Family Law Hub

VW v BH (Contested Divorce Proceedings) [2018] EWFC B68

In this contested divorce a decree nisi was granted to the wife after the judge found that the husband had been committing adultery for 25 years and the wife had only found out about it in 2017.

  • No. BV17D24036


    (Sitting at Ipswich)

    8 Arcade Street

    Ipswich IP1 1EJ

    Monday, 5 November 2018



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    B E T W E E N :

    VW (Petitioner/Respondent)

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    BH (Respondent/Petitioner)

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    MR C. McCOURT (instructed by Fisher Jones Greenwood LLP) appeared on behalf of the Petitioner/Respondent.

    THE RESPONDENT/PETITIONER appeared in Person.

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    J U D G M E N T

    This judgment was delivered in public. The Judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

    This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.


    1 This is the hearing of the divorce proceedings between VW and BH. Mr McCourt represents Ms W and Mr H represents himself. I have read a full ring binder of evidence comprising the pleadings and the witness statements prepared by and on behalf of both parties. I have heard evidence from KH, A D, CD, E D, TR, MM, FP and Ms W in support of her case and from Mr H and Ms Y in support of his.

    2 This has been an extraordinary case in very many respects as I shall return to in some detail later. The two most obviously unusual features should, however, be set out at the start. First, that this has been a three-day contested divorce trial. I understand that there are only about twenty contested divorce trials a year in this whole country. Secondly, that the respondent in these proceedings, Mr H, has contested the divorce which Ms W has brought because of his adultery despite admitting to having committed adultery for some twenty-two years of their marriage.

    The background

    3 Ms W and Mr H married on 5 March 1982 and separated in March 2017. They have three children, all now adult. On 11 August 2017 the divorce unit issued a petition filed by Ms W in which she petitioned for divorce. Her statement of case says:

    "On the morning of 8 May 2017 the respondent told the petitioner that he had been having an adulterous affair with the petitioner's closest friend over the course of the preceding twenty-five years, although in the course of that twenty-five years he had twice ended that relationship. He then went on to say that he was also having an adulterous affair with another woman whom he had recently introduced to the petitioner. The petitioner elects not to name either of these two women with whom the respondent has admitted he has committed adultery, and she does find it intolerable to live with the respondent who has moved out of the family home."

    4 On 27 September 2017, the divorce unit issued a petition for a divorce filed by Mr H. His statement of case sets out four particular allegations, the first of aggressive and unprovoked behaviour by Ms W, and he sets out four examples. The second accusing her of financial deceit by transferring monies due to him into her own account without the permission or knowledge of the petitioner. The third says that she has shown no regard to his feelings and wellbeing and illustrates it by three examples. The fourth saying that she showed little or no regard to the hygiene around the family home in relation to the dogs in the home.

    5 On 24 October 2017, the divorce unit received an acknowledgment of service form from Mr H in which he indicated that he wished to defend the divorce. He denied the adultery alleged by Ms W. He said he objected to paying the costs of Ms W's petition because he says:

    "The reason why the marriage has broken down is not through the adultery mentioned by the petitioner in her petition but because of her unreasonable behaviour as described in my own petition."

    6 Ms W then filed an answer dated 7 November 2017 in which she agreed that the marriage had irretrievably broken down but said "not on the basis pleaded by the petitioner". He wrote:

    "The petitioner cites two allegations of adultery in her petition. The first over the last twenty-five years and the other more recently. The respondent denies that he has committed adultery as alleged and denies admitting the same to the petitioner as alleged. As to the allegation spanning twenty-five years, the respondent admits he did commit adultery on a regular basis over the last twenty-two years with a woman known to the petitioner but the petitioner knew of it more than ten years ago and in that knowledge continued to live with him, although not having sexual intercourse for the last two years due to the respondent's ill health and did so for a period in excess of six months after the last act of adultery, being sometime in or around July/August 2016. As to the second allegation, this is totally denied by the respondent as it did not occur as alleged or at all."

    7 He sought the dismissal of Ms W's petition for the matter to proceed on his own petition. On the same date, Mr H filed and served a request for further and better particulars of the petition in which he sought clarification of the conversation of 8 May 2017, confirmation that Ms W knew many years previously of the alleged affair with her best friend, and confirmation that the parties had continued to live together for more than six months after Ms W knew of the affair. He wanted to know when the parties were said to have started to live separately and the facts upon which the petitioner relied to establish intolerability.

    8 On 8 December 2017, Ms W's acknowledgment of service to the answer was received by the divorce unit. She said she wished to continue to prosecute her own petition. On a date shortly after that, her acknowledgement of service to Mr H's petition was filed and Ms W said she had received that petition on 20 December and intended to defend it.

    9 On 5 January 2018, Deputy District Judge McHardy ordered that the two matters be consolidated. Shortly after that, Ms W's answer to Mr H's petition was filed, and she said:

    "I deny that I have behaved in such a way that BH cannot be expected to live with me. I specifically deny each and every allegation in the additional notes to paragraph 7.2 of his divorce petition. Our marriage broke down irretrievably for the reasons set out in my own divorce petition, namely that BH committed adultery, as admitted by him in part 3 of his answer to my divorce petition in which I relied upon his adultery, and that I find it intolerable to live with him. I do find it intolerable to live with BH. In support of my divorce petition I have filed my own statement of truth together with six witness statements. My petition preceded the respondent's petition."

    10 At the same time I believe, she sought directions for trial. Amongst other things, she says in her statement in support that the adultery she relied on first became known to her on 8 May 2017 and that she found it intolerable to live with Mr H and had not done so since 8 May 2017. She pointed out that despite having denied adultery in his acknowledgement of service form, Mr H had gone on to admit it in his answer.

    11 Directions for trial were given by District Judge Mitchell on 14 March this year at a hearing at which both parties were represented by counsel. The district judge made great efforts to bring about a settlement in the case, which was his role and his responsibility, for which he is insulted in Mr H's statement for this hearing. His directions at the end of the directions hearing were that the wife could rely on the written evidence she had already filed; that by 28 March the husband should file and serve the statements of all witnesses including himself upon which he intends to rely limited to a total of four; by 27 April the wife should serve any additional witness statements limited to issues raised by the husband in support of his petition; and that the matter should be listed for three days before a circuit judge after 18 May.

    12 Pursuant to those directions, the trial was meant to take place on 5 to 7 September but Mr H did not attend on the first day as he was in hospital. He contacted Ms Y who told the court staff that he had told her that he was attacked during the night. The information was that he had been stabbed. I have now seen the police records for that night and they are also extraordinary. Mr H has reported that he got up at 3 a.m. on what was listed as the first day of this trial and drove to his yard (which I understand is in an isolated location) where he was attacked by a man or men. Some two to two-and-a-half hours later he rang for an ambulance and was taken to hospital. He has not cooperated subsequently with the police investigation. The court had to adjourn the hearing until 1 November as Mr H was not here and he was self-representing and had been so since 24 July 2018.

    13 At the short adjournment hearing which did take place on 5 September, I gave directions for the matter to be relisted, for police disclosure about the incident on 5 September and for Mr H to disclose medical records about the incident by 21 September.

