De Freitas v De Freitas

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: St. Bernard. J.A.,Davis C.J.
• Judgment Date: 29 October 1976
• Neutral Citation: AG 1976 CA 5
• Docket Number: Civil Appeal No. 12 of 1975
• Date: 29 October 1976

Court of Appeal

Davis, C.J.; Peterkin, J.A.; St. Bernard, J.A.

Civil Appeal No. 12 of 1975

De Freitas

and

De Freitas

Family law - Maintenance — Appellant refused leave to call evidence of the adultery of the respondent at the hearing of respondent's application for maintenance — Evidence of adultery on part of respondent not canvassed by appellant in earlier divorce proceedings — Appeal against decision of trial judge on ground that excluded evidence was relevant having regard to provisions of s.22(1) Matrimonial Causes Act, Cap. 52, Antigua — Whether leave to call evidence rightly refused by trial judge — Finding that conduct of parties may be canvassed in ancillary proceedings for maintenance unless such conduct can be said to be res judicata — Appeal allowed.

Practice and procedure - Family law — Ancillary Proceedings for maintenance — Whether conduct of parties not canvassed at hearing of petition for divorce may be canvassed in ancillary proceedings for maintenance — Whether such conduct can be said to be res judicata — Appeal allowed.

St. Bernard. J.A.

1 This appeal arises out of an order for maintenance far $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 All 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 h was that where a marriage had irretrievably broken down and would be dissolved there was no principle of public policy which inhibited the...