THE 1953 divorce case of Stephens -v- Stephens, where the husband petitioned his wife for divorce because she allegedly denied him marital intercourse, ended with the husband losing the petition and the wife saying: “I want money; not man.” The wife’s contention at the hearing was that the petitioner had formed a friendship, albeit an innocent one, with one V.F., which resulted in his having no desire to remain at home.
The decision of the court, however, was that “in Roman Dutch Law, refusal of marital intercourse, even without a withdrawal from the matrimonial home, constitutes malicious desertion.”
It further contended: “On the facts of this case, it was not satisfactorily proved that there was such a refusal or any constructive desertion by the wife.”  It was on the grounds of the foregoing considerations that the matter was dismissed.
Appearing for the petitioner was distinguished lawyer, Mr. J. O. F. Haynes, while Mr. E. W. Adams represented  the respondent.  The trial judge was Mr. Kenneth Stoby, who later became Chancellor of the Judiciary.
As Justice Stoby observed in his judgment: “This is a petition in which the husband, Herman Adolphus Stephens, seeks a dissolution of his marriage with his wife, Elsie Rubina  Stephens, on the ground of desertion.
“The parties were married on August 6, 1932 at the Ebenezer A.M.E. Church, Georgetown.   At the date of the marriage, the petitioner was 23 years of age, and the respondent 20. Before her marriage, the respondent had given birth to a child in 1930 and another in 1931; the petitioner admitted that he was  the father of these children.
“After the marriage, four children were born to them, the last being in 1941, so that over  a period  of 12 years, the wife gave birth to six children. I mention this bald fact  because a great deal of the evidence and argument centred around the alleged failure by the wife to allow full marital intercourse.
“As I do not accept  either the petitioner’s or  respondent’s evidence in its entirety, I will be compelled to  proceed on the basis  of that portion of the evidence  of each , which I believe,  and any reasonable  inference  to be drawn therefrom,  bearing in mind, that it is not for me to reconstruct  a case not presented by either side.
“Before making any specific finding of fact, I shall advert to the law applicable to this case and decide what the petitioner must prove if his petition is to succeed.
“In England Law, it is generally recognized that a comprehensive definition of desertion is not possible, and that the offence  can only be established  by reference  to the facts  of the case and the circumstances of the parties. The editor of Phillip’s Divorce Practice, 4th Edition at page 17  says: ‘Desertion arises when  there has been a willful termination of the joint  lives  of the spouses by one spouse without due cause, and without the consent of the other spouse;’ while the editors  of Rayden on Divorce,  5th  Edition, Page 101 say: ‘Desertion is the separation of one spouse from the other with  the  intention on the part of the deserting spouse of bringing cohabitation permanently to an end  without reasonable cause and without the consent of the other spouse.’
“From both these definitions, it will be seen that one of the essential factors running through the English concept of desertion is the necessity for the joint lives of the  spouses to terminate.”
Warming to the topic, Justice Stoby continued: “For the reason, perhaps,  that until 1958, desertion in England  was not an offence on which  a decree of separation could be founded,  and until 1937, it was not a matrimonial offence which,  by itself,  enabled a  spouse to obtain a decree for the dissolution of marriage, the Courts repeatedly held that the  joint lives   of spouses were not terminated, unless  there was a withdrawal from the matrimonial  home.
“Gradually, the law developed to suit changing  conditions, and  the Courts have  held  in a series  of cases that  the joint  lives can be terminated, even though  the parties are living under the same roof , provided  they are not  part of the same household.
“I am persuaded that, broadly speaking,  there is no distinction  between the English concept  of desertion  and the Roman Dutch interpretation of malicious desertion, except in this one respect,  that under the latter system,  by virtue of  a different  approach to the subject  by Dutch jurists and judges, a husband or wife who  willfully and without reasonable cause  persistently  declines  to have sexual  relationship with the other  is guilty of desertion, even though they remain under the same roof.”
Turning to the facts of the case, Justice Stoby said: “The petitioner’s case  is that,  very  early after  the marriage, dispute arose because his wife neglected her domestic duties and showed a  tendency  to be  extravagant in financial matters.
“In 1953, difficulty arose over their marital relations, as his wife became  averse  to having more children and insisted  on  coitus interruptus until 1944, when relations finally ceased.  From 1944, although living in the same house,  they never ate together, seldom spoke,  communicated with each other through the children or by writing, and the wife  constantly cursed him and did everything  to humiliate him.
“The respondent, on the other hand, insists that except for the domestic misunderstanding attendant on the average family, it was not until 1944 that  they had the first  serious quarrel over V.F.   She admits  that she first heard of the friendship in 1941, and did not approve of it  but  their marital relationship  never  changed,  except that  in 1944,  the  husband  suggested coitus interruptus.
“When the petitioner  was giving evidence,  I formed the impression that he was an astute and  fundamentally  honest man, but was not  entirely frank with regard to certain phases  of his married life.  The respondent struck me as an embittered woman who would not  flinch  from lying, not because   that is  a normal characteristic of hers, but because she wishes to hurt her husband.
“She seemed  to have learnt, somehow,  that the question of a joint life might be of importance,  and her evidence about  the latter part  of her married life  was clearly exaggerated,   as was her daughter’s.
“The truth, I think, lies  somewhere in  between.   I believe the petitioner  that  coitus  interruptus  began in 1935, for the reason  that his wife was anxious to avoid more children.   She had begun her sex life  at an early age; they were not in affluent  circumstances in the early years,  and her life must have been  a continual drudgery with little relaxation.
“I do not accept  the petitioner’s  evidence  that his wife ceased to have  anything  to do with him in 1944.  I have no  doubt that her attitude towards him  changed,  but the fault  is entirely his.     He had formed a friendship with Miss. F. in 1940,  which, it is agreed, was an innocent  friendship; he wrote poetry, and she was fond of elocution; but it is expecting  too much of a wife  for a husband to leave home regularly at night and spend his leisure hours in company with a lady,  and expect to be welcomed on his return home.
“The petitioner  was apparently being  parsimonious, and the wife, in an outburst, said she wanted money and not man.   She must not be taken too seriously.
“I  have no hesitation in finding  that this marriage has been wrecked  because of the petitioner’s friendship with V.F.   His  absence from his home  at night  made his wife sullen and resentful, so that he thought  she was disinterested  in him,  whereas the truth is that she was being consumed with jealousy.
“Had he been prepared  to sacrifice his love for poetry and elocution, the events which  culminated  in his departure from his home  may not have taken place. It is to be hoped that even now, for the sake of the children and their future, a reconciliation  might be attempted.
“The petition will be dismissed with costs.”