    14 Meanwhile, the financial proceedings between the parties have continued and are listed to be heard early next year, provided of course that a decree nisi is pronounced before then. There appear to have been a large number of applications and hearings in those proceedings, many related to section 37 of the Matrimonial Causes Act and injunctions, as it is Ms W's case in those proceedings that Mr H is seeking to divest himself of assets in order to deprive her of securing her share of the matrimonial assets. That will be one of the issues before my colleague judge next year.

    15 The position of the parties in these proceedings is that both seek a divorce. Ms W seeks it on Mr H's admitted adultery, Mr H wants it on behaviour by Ms W which he says is unreasonable for him to be expected to live with.

    16 On the first day of this hearing, Mr H applied for a further adjournment which I refused. I have given a separate judgment about that and do not intend to repeat it as it contains some detail. What I shall say is this, the application for an adjournment by Mr H was issued the day before this hearing was due to begin. It was not supported by medical evidence, but Mr H did produce a poorly written letter from a consultant neurologist whom he was seeing privately. The letter did not say Mr H was unable to come to court. It did not say he was unable to conduct these proceedings. Mr H told me he had been suffering from headaches, blurred vision, loss of memory and had the feeling of little explosions in his head since the alleged incident on 5 September. He told me he believed he had post-concussion syndrome. He told me he believed he had been attacked because of the weight of evidence he had recently delivered to his wife's solicitors in order to prevent him from attending this hearing.

    17 I refused the adjournment and gave, as I have said, a judgment about it. There was no medical evidence, just the inadequate letter from the doctor who did not attend court although should have done. Mr H admitted to me he was still driving and had been shooting which I considered incompatible with the symptoms he was telling me about which included blurred vision. I was not satisfied that Mr H had been attacked as he said. I do not know. I do not know if he was attacked at all or whether he arranged an attack. I thought the idea he put forward that his wife had in some way sought to have him attacked was ridiculous, not a line the police were pursuing and, in any event, was counter to Ms W's interests. The so-called evidence which Mr H referred to is not admissible in any event, as Ms W's legal team would have been well aware of.

    18 In any event, this hearing has been conducted in such a way as to make it as easy for Mr H as possible in case he did have any of the symptoms he claims to have. We have had short days and regular breaks. I have noticed no difficulty for Mr H in concentrating or remembering or putting his case. He was well-prepared with detailed notes on the evidence, knew the papers extremely well and had details in the forefront of his mind. I was clearly right to refuse the adjournment which I consider was a further attempt by Mr H to frustrate Ms W's wish to conclude the divorce and allied proceedings.

    19 This morning, the morning of the third day, when Mr H was part-way through his evidence he asked for another adjournment, this time because he wanted to collect further evidence which he is obviously not entitled to do half-way through his evidence. I refused that application.

    The law

    20 It is necessary for me to set out the law in some detail. Section 1 of the Matrimonial Causes Act 1973 sets out that the only ground for a divorce petition is the irretrievable breakdown of the marriage. Section 1(2) states that:

    "The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts [in this case], that is to say-

    "(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent..."

    21 Section 2 of the Act says that:

    "(1) One party to a marriage shall not be entitled to rely for the purposes of section 1(2)(a) above on adultery committed by the other if, after it became known to him that the other had committed that adultery, the parties have lived with each other for a period exceeding, or periods together exceeding, six months.

    (2) Where the parties to a marriage have lived with each other after it became known to one party that the other had committed adultery, but subsection (1) above does not apply, in any proceedings for divorce in which the petitioner relies on that adultery the fact that the parties have lived with each other after that time shall be disregarded in determining for the purposes of section 1(2)(a) above whether the petitioner finds it intolerable to live with the respondent."

    22 In other words, the petitioner can only rely on the fact of adultery if the parties have ceased living together by the end of six months of her discovering the act of adultery. It is important to note that each act of adultery is relevant so that when the petitioner discovers a fresh act of adultery, there is a whole new period of six months during which she can live with the respondent but still petition on the basis of that act of adultery. I do not think Mr H has grasped this fact.

    23 Another relevant part of section 1 is 1(2)(b) which sets out that a petitioner (or in this case a respondent) may satisfy the court that the petitioner has behaved in such a way that the respondent cannot reasonably be expected to live with her. Section 2(3) goes on to say:

    "Where in any proceedings for divorce the [respondent] alleges that the [petitioner] has behaved in such a way that the [respondent] cannot reasonably be expected to live with [her], but the parties to the marriage have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the [respondent] and held by the court to support his allegation, that fact shall be disregarded in determining for the purposes of section 1(2)(b) above whether the [respondent] cannot reasonably be expected to live with the [petitioner] if the length of that period or of those periods together was six months or less."

    24 This means that the respondent in this case could go on living with the petitioner for a period of six months from the date of the final act by the petitioner of which the respondent complains. It is also relevant to look at section 20 which says:

    "If in any proceedings for divorce the respondent alleges and proves any such fact as is mentioned in subsection (2) of section 1 above (treating the respondent as the petitioner and the petitioner as the respondent for the purposes of that subsection) the court may give to the respondent the relief to which he would have been entitled if he had presented a petition seeking that relief."

    25 In other words, the respondent could be entitled to a divorce as well as the petitioner.

    26 I look now at the case law on adultery. It is established law (for example in the case of Cleary v Cleary [1974] 1 WLR 73 ("Cleary")) that it is necessary for the petitioner to prove that the adultery has taken place and that she finds it intolerable to live with the respondent. It is not necessary for the adultery to be the cause of the breakdown of the marriage. In other words, the petitioner finding that it is intolerable to live with the respondent may relate to matters completely extraneous to the adultery which she alleges.

    27 The role of the court, and I now refer to the exposition of the law contained in Rayden, is to investigate on the balance of probability that the petitioner is telling the truth when she says she finds it intolerable to live with the respondent. The case of Cleary again says that the court may have regard to the history of the marriage, to the circumstances in which the adultery was committed and to the conduct of both parties before and after the commission of the adultery. The personality of the person with whom the respondent commits adultery may also be relevant. It is also important to note that the petitioner has to have knowledge of the adultery, not merely a suspicion, in order to rely on it.

    28 With regard to the case law on behaviour, in the recent case of Owens v Owens [2017] EWCA Civ.182, the then President of the Family Division said, having reviewed the authorities:

    "In the light of the authorities, I agree that the law is correctly set out in the current edition of Rayden...:

    '6.82 The words "reasonably be expected" in the statute prima facie suggest an objective test. Nevertheless, in considering what is reasonable, the court (in accordance with its duty to inquire, so far as it reasonably can, into the facts alleged) will have regard to the history of the marriage and to the individual spouses before it in assessing what is reasonable.

    6.83 Allowance will be made for the sensitive as well as for the thick-skinned and the conduct must be judged up to a point by reference to the victim's capacity for endurance, and in assessing the reasonableness of the respondent's behaviour the court would consider to what extent the respondent knew or ought reasonably to have known of that capacity.

    6.84 The approach has been summarised obiter in Balraj v Balraj:

    (i) the court has to decide the single question whether the respondent has so behaved that it is unreasonable to expect the petitioner or applicant to live with him;

    (ii) in order to decide that, it is necessary to make findings of fact as to what the respondent actually did, and findings of fact as to the impact of that conduct on the petitioner or applicant;

    (iii) there is, of course, a subjective element in the totality of the facts that are relevant to the solution, but when that subjective element has been evaluated, at the end of the day the question falls to be determined on an objective test.

