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COUSSEY v. COUSSEY


  • New
  • 1959-02-16
  • HIGH COURT
  • GLR 151152
  • Print

SARKODEE-ADDO J.


Summary

Divorce?-Application for leave to present petition within three years of marriage reasonable probability of reconciliation as criterion?-Matrimonial Causes Act, 1950, sec. 2.

Headnotes

This was a husband's application under Order 55 Rule 2(1) of the Rules of the Supreme Court for leave to present a petition for divorce within three years of marriage, which had taken place on the 28th July, 1956.The husband in his supporting affidavit deposed that he had done all that he could do to make the marriage a success, and to become reconciled; but, further, he charged the wife, inter alia, with the introduction of an illegitimate child as the husband's; with incessant booing and abuses by the wife's parents and other relatives, particularly her brothers; and also with cruelty and perverted lust.

Judgement

(His lordship stated the facts, and proceeded:-)

The question for consideration is: In what circumstances ought leave be given to a spouse to present to the Court a petition for divorce within three years of the marriage? By Section 1 of the Matrimonial Causes Act, 1937, (now repealed and replaced by Section 2 of the Matrimonial Causes Act, 1950) leave can be granted only on the ground of exceptional hardship suffered by the would-be petitioner, or on that of exceptional depravity on the part of the proposed respondent. The answer to the question, then, depends on the meaning of the word "exceptional." [p.152]

Different Judges have interpreted this provision in different ways. "Exceptional hardship" and "exceptional depravity" have been considered in Winter v. Winter ([1944] P.72), Charlesby v. Charlesby ((1947) 176 L.T. 532), Fisher v. Fisher ([1948] P.263), and Bowman v. Bowman ([1949] P.353). But these cases-and others-are merely illustrative; they are not exhaustive.

On the authorities, the really important consideration in all these cases is to see whether or not there is ?"reasonable probability of reconciliation?" before the expiration of the three years. If the husband's allegations be true, there is, it is clear, no such probability.

In all the circumstances, I feel it is a proper case in which to grant leave to present the petition within three years of the marriage. After all, the applicant's allegations against the respondent will be investigated at the hearing of the petition, and if they are untrue the petition will no doubt be dismissed.

Decision

<P>The application is granted as prayed.</P>

Plaintiff / Appellant

Amankwatia

Defendant / Respondent

Referals

(1) Winter v. Winter ([1944]) P. 72);

(2) Charlesby v. Charlesby ((1947) L.T. 532);

(3) Fisher v. Fisher ([1948] [P. 263);

(4) Bowman v. Bowman ([1949]1 P. 353).

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