Bennett v Bennett [1969] 1 All ER 539 FULL CASE PDF

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Document (1) 1. Bennett v Bennett [1969] 1 All ER 539 Client/Matter: -NoneSearch Terms: mental disorder + voidable marriage Search Type: Natural Language Narrowed by: Content Type UK Cases

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Bennett v Bennett Overview | [1969] 1 All ER 539,

| [1969] 1 WLR 430, 113 Sol Jo 284

Bennett v Bennett [1969] 1 All ER 539

All England Law Reports > 1969 > Volume 1

PROBATE, DIVORCE AND ADMIRALTY DIVISION255 ORMROD J 30 OCTOBER 1968 30 October 1968. The following judgment was delivered. Nullity — Insanity — Wife suffering from mental disorder of such a kind as to be unfitted for marriage and the procreation of children — Subject to recurrent attacks of insanity — Mental Health Act 1959 (7 & 8 Eliz 2 c 72), s 4 — Matrimonial Causes Act 1965 (c. 72), s 9(1)(b) (ii), (iii). Petition This was a petition by the husband, Ronald Henry Bennett, for a decree of nullity against the wife, Valerie Bennett. The facts are set out in the judgment. P T H Morgan for the husband.E Campbell-Salmon for the wife. The parties were married in 1965 but were together for only short periods of time, the husband being on active service abroad and the wife remaining in England. She had been admitted to a mental hospital on two occasions prior to her marriage, once in November 1954 for about a month and again in January 1962 when she received shock treatment and was discharged a fortnight later. At the time of the marriage the husband was not aware of these facts. In November 1965, while the husband was abroad she was readmitted at her own request for a very short time, and on his return in December the doctor informed him that the wife had been having treatment in a mental hospital. He then went abroad on duty and when he returned in the middle of 1966 he did not see the wife but immediately consulted a solicitor who filed a petition for a decree of nullity on his behalf under s 9a of the Matrimonial Causes Act 1965. a

Section 9(1), so far as material provides: “… (b) that at the time of the marriage either party to the marriage—(i) was of unsound mind, or (ii) was suffering from mental disorder within the meaning of the Mental Health Act 1959 of such a kind or to such an extent as to be unfitted for marriage and the procreation of children, or (iii) was subject to recurrent attacks of insanity or epilepsy … “

Held – (i) There was no evidence that the wife had suffered from recurrent attacks of insanity within s 9(1)(b)(iii), insanity being interpreted to mean the same as unsoundness of mind in s 9(1)(b)(i) (see p 543, lettersb and g, post); and (ii) although the wife had been temporarily insane and of unsound mind for a short period of time in November 1954, having suffered from a temporary hysterical neurosis within the definition of mental disorder in s 4 of the Mental Health Act 1959, there was no evidence to show that she was suffering from a mental disorder of such kind or to such an extent as to be unfitted for marriage and the procreation of children within the meaning of s