    6.85 It has been said that the correct test to be applied is whether a right thinking person, looking at the particular husband and wife or civil partners, would ask whether the one could reasonably be expected to live with the other taking into account all the circumstances of the case and the respective characters and personalities of the two parties concerned.'

    36. Rayden continues, paras.6.86, 6.88:

    '6.86 Any and all behaviour may be taken into account: the court will have regard to the whole history of the relationship.

    6.88 The court will have regard to the cumulative effect of behaviour. Conduct may therefore consist of a number of acts each of which are apparently reasonable in isolation, but which taken together are such that the petitioner or applicant cannot reasonably be expected to live with the respondent.'

    37. ... What the authorities show is that, in a case such as this, the court has to evaluate what is proved to have happened (i) in the context of this marriage, (ii) looking at this wife and this husband, (iii) in the light of all the circumstances and (iv) having regard to the cumulative effect of all the respondent's conduct. The court then has to ask itself the statutory question: given all this, has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent? ...if the marriage is unhappy a particular piece of 'conduct' may have more impact and be less 'reasonable' than exactly the same conduct if the marriage is happy."

    29 The balance of probability in this case is on the person making the allegations, so Ms W has to prove that the adultery took place and that she finds it intolerable to live with Mr H, and in the context of this case that she did not live with Mr H for more than six months after finding out about the adultery. Mr H has to prove that Ms W has behaved in such a way that he cannot reasonably be expected to live with her and has to prove the allegations which appear at B21 in his petition, or indeed any of them.

    The witnesses and the evidence

    30 Mr H required all of Ms W's witnesses to attend and, if I had not intervened, would have questioned each of them for very long periods of time. He was completely unable to accept that they were not going to change their evidence under his questioning and agree with him. It was a difficult and painful experience, in my judgment, for each of Ms W's witnesses and for Ms W to observe. His cross-examination of his daughter, M, was particularly excruciating.

    The evidence of Ms R

    31 The witness statement of Ms R on behalf of Ms W sets out that Ms R is Ms W's older sister. Her statement is dated 9 December 2017 and says that in September 2017 Mr H arranged to meet her. They met on 22 September and she made notes of the conversation on the same day. She told me in her oral evidence that she used the notes when she made her statement. She reports that Mr H referred to his affair with Ms Y having ended weeks beforehand, and that thereafter Ms Y had bombarded him with telephone calls and texts, and that he was only seeing Ms N now. Mr H told Ms R that Ms W knew of the affair with Ms Y but confirmed that he had never told her. Ms R told him that Ms W had had suspicions many years ago but that she and her other sister, Jo, had reassured Ms W that her suspicions were unfounded.

    32 The conversation then moved onto Mr H saying that he had been studying divorce law and had found out that knowing of an affair for years meant a party could not rely on that in divorce proceedings, and that was what he was going to say, and he did not care about money. Mr H said to Ms R that V would end up with nothing if she did not stop consulting with her solicitor. He said that her solicitor did not know who she was dealing with, and that she would find out that she had never met a man like him before. Ms R spoke later that day with OJ, whom she terms as one of Mr H's best friends, and he confirmed to her that he had not known of the affair with Ms Y.

    33 In her oral evidence, she did not agree with any aspect of Mr H's statement that was put to her that contradicted her account and she was firm about her evidence. She agreed that there had been discussion about Mr H's wish to purchase a property called "The Grange" and that he was very angry because Ms W was preventing him from doing so. She also confirmed that he said he would bankrupt himself to prevent Ms W getting anything.

    34 I considered Ms R a straightforward witness who was able to give me an accurate account assisted by her sensible decision to take notes of the conversation with Mr H, and I accept her evidence.


    35 Mrs KH has filed a statement dated 18 December 2017. She is the former wife of the parties' son, L. She learned from L on 9 May that he had been told of his father's affairs from his mother on 8 May. Mrs KH records that she spoke with Ms W on 7 May 2010 shortly before her own wedding. Ms W had told her that she had suspected that Mr H was having an affair with Ms Y but when she questioned him about it, he had denied it.

    36 On 18 June 2017, Mrs KH went to meet Mr H at his request. He was in the motorhome upon her arrival and he was there with Ms N. Mrs KH and Mr H sat outside the motorhome and he told her about his affair with Ms Y and how difficult it has been to lead a double life for so long. He then introduced her to Ms N and said that Ms N made him happy. Mrs KH then observed the two embracing in front of her.

    37 In her oral evidence, Mrs KH was asked if she was sure that she had known nothing of the affair before 9 May and she said:

    "I am very clear. I was gobsmacked. I had not heard of the affair before. L told me he had learned the previous day too and he could not comprehend it. It was very surreal what had been disclosed to everyone."

    38 She confirmed under cross-examination that all she had said was accurate and that she had never suspected an affair after 2010. Mrs H was brave to give evidence in this unfortunate case and I believed everything she has written and said.

    The three sons of Ms Y


    39 His statement, which is filed in support of Ms W, is dated 18 December 2017. He explains that he has known the parties for most of his life and that they had been very good to Ms Y and to him and his brothers. He explains that in May 2017 he and his brothers were all summoned to his mother's home. It was not a convenient time, but his mother said he had to come. Mr H did all the talking and spoke about the close bond between him and Ms Y and about the business. When Mr D finally challenged him as to what he was getting at, Mr H admitted that Ms Y and he had been intimate and refused to apologise for it.

    40 Mr D found his attitude to be arrogant. Mr D said he had not spoken to his mother or to Mr H from that day to the date of his statement. He telephoned Ms W, whom he regards as almost a second mum, the next day and both cried. In his oral evidence, Mr D confirmed that he had not known of the affair before. He said he was living about three miles away from his mother. He thought his brothers were shocked by what Mr H said. Under questioning from Mr H, his story did not change at all. He did not agree with any of the points Mr H put to him from Mr H's own statement or that of his mother.

    41 Mr H was clearly trying to make Mr D appear to be a man without integrity, which I considered to be behaviour of which Mr H should be ashamed, but he wholly failed. I was impressed by this brave young man who felt compelled to tell the court what he knew in a very difficult situation.


    42 CD also filed a statement dated 18 December 2017. He confirms the closeness of the two families as set out by A. In his statement he says he knew that the W/H marriage was in difficulties and that Mr H had moved out into a motorhome. He then sets out what happened on 8 May and confirms A's account. He recalls saying to both Mr H and Ms Y that he was disgusted with both of them. He saw Ms W about two weeks after this and described her as shocked and angry amongst other emotions, and said:

    "I do not believe for one minute that V knew the full facts before B told her, which she said was on 8 May, the day before he and my mum set up their meeting with my brothers and me on 9 May".

    43 He acknowledged in his oral evidence that there was a mistake here as the meeting was on 8 May. When he came to court, he confirmed that his statement was completely true and that he had no inkling of an affair before that night. He explained that his mother had been insistent that he attend that evening even though it was not at all a good time for him because of work commitments. He did not agree with any of the points Mr H put to him and his account remained unchanged.

