JUDGMENT OF FRANCOIS J.
The question for a decision is whether a petitioner for divorce can be examined on her adultery where a discretion statement has been lodged. This issue has no doubt arisen because of the paucity of matrimonial causes originating in this court with the correlated difficulties attendant on procedure. In fact, this is the first divorce suit that has come before me in this court for the past three years. The question is however resolved by reference to Rayden on Divorce (10th ed.), and I regret I have to embark on a lengthy exercise. I start with the following quotation appearing at p. 324:
[p.70]
“It is the duty of solicitors to ask the party seeking relief in a clear and unequivocal terms if he or she has been guilty of adultery. But it is frankness at the hearing which is required of the petitioner; this consideration outweighs a failure fully to disclose acts of adultery in a discretion statement.”
The case of Gillooly v. Gillooly [1950] 2 All E.R. 1118n, C.A. where a complete disclosure was made only after the case had been adjourned is in support of this point. Rayden makes the added point that where discretion is sought the petitioner should deal with the fact of her own adultery in the place in which that fact chronologically appears. Again at pp. 616-617 the learned author says:
"The proper time at which to put in the discretion statement is at the point in the petitioner's evidence of the history of the marriage where the fact of his own adultery chronologically appears. The Court of Appeal has deprecated the practice of deferring the production of the statement until after the completion of the petitioner's evidence. (Lewis v. Lewis [1958] P. 193; [1958] 1 All E.R. 589, C.A.) The petitioner must himself give evidence on oath at the hearing as to the contents of his own discretion statement, even though the suit is proceeding on the prayer of the respondent's answer, if the statement is to be admissible as evidence of his adultery. (Filmer v. Filmer [1959] 2 All E.R. 219.)"
If, as Rayden says, the question of the exercise of discretion can only arise where the court is satisfied on the evidence that the case has been proved, there clearly must be the evidence first for the rule to be applicable. In short, no evidence, no discretion.
I believe the problem has arisen mainly from the interpretation of rule 28 (5) of the Matrimonial Causes Rules, 1957 (S.I. 1957 No. 619), which states:
"(5) Neither the fact that
