Judgment March 30, 1979

Counsel N. W. A. Armstrong for Plaintiff

Annotations

Flynote
Husband and Wife ­ divorce ­ irretrievable break­down of marriage ­ "cannot reasonably be expected to live with the Respondent."
Headnote
Held:
The test is objective as to whether the Plaintiff cannot reasonably be expected by the community to which the Parties belong to continue to
live with Defendant.
The test is objective as to whether the Plaintiff cannot reasonably be expected by the community to which the Parties belong to continue to
live with Defendant.
Case Information
Action for divorce
N.W. A. Armstrong for Plaintiff
Judgment
Hayfron­Benjamin, C.J.
This is an undefended divorce action brought on the sole ground that the marriage between the parties has broken down irretrievably. The
Plaintiff's case is that the break­down of the said marriage has been brought about by the conduct of the Defendant, which has rendered
cohabitation between the parties difficult.
The parties were married in England on the 1st February, 1958, and cohabited there until 1975, when they came to Botswana where the
Defendant took up an appointment with the Department of Civil Aviation. Two daughters had already been born to the parties. It would seem
that the Defendant had taken to heavy drinking in England, and the purpose of their coming to Botswana was therapeutic. It was hoped that
the change of environment would help to curb the excessive addiction to alcohol.
The change in environment, however, proved disastrous. The consumption of alcohol by the Defendant went completely out of hand, and his
conduct took on a nasty aspect. He became aggressive when drunk, and insulted and assaulted the Plaintiff, and sometimes the younger
daughter. All efforts to induce the Defendant to reduce his drinking, and save the marriage and his job failed. Eventually the Defendant was
suspended from his job, and left for England in June, 1978.
Two questions arise for determination namely (a) had the Plaintiff established that the Defendant has behaved in such a way that she cannot
reasonably be expected to live with the Defendant and (b) whether on the whole of the evidence it has been shown that the marriage has
broken down irretrievably. These questions will be considered together. There is no doubt that the phrase "cannot reasonably be expected to
live with the respondent" necessarily poses an objective test. In the case of Ash v. Ash (1972) 1 All ER, the facts were similar to this case, and
Bagnall J. considered in some detail the meaning of the word "petitioner" in the English Legislation. In the Botswana legislation the word is
Plaintiff, as

1979­1980 BLR p101

HAYFRON­BENJAMIN CJ
divorce actions are here brought by summons, whereas they are brought by petition in England. The learned judge said ­
"The question on which I heard considerable argument was: what is the meaning of the words "the petitioner" in para (b)? Two possible constructions were
canvassed; one which Counsel for the wife, for whose assistance I am indebted, first submitted was that "the petitioner" means the ordinary, reasonable spouse,
looked at as a petitioner. The alternative which Counsel for the wife adopted after he had resiled from his first submission was that "the petitioner" means the
particular petitioner in the case under consideration. Faced with a choice between these two meanings, I have no hesitation in adopting the latter: that is the
sense in which the words "the petitioner" are used, so it seems to me, throughout the section and that is the sense which, apart front that, I think the words
naturally bear."

It is clear from the judgment that the learned judge was persuaded to some extent to his choice of the latter construction by the declared
objects of the English legislation which had been stated in the Law Commission Report on Ground of Divorce. One of these objects quoted by
the learned Judge was
"To buttress, rather than to undermine the stability of marriage, and (b) when regrettably, a marriage has irretrievably broken down, to enable the empty legal
shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation."

Applying the later construction, the learned judge went on

"In order, therefore, to answer the question whether the petitioner can or cannot reasonably be expected to live with the respondent, in my judgement I have
to consider not only the behaviour of the respondent as alleged and established in evidence, but the character, personality, disposition and behaviour of the
petitioner. The general question may be expanded thus: can this petitioner with his or her character and personality with his or her faults and other attributes,
good and bad, and having regard to his or her behaviour during the marriage, reasonably be expected to live with this respondent? It follows that if a respondent
is seeking to resist a petition on the first ground on which the husband in this case relies, he must in his answer plead and in his evidence establish the
characteristics, faults, attributes, personality and behaviour on the part of the petitioner on whom he relies. Then, if 1 may give a few examples, it seems to me
that a violent petitioner can reasonably be expected to live with a violent respondent; a petitioner who is addicted to drink can reasonably be expected to live
with a respondent similarly addicted; a taciturn and morose spouse can reasonably be expected to live with a taciturn and morose partner; a flirtatious husband
can reasonably be expected to live with a wife who is equally susceptible

1979­1980 BLR p102

HAYFRON­BENJAMIN
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to the attractions of the opposite sex; and if each is equally bad, at any rate in similar respects, each can reasonably be expected to live with the other."
 Plaintiff, as

1979­1980 BLR p101

HAYFRON­BENJAMIN CJ
divorce actions are here brought by summons, whereas they are brought by petition in England. The learned judge said ­
"The question on which I heard considerable argument was: what is the meaning of the words "the petitioner" in para (b)? Two possible constructions were
canvassed; one which Counsel for the wife, for whose assistance I am indebted, first submitted was that "the petitioner" means the ordinary, reasonable spouse,
looked at as a petitioner. The alternative which Counsel for the wife adopted after he had resiled from his first submission was that "the petitioner" means the
particular petitioner in the case under consideration. Faced with a choice between these two meanings, I have no hesitation in adopting the latter: that is the
sense in which the words "the petitioner" are used, so it seems to me, throughout the section and that is the sense which, apart front that, I think the words
naturally bear."