    44 Interestingly, Mr H seemed to object to Mr D referring to the business as Mr H and Ms W's business, but Mr D explained that is how he had always regarded it. He said in re-examination that when he saw Ms W a few days after 8 May:

    "She was angry at it being portrayed that she had known about it for years and it was quite clear from how she spoke that she did not. She would not have been so angry if they had known for so long."

    45 My impression of Mr CD is similar to that of AD. He was a brave and honourable young man in coming to give his evidence and I believed him.


    46 E D is the youngest of Ms Y's three children and his statement is also dated 18 December. In his statement, he confirms that he did not know of his mother's affair with Mr H until the day he was called to the meeting in May. He confirmed A's account. He contacted Ms W afterwards and saw her a few days later. He says:

    "She was still very upset. I think she needed to talk about it. I did as well. I am satisfied in my own mind that there was no way that V could have known about any of this beforehand."

    47 Mr D did not agree with any of the points Mr H put to him. He did not agree that he had been unwilling to do the statement. I was aware that E found giving evidence a difficult experience and consider he was also courageous and acting as a good citizen in doing so. I believed his evidence.

    48 All three young men confirmed that Ms W had never lied to them and I accept their evidence.


    49 Mrs M is the youngest of the parties' children. Her statement is dated 20 December 2017. She says that she found out about one of her father's affairs on 27 April 2017 when he told her about it. He had invited her to lunch and told her he had been having an affair with Ms Y for the previous twenty-five years. He said he thought Ms W knew about it, but Mrs M said she was sure that she did not.

    50 On 16 or 17 May, Mr H visited Mrs M and told her he was now in a relationship with Ms N. More recently, Mr H told Mrs M that he was living with his new girlfriend, Ms N. Mrs M says that none of her family believed Mr H was having any affair prior to April 2017. She recalls her mother phoning her on a date in early May and telling her that she had just found out that day that Mr H had been in a sexual relationship with Ms Y for many years. Mrs M said, "She was in a terrible state having only just been told".

    51 Mr H insisted on cross-examining his daughter. On continuing to do so, even when I strongly suggested to him that he needed to think about the relationships in the family after the conclusion of these proceedings, she did not agree with any of the points he made and specifically confirmed that her account of the conversation with her father on 27 April was true.

    52 Mr H said to me in his evidence that his daughter lied to the court. Mrs M, however, told me she wanted to shed some light and some truth, and in my judgment she has done so. Unfortunately and wholly unnecessarily, Mr H asked his daughter questions about herpes. Mrs M confirmed that her mother had never mentioned herpes to her and that she had not known that her father had herpes.

    53 She was quite clear to me that she did not think her mother had lied to her about any of this. She had not been emotionally blackmailed to make her statement, she said. She also denied Mr H's assertion that her memory of those events in 2017 was unsound because she had been pregnant at the time, and she told me she was a senior sister at an accident and emergency department and had been running it during her pregnancy.

    54 I very much regret that Mr H felt it appropriate to cross-examine his daughter and in such a way. Mrs M was a brave young woman, very impressive and I believe her evidence in its entirety.

    55 In case anyone is in any doubt, all these young people have been put through this ordeal because Mr H wished to challenge their evidence and to say that they were liars.


    56 Mr P has signed a statement dated 26 April 2018 in support of Ms W. He is a man who says he purchased a vehicle from Mr H in 2013 for £8,000 in cash and that he saw Mr H put the envelope of money in his pocket. He said that Ms W did not handle the money at all. Mr P attended court and was quite clear about this transaction. He did not agree with Mr H that the amount was actually some figure over £9,000. He confirmed that it was Mr H who brokered the deal and handled the transaction and that Ms W was not part of it. Mr P was very obviously a truthful witness and I accept his evidence.

    57 Before Ms W gave evidence, I gave Mr H certain ground rules in particular about treating her with respect during the questioning. To his credit, to a great extent he did so.

    Ms W

    58 Her statement is in response in the main to those of Mr H, Ms Yand Mrs ZH. It is dated 27 April 2018 and starts by saying that Mr H likes to be in control and she believed that is the reason for this extraordinary (my word) hearing. I wholeheartedly agree.

    59 She says Mr H drank to excess, which she could put up with, but she always told him that she would not accept an affair. The agreement to separate was reached on 20 March 2017 and at first the parties continued to live in The Willow but separately. He moved out at the end of April after he expressed a wish to take a young lady out for dinner which Ms W did not like. He returned each day and told her he had been with five women but did not name any. He did tell her that Ms N was his girlfriend but was not the same young lady as the one he had wanted to take out for dinner.

    60 On 8 May, Mr H told Ms W that he had been having a sexual affair with Ms Y, whom Ms W considered her closest friend, over the course of the preceding twenty-five years but that it had ended, and he was now in a relationship with Ms N.

    61 Ms W confirmed that none of the family knew prior to Mr H telling M on 27 April and herself and Ms Y's children on 8 May. Ms W agrees Mr H told her years before that he loved Ms Y, but he explained that to be in a platonic way. Over the years, they did sometimes argue about the relationship with Ms Y, but that Mr H always denied it was a sexual relationship.

    62 Ms W states and confirms by way of medical evidence that she has not had herpes. She understands from Ms Y's ex-husband that he has not had herpes either. She was not aware of Mr H having herpes and points out that his doctor's letter does not refer to him having it.

    63 She doubts the truth of the conversation Mr H alleges took place with Ms W's late mother. She denies that the incident described by Mr H, when she is meant to have referred to him carrying on with Ms Yand asked to see other men, took place. She does not agree that she placed Ms Y's hair anywhere, though agrees that it tended to get everywhere.

    64 She says there was no big row in June 2007 after a trip to Las Vegas and she did not say she would leave because of an affair. She says she did not refuse to go to a celebration in June 2007 because of an affair but because Mr H was drinking to excess. She denies that her sister J ever told her of Mr H having an affair with Ms Y, and in fact says that J used to reassure her that Ms Y would not do that to a friend.

    65 Ms W does not recall the argument which Mr H says took place in early November 2007 when he says he admitted to the affair with Ms Y. She denies punching him in the head, as he describes happening, on 5 April 2008. She denies shouting abuse at him at The A pub. She records mouthing an abusive word at him once there.

    66 She denies threatening him or Ms Y, as he says happened in 2010. She describes being assaulted by Mr H and taking photographs of the injuries thus caused. She says that is why she threw her phone away. She denies throwing hot tea over him and denies knowing he was taking Viagra.

    67 In relation to the allegation that she left him on the floor and took her dogs out rather than take him to hospital, she says that he said he needed to go to hospital and she left him in the lounge (not on the kitchen floor or any floor) to let the dogs out briefly. When she returned, he was on the kitchen floor and she took him straight to hospital. She spent all day with him there, although she agrees she did flippantly remark at an evening party about not visiting him, in fact she visited him regularly.

    68 Ms W gives a different account from Mr H of 2015 and says she worked as hard as he did at that time, that her mother died but during the period just before she died, he expected to be picked up from the pub as he was too drunk to walk.

    69 In relation to the dogs, she explained she was looking after their daughter's dog and Mr H's mother's dog and did her best to keep things hygienic, although Mrs Z H's dog did defecate in the house. She had to use the bath to wash them, but this was because Mr H had failed to install an outside shower which he had agreed to do. She explains what he says about the incident of the dog in the garage at Christmas.

