Bertrand De Freitas Appellant v Lorna De Freitas Respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: ST. BERNARD, J.A.,CHIEF JUSTICE
• Judgment Date: 29 October 1976
• Judgment citation (vLex): [1976] ECSC J1029-2
• Docket Number: CIVIL APPEAL NO. 12 of 1975
• Date: 29 October 1976
• Court: Court of Appeal (Antigua and Barbuda)

[1976] ECSC J1029-2

IN THE COURT OF APPEAL

Before:

The Honourable the Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Peterkin

CIVIL APPEAL NO. 12 of 1975

Between:

Bertrand De Freitas

Appellant

and

Lorna De Freitas

Respondent

Appearances:

J.E. Fuller for appellant

Justin Simon for respondent.

ST. BERNARD, J.A.

1 This appeal arises out of an order for maintenance for $175.00 per month with effect from the 1st November, 1975, against the appellant in favour of the respondent.

2 The main ground of appeal is that the trial judge excluded evidence of the conduct of the respondent which is relevant having regard to the provisions of section 22(1) of the Matrimonial Causes Act, Cap.52 of the Laws of Antigua.

3 At the hearing of the application for maintenance counsel for the appellant sought leave to call evidence of the adultery of the respondent but this leave was refused on the ground that such conduct could not be introduced at that stage for the purpose of affecting the maintenance order.

4 The respondent filed a petition for divorce against the appellant which was undefended. At the trial no question as to the respondent's adultery was raised and the petition was granted. Counsel for the appellant submitted that there was no rule of public policy whereby a husband who knew, or but for his carelessness should have known, of adultery on the part of his wife committed before the decree nisi and did not pursue that matter at the hearing of the suit is precluded from raising against her in subsequent maintenance proceedings a charge of that adultery. In support of this submission he cited the case of Tumath v. Tumath (1970) 1 A.E.R 111. He then further submitted that even if the adultery of the respondent could have been an effective bar to the granting of the petition there was no evidence before the judge that the appellant knew of the respondent's adultery before or at the time of the trial of the petition and that no discretionary statement had been filed to place the appellant on notice.

5 In reply Counsel for the respondent conceded that the conduct of the parties must be taken into account but the question was whether all conduct could be introduced at the maintenance stage. He contended that the rationale of the decision in Tumath v. Tumath was that where a marriage had irretrievably broken down and would be dissolved there was no principle of public policy which inhibited the right of the parties to bring to light in maintenance proceedings all matters relevant to the conduct of the parties whether or not they had been raised at the trial. He further contended that in the State of Antigua the grounds on which marriages may be dissolved were not the same as in England.

6 In Tumath v. Tumath all the cases dealing with the question of public policy were reviewed by the court of appeal. Most of them were decisions of courts of first instance, and although in the appeal court the judges used the expression "irretrievably broken down" they expressed the view that the earlier decisions in this respect were erroneous. Sir Gordon Willmer at page 120 states:-

"I have come to the clear conclusion that in cases, such as the present, where...