Page 2 of 5 Bennett v Bennett [1969] 1 All ER 539 9(1)(b)(ii), and the husband's petition was therefore dismissed (see p 541, letter i, to p 542, letter a, and p 542, lettersg and h, post). NotesAs to when marriages are voidable, see 12 Halsbury's Laws (3rd Edn) 225, para 421; as to capacity to marry, see 19 Halsbury's Laws (3rd Edn) 779, 780, paras 1249–1251; and for cases on the subject, see Digest (Cont Vol A) 733–736, 3068a–3068fa. For the Mental Health Act 1959, s 4, see 39 Halsbury's Statutes (2nd Edn) 967. For the Matrimonial Causes Act 1965, s 9, see 45 Halsbury's Statutes (2nd Edn) 460. ORMROD J. This is a very sad case for which I think nobody is to be blamed. It is a petition by Mr Ronald Henry Bennett asking for a decree of nullity of marriage on the ground that at the time of the marriage the wife, Valerie, was suffering either from unsoundness of mind, or, alternatively, from a mental illness within the meaning of the Mental Health Act 1959, of such a kind as to be unfitted for marriage and the procreation of children, or, alternatively, that she was subject to fits of insanity. The wife has filed an answer denying that. This petition is therefore brought under what is now s 9 of the Matrimonial Causes Act 1965. In order to dispose of non-controversial matters first, under that section the petitioner is required, in effect, to satisfy the court of three conditions precedent to his being able to use or rely on the section: (i) that at the time of the marriage he was ignorant of the facts alleged by him; (ii) that the proceedings were instituted within a year of the marriage; and (iii), that marital intercourse had not taken place since the discovery of the ground for a decree. I am quite satisfied in this case that at the time of the marriage the husband was ignorant of the facts which he alleged; the proceedings certainly were instituted within the year, and I am satisfied that marital intercourse did not take place after he discovered the existence of the grounds for a decree, by which I understand the section to mean the existence of a remedy; and so he is within all three provisos. But the main question is whether he is within the substance of the section at all. The first ground on which it is suggested that a decree of nullity might be pronounced, and counsel for the husband very rightly in my judgment has abandoned it, is that under s 9(1)(b)(i), ie, that at the time of the marriage the wife was of unsound mind. Now the first comment I think that must be made about this section, which is a very difficult one, is that all the terminology in it, with the exception of the word “epilepsy” is legal in origin and not medical, and therefore in operating this section it is for lawyers first to define to doctors what they mean by the various phrases which occur in it, if they are to obtain from the doctors useful and helpful answers. It is not reasonable to leave doctors to define what the lawyers mean by unsoundness of mind, or any of the other matters in the section. Under the first heading—unsoundness of mind—in my judgment, since Whysall v Whysall (by his Guardian), there can be really no difference whatever between the circumstances which will found the decree of nullity under this heading of unsoundness of mind, and the grounds which would have founded the decree of nullity under the old ecclesiastical law. The test, in my view, is exactly the same and this can be seen by comparing what was said by Phillimore J, in Whysall v Whysall ([1959] 3 All ER at p 396; [1960] P at p 66.), where he said: “It seems to me that the intention of Parliament was to enable one spouse to obtain a dissolution of the marriage when the mental incapacity of the other, despite five years' treatment [because he was dealing with that sectionb] was such as to make it impossible for them to live a normal married life together and when there was no prospect of any improvement in mental health which would make it possible for them to do so in the future. The state of mind envisaged was accordingly a degree of unsoundness or incapacity of mind properly called insanity. If a practical test of the degree is required, I think it is to be found in the phrase used in s. 90 of the Lunacy Act, 1890—'incapable of managing himself and his affairs'—provided it is remembered that 'affairs' include the problems of society and of married life and that the test of ability to manage affairs is that to be required of the reasonable man. The elderly gentleman who is no longer capable of dealing with the problems of a take-over bid is not in my judgment to be condemned on that account as of 'unsound mind'.”

With the test suggested by Singleton LJ, in In the Estate of Park, Park v Park ([1953] 2 All ER 1411 at p 1430; [1954] P 112 at p 127.), where he propounds the test thus: b

Ie, s 1(1)(d) of the Matrimonial Causes Act 1950.

“The question, I think, is this. Was the deceased on the morning of May 30, 1949, capable of understanding the nature of the contract into which he was entering, or was his mental condition such that he was incapable of understanding it? In order to ascertain the nature of the contract of marriage a man must be mentally capable of appreciating that it involves the

Page 3 of 5 Bennett v Bennett [1969] 1 All ER 539 responsibilities normally attaching to marriage. Without that degree of mentality, it cannot be said that he understands the nature of the contract.”

I do not think there is any appreciable distinction or difference between those two tests, so I do not think that the first heading in this section adds anything to the old common law. Then it is said in the alternative, that the wife was suffering from a mental disorder within the meaning of the Mental Health Act 1959, of such a kind or to such an extent as to be unfitted for marriage and the procreation of children. This requires a little investigation into the history of this provision. In its original form in the Matrimonial Causes Act 1937, which was repeated with slight modifications in the Matrimonial Causes Act 1950 it read as follows, and I am now reading from the Act of 1950, s 8(1)(b): “that either party to the marriage was at the time of the marriage of unsound mind or a mental defective within the meaning of the Mental Deficiency Acts, 1913 to 1938 … “