    70 Ms W does not agree that Mr H told her the marriage was over on 9 March 2017 but says instead that they agreed to separate on 20 March. She says that Ms Y did not come to see her about it and that Ms W never said, "the truth will come out". She characterises such a phrase as one which Mr H tends to use.

    71 She denies having caught Mr H and Ms Y red-handed in 1998 or 2007 and comments that it was not unusual for Mr H to be upstairs in the house where Ms Y lives as that is where the office was located. He told her in late April 2017, she says, that Ms N was his girlfriend.

    72 In relation to Mr H's divorce petition, Ms W denies doing any of the things he alleges, specifically shouting abuse in public, throwing tea or his dinner at him, and punching him in the head when he was asleep. She denies being financially deceitful and says she always acted on his instructions or with his knowledge and consent. She denies fiddling anyone.

    73 She refers to the sale of the vehicle, about which Mr P gave a statement, and confirms she had no part in it. She denies ridiculing Mr H for putting bird feeders out for her mother but says he did this when it was too late for her mother to enjoy them. In relation to the Easter egg allegation, she says that all their children had told her that if Mr H was to be there, they would not come. She denies winding the children up, as Mr H alleges.

    74 As far as the dogs are concerned, Ms W describes how it was Mr H who purchased four young dogs for her within the space of two years, two poodles and two cocker spaniels (so not only dogs for people with allergies) including one in very poor condition. She tells me she always tried to clean up after them when they defecated outside or inside using proper bags to do so. She accepts the garage occasionally smelt of dog urine but did her best to keep things fresh and walk the dogs three times a day.

    75 In relation to Ms N, she says that Mr H has told her she is his girlfriend ten to fifteen times in a boatsful way. Finally, with regard to Ms W's response to the statement of Ms Y, she says, "I believed mine and U's friendship was a normal friendship". She says that occasionally she felt uneasy about the relationship, but friends and her sisters always reassured her that U would not do that to her.

    76 She disputes much of what Ms Y says, but I will only deal with the matters which I deem to be relevant. She deals with the two incidents of 1998 and 2007, which Ms Y describes as times when Ms W caught them red-handed and explains why she was not suspicious. Ms W confirms that she did have suspicions at times. She denies asking Ms Y about herpes and did not know Ms Y was infected until these proceedings and confirms she has not had such a disease. She confirms that Mr H never told her of the affair prior to May last year.

    77 Ms W refers to Ms Y's claim that Ms W's lies have caused her family to be ruined, and says, "It is B and U's actions that have caused the problems with her sons". She denies that Ms Y witnessed many rows between her and Mr H. She denies threatening Mr H or Ms Y with physical harm or with death. She accepts she made a mistake with the VAT just after the death of her mother. She explained that she had to open a savings account in her sole name because Mr H would not keep an appointment at the bank to start it up, and that Mr H was well aware of the transfers from the business into that account and that the money was used to pay for the family outgoings.

    78 Under lengthy cross-examination by Mr H, Ms W's account remained exactly the same as in her statement. She was consistent, she did not waiver and she did not express any doubts about what she had already sworn to be true. Mr H did not get her to concede one point. She told me they had been eighteen and nineteen when they got together, that Mr H was a very heavy drinker (possibly could be termed an alcoholic), with a tendency to be abusive, violent and controlling especially when in drink. She told me that the marriage, as she experienced it, was all she knew and so considered it to be normal.

    79 She agreed she had punched him in the face twice but not as he had said. She had done so when he came home very drunk and was wanting to go up the stairs to hit the children. He kept saying, "Punch me. Go on. Go on", so in order to protect her children she had done so. She said to him in cross-examination, "I'm divorcing you for adultery because I put up with abuse and drink, but I always said if you went with another woman, I would have nothing more to do with you". Of the conversation of 8 May she said:

    "On 8 May you had moved to the Hare and Hounds but kept coming back every day giving me more and more information and saying many things, but on this day I was in the garage and you started again, and you told me of the night before, and then you said, 'By the way, I've been having a sexual relationship with U for the past twenty-five years'. After 8 May, you kept going on, saying more and more and more. Being told that on 8 May was very, very upsetting. You and my best friend had done that to me. I had done everything for her. It felt like a dagger through the heart being betrayed by my husband and by my best friend."

    80 Mr H thought that there was a big success for him when Ms R and Ms W gave different evidence about when Ms W knew about her father's gun being broken. I disagree. I find it irrelevant. Ms W denies that the incident he described, in which he says the gun was broken, happened and I believe her. Therefore, the date of knowledge of when the gun was broken does not add anything to the case.

    81 Ms W was a wholly credible witness. My strong impression was that she was telling me the truth in her statement and in her oral evidence. She was wholly consistent in all she said. She did not need to remind herself of what was written; she was speaking from memory. I form the view that this case was very important to her. I am quite satisfied on reading and hearing all the evidence that Ms W's account is true.

    82 G N was not called as a witness as Mr McCourt did not seek to ask her any questions. Ms W was not seeking to prove Mr H's adultery with her. Ms N has prepared a statement in support of Mr H and has denied having a sexual relationship with Mr H. I do not think I need to say anymore.

    83 Mrs Z H, Mr H's mother, has prepared a statement but Mr McCourt, in the light of the lack of time today, sensibly did not seek to challenge this witness. I do not think her witness statement adds anything other than she describes witnessing rows between the parties which she thinks mainly related to dogs.

    Mr H

    84 His statement is dated 28 March 2018. His statement is lengthy, and most is irrelevant. He has taken diaries prepared over the years Ms W and used them to give detail to his statement and that of Ms Y and to give some semblance of authenticity by giving dates. I will only deal with matters which relate to the issues before me. Mr H says he had no intention to perjure himself in his acknowledgement of service form when he denied committing adultery, and says:

    "I am accused of having another adulterous relationship which again is not true. In my answer I then elaborated that although I had been in an adulterous relationship, which V knew about, crucially that relationship had ended after her knowledge of it. As I understand it, as we had been living together for a full six months after knowledge, she cannot rely on the past adultery as a basis for the divorce."

    85 He admits that he began a sexual relationship with Ms Y in 1995. He says that at that time the parties argued a lot and, he says, "with her always accusing me of having an affair with U, which I did not deny". He says that Ms Y gave him herpes which he gave Ms W. He says that in 2001, when Ms W was in Australia, Ms W's mother visited and said she knew he was having an affair with Ms Y and he said, "I did not confirm her thoughts".

    86 On April 14, 2006, he says that Ms W told him she was sick of him and Ms Y "carrying on" and she wanted to start seeing other people. Mr H said he had said that he had no problem with that as long as it was not done locally. There was then an occasion in late 2006 when he says Ms W referred to Ms Y as "his whore".

    87 He says that he used to return home covered in Ms Y's hair which he used to try to remove first but this became harder for him after 2004 when he said his eyes started to deteriorate. He says that from 2006 Ms W used to find the hairs and ask if they were Ms Y's, and he says she then used to leave them lying in prominent places.

