Sir Gorell Barnes P set out the task of a judge saying that it is our task is jus dicere non jus dare – to state the law, not to make the law, but decried the state of family law: ‘That the present state of the English law of divorce and separation is not satisfactory can hardly be doubted. The law is full of inconsistencies, anomalies, and inequalities amounting almost to absurdities; and it does not produce desirable results in certain important respects.’
‘The order does not state upon its face the finding of fact upon which the order was made – in other words, it does not state on the face of it that the respondent had been guilty of wilful neglect to provide reasonable maintenance for the petitioner and her child, and that by such neglect he had caused her to leave and live separately and apart from him. It might be said that I could therefore ignore the order and treat it as if it had never been applied for and made, on the general principle that a Magistrate’s order ought to state the finding of fact essential to the exercise of the jurisdiction: see the observations in the case of Brown v. Brown (1898, 62 JP 711); but it is necessary to observe, first, that this point is highly technical, and, on an appeal to this Division, the defect could have been corrected, that the petitioner acted upon the order and endeavoured to enforce it, and that it was undoubtedly treated by both parties as being an effective order, and further, that in the case of Brown v. Brown the effect of the provisions of the Summary Jurisdiction Acts and of the forms which are provided for use under those Acts was not fully considered. According to s. 8 of the Act of 1895 all applications under it are to be made in accordance with the Summary Jurisdiction Acts, and, without going through the details of those Acts as they at present stand, it is sufficient to observe that the Summary Jurisdiction Rules J 886, r. 31, provided that the forms in the schedule thereto, or forms to the like effect, might be used with such variations as circumstances might require; and the forms of orders in that schedule omit to state whether the complaint is found and adjudged to be true: so that although in strictness the order ought to state the findings of fact essential to jurisdiction, having regard to the provisions of the Act and Rules to which I have just referred, I am not prepared to hold, without further argument, that this order ought to be treated as bad on the face of it. I might point out, however, that it is desirable that the practice adopted, I believe, by the Magistrates in London of stating that the cause of complaint is found to be true is desirable in order to avoid any such difficulty as arises in the present case upon this point . . ‘
Judges:
Sir Gorell Barnes P
Citations:
[1906] P 189
Jurisdiction:
England and Wales
Cited by:
Cited – Owens v Owens CA 24-Mar-2017
Unreasonable Behaviour must reach criteria
W appealed against the judge’s refusal to grant a decree of divorce. He found that the marriage had broken down irretrievably, but did not find that H had behaved iin such a way that she could not reasonably be expected to live with H.
Held: . .
Lists of cited by and citing cases may be incomplete.
Constitutional, Family
Updated: 04 May 2022; Ref: scu.581124