It is clear from the judgment that the learned judge was persuaded to some extent to his choice of the latter construction by the declared
objects of the English legislation which had been stated in the Law Commission Report on Ground of Divorce. One of these objects quoted by
the learned Judge was
"To buttress, rather than to undermine the stability of marriage, and (b) when regrettably, a marriage has irretrievably broken down, to enable the empty legal
shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation."

Applying the later construction, the learned judge went on

"In order, therefore, to answer the question whether the petitioner can or cannot reasonably be expected to live with the respondent, in my judgement I have
to consider not only the behaviour of the respondent as alleged and established in evidence, but the character, personality, disposition and behaviour of the
petitioner. The general question may be expanded thus: can this petitioner with his or her character and personality with his or her faults and other attributes,
good and bad, and having regard to his or her behaviour during the marriage, reasonably be expected to live with this respondent? It follows that if a respondent
is seeking to resist a petition on the first ground on which the husband in this case relies, he must in his answer plead and in his evidence establish the
characteristics, faults, attributes, personality and behaviour on the part of the petitioner on whom he relies. Then, if 1 may give a few examples, it seems to me
that a violent petitioner can reasonably be expected to live with a violent respondent; a petitioner who is addicted to drink can reasonably be expected to live
with a respondent similarly addicted; a taciturn and morose spouse can reasonably be expected to live with a taciturn and morose partner; a flirtatious husband
can reasonably be expected to live with a wife who is equally susceptible

1979­1980 BLR p102

HAYFRON­BENJAMIN CJ
to the attractions of the opposite sex; and if each is equally bad, at any rate in similar respects, each can reasonably be expected to live with the other."

The unreality of the examples given by the learned judge throws considerable doubt on the validity of the construction he placed on the words.
Bedlam would result from two persons of violent temper, or two drunken sods cohabiting in the marriage state. Success in marriage is the ability
of the spouses to accommodate the faults of each other. If one spouse so conducts himself that accommodation of his or her faults by the
other is difficult, the marriage is on the way to a breakdown. There is nothing in logic or social experience to support the view that a drunken
man is likely to succeed with a drunken wife.
I am of the view that the real question is "Expected by whom?" Obviously it cannot be the Plaintiff, as that would open the door to unilateral
divorces. It is either the trial judge's or the public's view of the conduct that is the determinant. If, however, the test is an objective one, then
it must be whether the conduct is such that the Plaintiff cannot reasonably be expected by the community to which the parties belong, to
continue to live with the Defendant.
Applying this test, I have no doubt that the Defendant's conduct in this case is such that the Plaintiff cannot reasonably be expected by the
community in which they move to continue to live with the Defendant. I, therefore, pronounce the decree nisi dissolving the marriage, award
the custody of the minor child, Angela Cristine, to the Plaintiff, and order the Defendant to pay the sum of P1,00 each per year to the Plaintiff
and the minor daughter as maintenance till further order. The decree nisi may be made absolute after 6 weeks.

1979­1980 BLR p103

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 can reasonably be expected to live with a wife who is equally susceptible

1979­1980 BLR p102

HAYFRON­BENJAMIN CJ
to the attractions of the opposite sex; and if each is equally bad, at any rate in similar respects, each can reasonably be expected to live with the other."

The unreality of the examples given by the learned judge throws considerable doubt on the validity of the construction he placed on the words.
Bedlam would result from two persons of violent temper, or two drunken sods cohabiting in the marriage state. Success in marriage is the ability
of the spouses to accommodate the faults of each other. If one spouse so conducts himself that accommodation of his or her faults by the
other is difficult, the marriage is on the way to a breakdown. There is nothing in logic or social experience to support the view that a drunken
man is likely to succeed with a drunken wife.
I am of the view that the real question is "Expected by whom?" Obviously it cannot be the Plaintiff, as that would open the door to unilateral
divorces. It is either the trial judge's or the public's view of the conduct that is the determinant. If, however, the test is an objective one, then
it must be whether the conduct is such that the Plaintiff cannot reasonably be expected by the community to which the parties belong, to
continue to live with the Defendant.
Applying this test, I have no doubt that the Defendant's conduct in this case is such that the Plaintiff cannot reasonably be expected by the
community in which they move to continue to live with the Defendant. I, therefore, pronounce the decree nisi dissolving the marriage, award
the custody of the minor child, Angela Cristine, to the Plaintiff, and order the Defendant to pay the sum of P1,00 each per year to the Plaintiff
and the minor daughter as maintenance till further order. The decree nisi may be made absolute after 6 weeks.

1979­1980 BLR p103

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 and the minor daughter as maintenance till further order. The decree nisi may be made absolute after 6 weeks.

1979­1980 BLR p103

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