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Buchler v Buchler
[1947] P 25, [1947] 1 All ER 319, 45 LGR 442, 111 JP 179, [1947] LJR 820, 91 Sol Jo 99, 176 LT
341, 63 TLR 100
Court: CA
Judgment Date: circa 1947

Catchwords & Digest

HUSBAND AND WIFE, JOINT PROPERTY AND MATRIMONIAL CAUSES - MATRIMONIAL

CAUSES AND GROUNDS FOR RELIEF - DIVORCE - IRRETRIEVABLE BREAKDOWN DESERTION AS PROOF OF IRRETRIEVABLE BREAKDOWN - CONSTRUCTIVE DESERTION
- WIFE FORCED OUT OF MATRIMONIAL HOME - GENERAL RULE
Where the desertion alleged in a petition for divorce on the ground of desertion is constructive
desertion, it is important to see that the circumstances necessary to constitute that offence are
present before the final step of dissolving the marriage is taken by the court. Incompatibility of
temperament or unhappiness in the marital relationship which is not caused by cruelty are not by
themselves grounds of divorce, nor by themselves do they entitle the spouse affected to leave the
matrimonial home and then to claim that the other spouse, even if he or she is alone to blame for
the ill-success of the marriage, has been guilty of the grave matrimonial offence of desertion. It is
as necessary in cases of constructive desertion as it is as necessary in cases of actual desertion
to prove both the factum and the animus on the part of the spouse charged with the offence of
desertion. The spouse charged must be shown to have been guilty of conduct equivalent to
'driving the other spouse away' from the matrimonial home and to have done so with the intention
of bringing the matrimonial consortium to an end. In each case the intention may be inferred if the
circumstances are such as to justify the inference. The acts alleged to be equivalent to an
expulsion of the complaining spouse must be of such gravity and so clearly established that they
can fairly be so described. If they do not satisfy this test, not only is expulsion in fact not proved,
but it is not legitimate to infer an intention to desert. A man may wish that his wife would leave
him, but such a wish, unless accompanied by conduct which the court can properly regard as
equivalent to expulsion in fact, can have no effect whatever. Conversely, where the conduct of the
required nature is established, the necessary intention is readily inferred, since no one can be
heard to say that he did not intend the natural and probable consequences of his acts. The acts
sufficient to satisfy this test must be of a serious and convincing nature, but conduct short of an
actual matrimonial offence may be sufficient. The conduct, however, must, from the very nature of
the offence of desertion, obviously be of a grave and convincing character. Whether in any given
case this requirement is fulfilled is a question of fact on which a jury would require to be carefully
directed.
A husband formed an association with one of his male farm-hands which, while in no way
sexually improper, was persisted in by the husband to the exclusion of his wife and to such an
extent as to cause her great distress and to arouse comment among friends and neighbours and
villagers who would be likely to think it had a homosexual basis. The wife continually objected to
the husband's conduct, and ultimately stated that she would leave the matrimonial home unless it
ceased. The husband replied that, if the wife did not like it, she could 'clear out.' And he persisted
in the association, with the result that she left him. On the wife's petition and the husband's cross-

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petition for divorce on the ground of desertion: Held while the husband's conduct, no doubt,
caused the wife intense unhappiness and was such that no decent man would have been guilty of
it, it did not justify her in treating it as a dismissal from the consortium and in leaving the
matrimonial home.
Cases referring to this case
Annotations: All CasesCourt: ALL COURTS
Sort by: Judgment Date (Latest First)
Treatment
Case Name
Citations
[1965] P 499, [1965] 1
All ER 838, [1965] 2
Considered
Saunders v Saunders
WLR 32, 108 Sol Jo
605
[1962] 3 All ER 518,
Considered
Hall v Hall
[1962] 1 WLR 1246,
106 Sol Jo 650
[1953] P 103, [1953] 1
All ER 910, [1953] 2
Considered
Dixon v Dixon
WLR 748, 97 Sol Jo
249
[1952] AC 525, [1952]
1 All ER 875, 116 JP
Jamieson v
Considered
226, [1952] 1 TLR 833,
Jamieson
1952 SC (HL) 44, 1952
SLT 257
[1952] P 34, [1952] 1
Considered
Lane v Lane
All ER 223n, 116 JP
72n, [1952] 1 TLR 250
[1952] 2 All ER 1035,
Bartholomew v
Considered
117 JP 35, [1952] 2
Bartholomew
TLR 934
Considered

Lane v Lane

Applied

Simpson v Simpson

Considered

Edwards v Edwards

Considered

Lauder v Lauder

[1951] P 284, [1951] 1

TLR 1125
[1951] P 320, [1951] 1
All ER 955, 115 JP
286, [1951] 1 TLR
1019
[1950] P 8, [1949] 2 All
ER 145, 47 LGR 541,
113 JP 383, [1949]
LJR 1335, 93 Sol Jo
450, 65 TLR 419
[1949] P 277, [1949] 1
All ER 76, 93 Sol Jo 42

Court

Date

P, D
and
Admlty

circa 1965

CA

circa 1962

P, D
and
Admlty

circa 1953

HL

circa 1952

CA

circa 1952

CA

circa 1952

P, D
and
Admlty

circa 1951

P, D
and
Admlty

circa 1951

CA

circa 1950

CA

circa 1949

Signal