    88 He says in June 2007 Ms W and he had a huge row after she - and he uses the word - "caught" him at Ms Y's home. Ms W said she was leaving because of the affair with Ms Y and then says, "I denied we were having an affair because of the children". Shortly after, Ms W refused to accompany him to a social occasion "because of my affair with U". Then, in September 2007 at a hotel, they had a row and he says:

    "As usual, she brought up U saying that I would rather be with U than her. I told her that wasn't true, but I also said that I never felt less for her than I did that day. In fact, I believed our relationship was getting worse and worse."

    89 Interestingly, he then says, "I rang U and spoke to her for a while and told her what had happened and that I was unable to keep our affair a secret for much longer". In November 2007, he says:

    "V started at me again about my relationship with U. She was saying, 'Just tell me. Just tell me. Are you having an affair with U?'. She was screaming at me, 'I just need to know'. At first, I said nothing, but when she kept on saying repeatedly, 'Just tell me. are you having an affair with U?' I said, 'Okay. Take that as a given. What do you want to do about it?'."

    90 As a result of that, he says she then raised the issue of herpes which had originated with Ms Y and he says:

    "From that day, although we had some pleasant times through the next few years, our marriage was irretrievably damaged. I had no intention of ending my affair with U and V had no intention of doing anything about it, or so I thought. However, she started collecting evidence and being financially deceitful from that time."

    91 Mr H describes an incident on 5 April 2008 when he says he was woken by Ms W punching him in the head and saying, "Go to your whore". He says that in March 2010 Ms W shouted at him at The A pub calling him a "wanker" and that this sort of thing happened on another occasion.

    92 He records a long argument in 2011 about his continuing affair with Ms Y. In 2012 in front of Ms Y he says Ms W threw a cup of hot tea over him. He then describes the incident, which I have already referred to, when he was lying in pain, he says, on the kitchen floor on 14 September 2013. Later that day, he was admitted to hospital for an emergency appendectomy, but he says that Ms W left him on the floor to walk her dogs before taking him to hospital and then did not visit him that evening.

    93 In his petition, Mr H complains about the way Ms W looked after dogs in the family home and gives details of his complaints which he dates to 2016. He also complains about the dogs of guests messing over the area in the garage where food was kept in December 2016. He particularly objected to her using the family bath to wash boarding dogs in. He says he is allergic to dogs but not poodles and she should not have allowed other dogs into the home.

    94 He says he ended the sexual relationship with Ms Y in August 2016 and refers to having erectile dysfunction at that time. In March 2017 he says he and Ms W decided to part and that they agreed to say that the split was because they had grown apart. He worried that Ms W would tell their children what he calls "the truth" so decided that he would do so first. He says that Ms W has lied when she has in effect told the children that she did not know about the affair with Ms Y until May 2017 and says that Ms W caught them red-handed on at least two occasions which he dates as the summer of 1998 and the spring of 2007. He says it is this lie which has caused untold damage.

    95 Mr H deals with the witness statements which have been filed in support of Ms W. He believes his daughter has got confused because she was pregnant and disagrees with her statement. He also blames Ms W for lying to her daughter. He thinks Ms R has given a distorted view of their conversation. He says that E's statement is not reliable as he has had injuries which effect his memory. He says that C and A's statements are factually inaccurate.

    96 In his divorce petition he says that Ms W has been financially deceitful by transferring monies due to him into her own account without his knowledge or permission. He sets out various financial deceptions which he says she is responsible for but for which he produces no supporting evidence. One of these, he said, related to cash from a vehicle sale. I mention this one because Ms W responds specifically about this.

    97 He said the final straw in his relationship with Ms W was when she started to ridicule bird feeders he had put up to please her mother who was very unwell. He deals with the allegation in his petition that Ms W had no regard for his feelings and showed this by threatening to cancel the grandchildren's Easter egg hunt if Mr H was present. This allegation appears to date to Easter 2017 which was mid-April. He says that they spoke about what he terms the "forthcoming split", but from the dates it may have already happened, and that Ms W then contacted their three adult children and she then told him they were furious with him. He says Ms W threatened to cancel the egg hunt, which I am to understand the grandchildren participated in, if Mr H stayed. He did not want to upset the grandchildren and therefore left.

    98 Mr McCourt cross-examined Mr H at length but also kept to the most relevant parts of his excessively lengthy statement. Mr H emerged from the cross-examination, and indeed from his own cross-examination of Ms W's witnesses, as a deeply dishonest man. I do not believe him about any of the matters in issue in this case. His attitudes displayed in these proceedings are those which were common forty years ago, not today. He has a minimal respect for women who are there to please him and to do his bidding. In his view of the world, marriage does not entitle a woman to anything other than what her husband chooses to give her.

    99 He is clearly proud of his excessive drinking and thought everyone occasionally gets so drunk they have no memory of what has happened. He told me that he had not told the police responsible for fire arms and shotguns about his diagnosis of post-concussion syndrome. He told me his current certificates were under review and that he had no guns in his possession, though he had access to them. He told me he was still shooting. He told me that when applying for his certificates he had lied when answering the questions about being in a happy marriage and about how much he drank, he told me everyone did that. I do not think so. I shall be writing to Essex Police about his certificates as he admitted to committing offences under section 26 and/or 29 of the Firearms Act 1968.

    100 He saw nothing wrong with having said in his statement, and indeed was proud of it, that he would have punched CD if C had said in his presence at the meeting on 8 May that he was disgusted with his mother. He completely lacked any understanding or empathy for how the young D men felt.

    101 In answer to questions from Mr McCourt, he denied he had spoken to Ms W, as alleged by her, on 8 May and could not explain the coincidence of it being that very day that Ms Y insisted all her boys came to her home so that Mr H could speak to them. He blamed his solicitor for the lie in his acknowledgment of service form. He told me all the witnesses I had heard had lied except for him.

    102 He described himself as a man of integrity and truth. He told me that Ms W had lied when calling Ms Y her best friend and said that was only the case until about 2005 or 2006. He said that in this case it was Ms W who was the big liar and she wanted to destroy Ms Y's life. He described the business as his business, not the family business, and agreed that he had increased Ms Y and Ms N's pay exponentially after the separation. He accepted that Ms W had said to KH that she had suspicions about Mr H and Ms Y in 2010 but could not explain why she would have said that if she had caught them red-handed in 1998 and 2007. He confirmed he did not tell Ms W when he was having sex with Ms Y, so I conclude that she would not know of any specific occasion.

    103 He agreed that Ms W calling him a "wanker" was not of much significance, but he said it was because she had done so in front of his friends. He could not explain why Ms Y had failed to put in her statement that she had seen Ms W throw a hot cup of tea at him. He could not explain why he had failed to put in his statement about Ms W throwing his dinner at him, both allegations in his petition, although Ms Y did put in her statement that she had seen Ms W throwing the dinner.

    104 He said that Ms W used the children against him. He did not accept what Ms W had said in her statement that she had always followed his instructions or acted with his knowledge in relation to her financial role. He agreed reluctantly that he had had access to the bank statements for the joint account out of which there were regular payments into the savings account in Ms W's name, but he says he had not looked at them over the ten years he had been receiving them. He had to accept that any cheque payable to the business would have been paid into that account (the joint account), and he would have been able to see that there were regular payments into the savings account which Ms W then used to support their household.

