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Levestam v Levestam [1974] FJLawRp 9; [1974] 20 FLR 30 (13 March 1974)

[1974] 20 FLR 30

COURT OF APPEAL

Civil Jurisdiction

PETER GRAHAM LEVESTAM

v

CIWA PHILBERT LEVESTAM

Gould V. P., Marsack J.A., Haslam JA.

13th March, 1974

Husband and Wife — separation agreement — whether such agreement void as Husband and wife — evidence and proof — connivance — what must be established contrary to public policy — connivance.

Husband and wife — evidence and proof — convenience — what must be established — to prove connivance — presumption against connivance having occurred.

In order to prove connivance, it is necessary to establish that the adultery has been sanctioned or corruptly licensed. There is a presumption against connivance having occurred.

Cases referred to: Fearon v Earl of Aylesford (1884) 14 QB 792.

Appeal against E decision in the Supreme Court refusing to set aside a separation agreement.

H. A. L. Marquardt-Gray for the appellant.

R. G. Q. Kermode for the respondent.

Judgment of the Court (read by HASLAM J. A.): [13th March 1974]—

This is an appeal against a decision in the Supreme Court refusing to set aside a separation agreement upon grounds set out in para. 3 of the statement of claim, namely, that:—

"At the time that the defendant entered into the said agreement she did so with the full knowledge of the plaintiffs intention to continue illicit intercourse with one Alice Jhansen, a married woman, and the plaintiff says, therefore that the said separation agreement is void as being against public policy."

In effect, it was submitted that the agreement should have been set aside G because the respondent connived at the adultery of her husband, the plaintiff.

I now turn to the express findings of the fact on page 33 where the learned Judge said in his reasons for judgment:—

"I find that the wife was aware of the adulterous association when she became a party to the separation agreement and that she had no reason to think that it would soon cease, although it would be endowing her with prophetic foresight to say that she 'mew the plaintiff intended to continue living with Alice Jhansen."

Then further on, His Lordship's reasons continue with this finding:—

"The husband was and still is determined to live with Alice Jhansen and it is clear that the wife can do nothing about it. Her signing the agreement does not license the husband's adultery or permit its continuation. The adultery would continue whether or not the agreement was made. The impression I gathered was that up to the signing of the agreement and probably for some time thereafter, the wife was at all times ready and willing to be reconciled to a husband who clearly did not and still does want her. I find that this agreement was not contrary to public policy."

Once again, the Judge found on the facts that connivance had not been established, and this Court agrees with his conclusion. This is sufficient to dispose of the matter.

But before parting with the case, a few words should be said perhaps about the argument that was addressed to us. It may be that in the light of modern usage and phraseology, the passage in 8 Hals. Laws of England (3 Ed.), para. 230, p. 134, could with advantage be re-written, for there the author of the topic 'Contract' says:—

"Where an agreement for separation is made in the contemplation of a renewal or continuance of illicit intercourse by both parties, or by one of the parties to the knowledge of the other, it is void;"

The word 'contemplation' requires explanation and for sufficient to quote a sentence which in itself summarises its Fearon v Earl of Aylesford, (1884), 14 QB at 792, Cotton L.J. before him about the document that he was construing:—

"It is not to my mind an inducement to her to commit adultery."

Connivance in derivation connotes winking at a course of misconduct, and, even if phrases of the more rigorous Victorian age be extracted from judgment, what must be established to prove connivance is sanctioning adultery or corruptly licensing it. There is a presumption against connivance having occured.

Such being our conclusion therefore, the appeal must fail and is dismissed with costs.

Appeal dismissed.