But on the passing of the Mental Health Act 1959, that section was amended to its present form, and in its present form it seems to me to be a subsection which requires extremely careful construction and extremely careful administration, because it might easily be used to enlarge enormously the grounds for nullity unless great care is taken in its application. It is no longer a question of either unsoundness of mind, which I have dealt with, or mental deficiency within the meaning of the old Mental Deficiency Acts; it is something quite different now. The question now is, was the patient suffering from a mental disorder within s 4 of the Mental Health Act 1959, of such a kind or to such an extent as to be unfitted for marriage and the procreation of children. Now the definition of “mental disorder” in s 4 of the Mental Health Act 1959, is in very wide language indeed. It includes mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of mind and so, for the moment to turn to medical language, it clearly includes, or one would suppose it clearly includes, not only psychotic illness but neurotic illnesses as well and thus begins by enormously enlarging the field. The way in which this very large field is cut down in the Act of 1965, s 9(1)(b), is by the use of this phrase “of such a kind or to such an extent as to be unfitted for marriage and the procreation of children“. In this particular case it is clear from Dr Barker's evidence that the wife was suffering in his view from hysterical neurosis, as he called it, and therefore she comes technically within the definition of mental disorder in the Mental Health Act 1959, s 4. The question then is, what did Parliament mean by the use of the phrase, “unfitted for marriage and the procreation of children” because they are not disjunctive but conjunctive. “Unfitted” is a word which is not easy to construe. It might be given a very wide interpretation on the one hand, or a very narrow one on the other. It is quite plain, to my mind, having regard to the context in which this amendment was made, with the background of mental deficiency in mind, that Parliament cannot possibly have intended to use the word “unfitted” in an extended sense at all. This must really mean something very much like the test of unsoundness of mind although perhaps not quite the same; it really must mean something in the nature of: “Is this person capable of living in a married state, and of carrying out the ordinary duties and obligations of marriage”? I do not think it could possibly be given any wider meaning than that. In other words this comes back very much to what Phillimore J, had to say in Whysall v Whysall. I am quite unable to suggest any meaning that can be given to the phrase “unfitted for the procreation of children”—unless what is meant is unfitted to bring up children, which is not what is said. I take that subsection therefore to mean that in order to succeed the petitioner must establish “mental disorder” within the meaning of s 4 of the Act of 1959, and go on to show that as a result of such mental disorder the respondent is incapable of carrying on a normal married life, by reason of mental disorder. With that definition in mind, it is quite plain I think here, that the husband's case falls way outside the section, because it is clear from Dr Barker's evidence, which I found extremely helpful, that he was certainly not prepared to take any steps to prevent the wife getting married or even, I think, to counsel her against it, and one can very well understand why. It can only be those unfortunate people who suffer from a really serious mental disorder who can positively be stated in humane terms to be incapable of marriage. They may be thought by other people to be unfitted for marriage but there are a great many people who are successfully and happily married who would be described by many of their neighbours as unfitted to marry. In fact, in this court, one sees a great many people in the divorce jurisdiction who, it could be said loosely, are unfitted to be married. That is clearly not this case. It is perfectly plain on the evidence, to my mind, on the medical evidence and on the facts, that the wife was certainly not unfitted for marriage; that she was going to be a rather difficult person to be married to, may be, but that is a very different matter. Dr Barker said that he thought that if she had married a different husband who understood her more, the marriage might well have been perfectly successful. I have seen her letters, such as survive; they are rational, sensible and very pleasant letters, which to my mind showed no abnormality at all. It is true that she has, in the background, this tendency from time to time to over-activity and