    105 Two things in particular puzzled me when I read the papers in this case. Why was Mr H contesting the divorce proceedings when he agreed that the marriage was over and accepted that he had been sleeping with his wife's best friend for something over twenty-two years? Even if Mr H considered that he had a technical defence to her petition, why would he be so determined that the divorce had to be on his terms? Secondly, why did Mr H, and indeed Ms Y, blame Ms W for the destruction of their family lives and attribute this to what they term Ms W's lie rather than to their affair and all the deception of so many people that such an affair involves? I am still unclear as to the explanations.

    106 Mr McCourt has suggested it is really all about money and Mr H's wish to deprive Ms W of any assets. That might be part of it. It is certainly, as I have said, in part at least about control and Mr H's need to have it. Mr H only mentioned feeling any regret once in his oral evidence and then in his closing submissions when I note his sons and Ms Y where here to hear him say it. When he did express upset in his statement that he had caused such upset to Ms W, he immediately went on to say that he had had to live with it for twenty-one years, which suggested to me that his real concern was for himself.

    107 I suspect that it is very important to Mr H how he is seen in his family and in the community. His demeanour today when his sons and Ms Y were present in court was very different from how he was on Thursday and Friday when they were not here. He spoke more than once about the importance of his reputation in the various local pubs in which he drinks, and I can only conclude that this whole awful case has been so that he can delude people into thinking his conduct was not as shameful as it indeed is, and that somehow, he and Ms Y are the victims here. Nothing could be further from the truth and I hope this judgment will clarify that for everyone.

    108 Mr H went on several times about how he had more evidence to prove his case, but I recall that until July Mr H had good solicitors acting for him. It is an easy thing to say to members of his family and his community that the system has been unfair to him. The system has been more than fair to him. He has had to follow the same rules as Ms W and has had months to prepare his case and his evidence. The court has decided this case on the evidence which has been filed and which has been heard according to court rules and directions.

    Ms Y

    109 UY has signed a statement dated 28 March 2018 in support of Mr H. It appears, and this may be significant, that Ms Y has been unable to distinguish between what she knows because she has witnessed it or been involved in it and what she thinks she knows because somebody else, usually Mr H, has told her. I am only interested in the former. She confirms that she had an affair with Mr H from 1995 until the summer of 2016. She confirms that Ms W never asked her if she was having an affair with Mr H and she never told Ms W this.

    110 She refers to what I deduce to be the two occasions which Mr H describes as them being caught red-handed by Ms W. I remind myself that Ms Y was living at X which was where the family business was also based. The first occasion was in 1998 and she says Mr H had no socks on when Ms W arrived. The other occasion was in spring 2007 when Ms W came to the door, she took some time to open the door and then did so with her hair all over the place. Mr H took longer to come downstairs. She says Ms W gave them a filthy look.

    111 She says in July 2007 Ms W asked her if she had ever had herpes. Also, in autumn of 2007, she says that Mr H told her he had finally confessed to Ms W that he had been having a sexual affair with Ms Y for the last twelve years. It is hard to understand when Ms Y suggests Ms W learned of the affair from this statement.

    112 In March 2017, she says Mr H told her he had ended his marriage. Ms Y told Ms W she was sorry to hear that, and Ms W said to her, "the truth will come out". She says that is why she and Mr H decided to tell the children about their affair. Ms Y says, "V has succeeded in ruining my family by standing by her lie that she never knew about BR and me until May 2017". As I have already said, I remain baffled as to why Ms Y and Mr H both seemed to think that their family life was ruined because of what they see as this lie rather than their own infidelity and deceptions over a period of twenty-two years.

    113 Ms Y disagrees with the statements of her three sons and blames Ms W for them having been made and for their contents. She goes on to give evidence which she hopes will support Mr H in his petition. She says she has witnessed many rows between the parties. In 2006 she saw Ms W throw Mr H's dinner at him. She says what she believes to be financial irregularities in the business which she attributes to Ms W. She refers to VAT being underpaid.

    114 Sadly, when Ms Y started her oral evidence, she did so by lying. I had told Mr H on Friday afternoon that as he was part-way through his evidence, he could not talk to anyone about the case over the weekend. Mr McCourt was rightly concerned to make sure that that guidance had been followed. Mr H told the court this morning from the witness box that he had seen Ms Y three times over the weekend. She had driven him home from court on Friday and he had seen her twice on Sunday but said that nothing significant had been said about the case.

    115 Mr McCourt started his cross-examination of Ms Y by asking her if she had seen Mr H over the weekend which he specified as being from Friday afternoon until Monday morning, and she said, "Once, briefly, on Sunday". I assume that Mr H was being accurate about the three meetings on the weekend which it appears had been observed. I therefore must conclude that Ms Y started her oral evidence by lying to the court having just taken the oath.

    116 I conclude also that Ms Y would say whatever she thinks would assist Mr H in this case. It is obvious to me that Ms Y does, and to a certain extent thinks, what Mr H wants her to. I found it most surprising that she thinks it is a fact that Ms W knew about her affair with Mr H in 2007 because Mr H told her he had told her. She said she had no reason to doubt him. She seemed to think that because there were rumours about her and Mr H in their community, that meant everyone knew. She struck me as a naive woman who has made some very odd choices.

    117 She told me each of her sons had lied in their evidence, but I am not sure what she thinks they have lied about. She told me how upset E had been before and after giving evidence and that he had suggested to her that he had not been truthful in court. However, she does not seem to be able to grasp that the unfortunate young man may be trying to salvage his important family relationships even now. She seems to be unaware that none of this case was necessary, that her children need not have been put through any of this if Mr H and she had taken a reasonable stance. I reject her evidence. She is not an honest witness nor an honest person, having clearly acted in a deceptive way for twenty-two years to those close to her and lied in her sworn evidence today. I am still puzzled as to why she thinks she is the injured party in all this.

    Conclusions, findings and decision

    118 I find there is overwhelming evidence to satisfy me that Mr H was committing adultery with Ms Y for over twenty years, but that Ms W did not know this was taking place until Mr H told her this on 8 May 2017. There were occasions when Ms W had suspicions, but these were always allayed by Mr H or by others who did not believe that Ms Y would behave in such a way. Mr H said on 11 June 2007, when Ms W asked him if he was having an affair with Ms Y, that he denied it to her.

    119 Ms Y says that in the autumn of that year, Mr H told her he had confessed the affair to Ms W. I do not know if Mr H said this to Ms Y or whether she has made it up. Mr H does not mention it in his statement that he had this conversation with Ms Y. I do find that if Mr H did say this to Ms Y, it was not true. Ms Y does not claim that she ever told Ms W either and agrees it was never discussed between them. She says that she could sense that Ms W knew, but that is not good enough by a long way.

    120 Ms W clearly had not caught Mr H and Ms Y red-handed in 2007 because if she had she would not have sought reassurance from K in 2010 because she had suspicions of an affair. The earlier occasion was in 1998 and I prefer Ms W's account that she did not notice anything untoward on any occasion at that time.

    121 As I have said when discussing the law, suspicion of adultery is not sufficient to be the basis of a petition of divorce. There were times when Ms W was suspicious, but she did not get beyond suspicion until 8 May 2017. Most importantly, I consider Ms W to be a witness of truth and there is no evidence of any dishonesty on her part in relation to her marriage or business affairs or in her relationships with any of the people involved in this case.

