Skinner v Skinner

• Jurisdiction: Barbados
• Judge: Williams, C.J.,Tulloch, J.
• Judgment Date: 03 March 1978
• Docket Number: No. 30 of 1977
• Date: 03 March 1978
• Court: Divisional Court (Barbados)

Divisional Court

Williams, C.J. Ag.,; Tulloch, J. (Actg.)

No. 30 of 1977

Skinner

and

Skinner

Mr. D.K. Rawlins for the appellant.

Miss C. Herbert for the respondent.

Family Law - Husband and Wife — Complaint alleging desertion and wilful neglect to provide maintenance — Order can be made if either ground proved

JUDGMENT OF THE COURT:

1 The appellant and the respondent are husband and wife and this is an appeal against the decision of a magistrate sitting at District “A” finding that the appellant had willfully neglected to provide maintenance for the respondent and ordering him to pay $10 a week for her maintenance.

2 The grounds of appeal are — and I quote counsel—

• (1) that the complaint before the Magistrate made two allegations against the appellant, desertion and wilful neglect to provide maintenance for the respondent, that the Magistrate found that there was no desertion, and that in the light of such a finding she could not lawfully make the order — not having found both charges proved;

• (2) that a complaint of wilful neglect to provide maintenance for a wife imports misconduct of a grave and weighty nature by the husband before an order against him can be justified. The submission is that on the evidence in this case no such finding could reasonably be made against the husband. Counsel also submitted that the finding by the Magistrate that the appellant had left the respondent was not maintainable;

• (3) that the conduct of the respondent showed that she was not willing to resume cohabitation with the appellant and she was thus not entitled to the order.

3 It is on paragraph 7 of the magistrate's reasons that counsel based his submission on the first ground. These were her words—

“The court took the view that a complaint alleging wilful neglect to provide maintenance, and another matrimonial offence could succeed on either ground if proved, but that the defendant, if he showed that the complainant had committed a matrimonial offence, would have a good defence. (See Matrimonial Proceedings before Magistrates by Pugh 1974 Edition at page 166). In this case, the court found the case of wilful neglect proved and ordered the defendant to pay $10 a week from 6th May, 1977 for the maintenance of the complainant.”

4 We are unable to accept from this passage that the magistrate found that the appellant had not deserted the respondent. We are also unable to accept his submission that where two grounds of complaint are put forward, both must be proved before an order for maintenance can be made.

5 As a matter of fact on both the first and the second grounds of appeal the case of Brannan v. Brannan [1973] 1 All E.R. 38 is instructive. We quote from the head note of the case –

• “(i) the complaints of desertion and willful neglect to maintain did not automatically stand or fall together; accordingly the fact that the husband had no animus deserendi did not afford him a good defence to the complaint of wilful neglect to maintain…

• (ii) the word “wilful” did not connote any malice or wickedness...