Page 4 of 5 Bennett v Bennett [1969] 1 All ER 539 occasional acts of totally harmless violence in the way of throwing an ashtray about, but not at the husband; but there are a great many people, who are subsequently divorced in this court on the ground of cruelty, who behave in a much more bizarre fashion than that. So again, I have no doubt or hesitation whatever in saying she is not within s 9(1)(b) (ii). The question remains, therefore, is she within s 9(1) (iii)? That is, was she subject to recurrent attacks of insanity or epilepsy? I might, with all respect, observe that this is about the most awkwardly drafted provision that it is possible to imagine. First of all, insanity again is a lawyers' word and not a doctors'; it is not a diagnosis, and what “attacks of insanity” are I do not know. In the earlier version it was “fits of insanity”; now it is “attacks of insanity“. We can, of course, understand recurrent attacks of epilepsy but recurrent attacks of insanity are much more difficult. What does “insanity” mean? Again, it can only mean the same as unsoundness of mind. No distinction can be drawn between those two phrases. The question then is “Has the wife been of unsound mind within the section”? I suppose the answer to that must be that, certainly at the time of her original admission at the age of 18 to hospital on 4 November 1954, she must have been temporarily of unsound mind and therefore temporarily insane in lawyers' language. But how things have changed since lawyers invented the word “insanity” can be seen from the fact that she was discharged within just over a month, whereas one would imagine that anybody using the word “insane” would contemplate somebody so ill as to require hospital treatment for a long period. Treatment of mental illness, however, has changed and attitudes to mental illness have changed, in consequence of which the terminology has become largely obsolete which makes it extremely difficult. I would interpret insanity in this context as unsoundness of mind in exactly the same way as in s 9(1)(b) (i); and I would conclude, on the evidence, that she had had one such attack in November 1954 and possibly, I say no more, one on 17 January 1962, when she was re-admitted as an emergency admission and discharged again in about a fortnight. I say, “possibly”; I am very doubtful whether this latter could be described as an “attack of insanity” because she came in suffering from little more than feelings of tension and being excitable in her behaviour. Certainly the doctors felt that she required some further treatment and she had then four electric convulsive treatments given to her. But, again, one can get some measure of the gravity of her illness by looking at the time she was in hospital. She was thought to be perfectly well and fit to be discharged in a matter of a fortnight or thereabouts. Thereafter she attended, entirely on her own, at her own volition, the day hospital, obtaining there no doubt psychological support and some comfort perhaps from the surroundings in which she lived or where she was spending her time. There is nothing in Dr Barker's evidence at all to suggest that she was in any sense of the word of unsound mind and therefore insane during any of the periods from 1962 onwards. But it is true, as counsel for the husband rightly points out, she was re-admitted for literally one night, or maybe two nights, in November 1965, while the husband was abroad, at her own request because she was feeling tense and upset. She was tense and upset at that time because she was worried, as we can see from the correspondence, about not receiving some payments from the husband and because her mother was causing trouble about it. We see from the correspondence that this was due to a misunderstanding between all concerned and it seems to have been quite quickly smoothed over by the husband. Consequently, I do not think that the evidence establishes any more than this, that for a brief period of about a month in 1954 she was what could be described as insane for that period. Thereafter I should not be prepared to say on the evidence that it has been shown that she has been insane at all, and, consequently, there is no evidence of recurrent attacks of insanity within the meaning of the section. For those reasons I come, without the slightest hesitation, to the view that the petition in this case fails. I do not want it to be thought that I think that this was an unreasonable case from the point of view of the husband. He was a serving soldier at all material times. I have seen him in the witness box. He is a man who obviously has great difficulty in articulating his thoughts. He is, I should imagine, a man wholly any completely inexperienced in dealing with anybody of an abnormal state of mind; I use the word “abnormal”, I hasten to say, in the widest possible sense. I do not think he realised, or in the least understood, what had happened. He met the wife in the train and became, as we see from the correspondence, very fond of her, and they exchanged affectionate letters, perfectly rational letters, together for a long time. But it is obvious that he did notice from time to time that she was extremely excitable and apt to cry, and emotionally unstable, and he got worried about it. I dare say his mother also did not help much by saying that she did not want the wife brought home again, and there was trouble with the other mother, so the whole situation was rather tense. But owing to his military service they lived together only for very short periods indeed, and I think it more than likely that the truth of this case is that when he did go to see Dr Barker, in December 1965, about six months after the marriage, the fact that the wife had been having treatment in a mental hospital frightened him very much, as it does tend to frighten people who are not accustome...