    122 In contrast, Mr H has lied throughout his marriage to his wife and been deceitful to his children, to Ms Y's family and to other members of their families. He has lied throughout these proceedings. The conversation on 8 May clearly happened and it was on that occasion I find for the first time Ms W learned of the adultery. The evidence of the meeting urgently called by Ms Y for that evening where she insisted her three children attended supports that conclusion. It was important to Mr H, and I presume to Ms Y, that they told the three D men their story before they heard it from Ms W, or anyone else she confided in, because Ms W had learned of it that morning. There is no other explanation for that evening's events which I find credible.

    123 It is relevant that none of the family members or friends of these parties were aware of the adulterous relationship. Mr H has tried to run the case both that nobody else knew and that other people did know. I find that no one else knew as I believe the witnesses who have come to tell me this. No witness has been produced who says that they did know.

    124 Mr H has not said in his evidence that he readily admitted the adulterous relationship to Ms W. His case goes no higher than that he confirmed her fears on a couple of occasions. I do not believe Mr H when he says even this. If his case is that nobody should be concerned for Ms W's feelings because she knew, I also do not understand why he did not therefore tell her fully and frankly. It makes no sense.

    125 He said to me that from 2007, when he says Ms W knew, she wanted and, he implied, was planning for a divorce but could give me no explanation as to why she did not do it. His statement is full of descriptions about how unhappy Ms W was about her suspicions and in the marriage but, yet, he thinks the family should blame Ms W for what has happened because she "knew" and she "lied". Even if she did know, which she did not, I do not understand why Mr H and Ms Y believe they would look any better in the eyes of their children for making Ms W so unhappy for so long.

    126 Mr H explicitly told me today that he did not tell Ms W of any occasion when he had been having sex with Ms Y. He continued to lie about only being over at Ms Y's for thirty minutes when in fact he had been there much longer. He told me this was to spare Ms W's feelings, and I understand that, however what he forgets is that each act of adultery gives rise to a petition, so even if Ms W knew of an affair in 2007, which I find she did not, him telling her that he last slept with Ms Y in 2016, which he appears to agree he said in 2017, would give rise to a six-month period from that conversation during which Ms W could petition for adultery whilst living with him, so this whole case has been pointless.

    127 Mr H's whole case has indeed been completely futile, a huge waste of money, a tragic destruction of family relationships, and all, in my opinion, to satisfy Mr H's own vanity and need to be in control and for the other reasons I have suggested earlier. All he had to do was to not contest the divorce, a divorce he wanted, as virtually everybody else in the country does, and this couple would have had their decree nisi last year, the various relationships would, in all likelihood, have been well on the way to healing by now and the money saved for the family.

    128 Clearly, this marriage has broken down irretrievably, which is agreed. I find that Ms W finds it intolerable to live with Mr H and indeed has not done so since discovering the adultery which he has committed. I believe her when she told me that she has always been clear with Mr H that she would put up with a lot but not with an affair.

    129 I find therefore that Ms W has proven her case and is entitled to a decree nisi on the basis that the marriage has irretrievably broken down, and that Mr H has committed adultery, that she finds it intolerable to live with him and that she has not lived with Mr H at all from the date of her knowledge of that adultery, being 8 May 2017. I pronounce decree nisi on Ms W's petition.

    130 As to Mr H's allegations, not one of them stands up. I do not find any truth in any of them. I find that Ms W has not behaved in the way alleged by Mr H at all. I prefer her evidence and that of her witnesses on each of the allegations. Specifically, I do not find that Mr H has been subjected to aggressive and unprovoked behaviour during the last ten years of the marriage. The examples Mr H cites, I find, did not happen. The alleged shouting of abuse in the pub, I find, was as Ms W said; she mouthed an abusive word when sorely provoked by Mr H.

    131 I dismiss the allegation that she threw hot tea at him which Mr H says was witnessed by Ms Y but of which Ms Y gives no evidence. I do not find that Ms W threw his dinner at him on numerous occasions or at all, and Mr H fails to give any evidence of this in his witness statement, though Ms Y does in hers. I do not believe the allegation nor Ms Y. I do not find that Ms W woke Mr H at any time by punching him in the head. Mr H is not a witness of truth and I prefer the evidence of Ms W that this did not happen, and my assessment of Ms W is that she did not do such a thing.

    132 As far as financial deceit is concerned, there is no evidence of this. Ms W says that any transactions that she carried out were either with Mr H's knowledge or on his instructions, and I believe her. I think it likely that Mr H is making false allegations for his own purposes, presumably to use in the financial remedy proceedings. As for the example of the sale of the vehicle to Mr P, I prefer the evidence of Mr P, a clearly straightforward gentleman, and that of Ms W to that of Mr H who, as I have said, is a dishonest witness.

    133 I do not accept Mr H's story of the occasion when he had appendicitis. It was obviously sensible and reasonable for Ms W, who was going to be at the hospital for much of the day, to let her dogs out before she took him to hospital, and I do not believe Mr H that he was lying on the kitchen floor when she did this. I prefer Ms W's account that he was in the lounge when she left him to let the dogs out. I also accept her evidence that she stayed with him all day at hospital and then visited him for the rest of his stay.

    134 She did not, I find, belittle his belated efforts to provide his mother-in-law with comfort by putting up bird feeders. The allegation about the Easter egg hunt is hardly the stuff of a behaviour petition and, in any event, I accept the evidence of Ms W that the parents of their grandchildren did not want Mr H at that event at that time as the separation had just taken place and the family were upset with Mr H.

    135 The final allegations about the dogs does not stand up. Mr H purchased dogs for Ms W, more than she wanted, I find. He also knows and clearly approves of her running a dog business. Dogs do need to urinate and defecate in the garden and I accept Ms W's evidence that she took all efforts to clean up after them and keep the property in a good condition as far as the dogs are concerned.

    136 It is also relevant to say that, as Mr McCourt submitted, it is hard to see how much of the particulars which Mr H sets out would have upset this particular man, a man who regularly drinks to excess, who told me he used much more foul language than that alleged here, and to accept that he can be violent. I do not think that Ms W has behaved in such a way that Mr H cannot be reasonably expected to live with her. I dismiss his petition.

    137 There is one further matter, Ms W's diaries. Mr H took them and now says they belong to the business. He has brought them to court, as I directed, and Ms W has examined them this morning and seen that Mr H has since written in them as if he had done so contemporaneously. I do not accept what Mr H says about the ownership of the diaries. It matters not who brought the physical paper. I prefer Ms W's evidence that she completed them and that much that is in them relates to personal matters much more than business matters. They are to be returned to her, not given to Mr H who had no right in law to remove them from Ms W, and to retain them. If he requires photocopies of any particular page for business purposes, he can ask for them and he can be provided with such at his expense.


    138 I agree with Mr McCourt's application about costs, that Mr H should pay Ms W's costs of prosecuting her petition and defending his petition. I agree this should be on an indemnity basis because of the totally unnecessary proceedings that have taken place, a huge amount of costs which have been made much more expensive than they needed to be because of decisions taken by Mr H.

Judgment, published: 28/11/2018


Published: 28/11/2018


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