Scottish Court of Session Decisions

This is a petition by a wife for protection of her property, presented under section 1 of the “Conjugal Rights (Scotland) Amendment Act, 1861,” on the ground that she had been deserted by her husband. The parties were married in 1849. They had both been previously married, and by his first marriage the husband had had three children, while the wife had had two by hers. Two children were born of the second marriage, one of whom still survives. The wife's first husband was a grocer and spirit dealer in Lochee, and after his death in 1848 she continued to carry on the business. At the time of the marriage the respondent Robert Kennedy was a shore porter in Dundee. On 1st April 1852 the respondent left Lochee and went to California. The business of a shore porter was not paying, and it was agreed by both husband and wife that he should try his fortune at the gold diggings. She went with him to Glasgow, from which port he sailed. The three families of children were all left with Mrs Kennedy at Lochee. She was left in possession of the stock and business of the spirit shop, and he only took with him such money as was necessary to carry him abroad. They corresponded for two and a half years, but the correspondence then ceased for eight years. It was, however, resumed in 1862, and continued until 1864. On 22d August 1864 the husband wrote to his wife that he intended to sail for Scotland on the following day, and in this letter he enclosed a bank bill for £180, a large part of his whole means, in order to secure the safety of the money in case anything should happen to himself on the voyage. Before receiving this letter, the wife had employed a law agent to present this petition, and it was presented on 21st July 1864. During her husband's absence she had saved about £400. The husband arrived in Scotland two days after his letter of 22d August, and as soon as he arrived he went to his wife's house in Lochee. Since then the parties have lived together as man and wife—he working at a trade and giving his earnings to her. The wife alleged that she consented to resume cohabitation with her husband, and to abandon this petition on his promising to sign a post-nuptial contract on certain terms. The husband, on the other hand, stated that he had never agreed to the terms which were embodied in a contract which was prepared, and that he refused to sign the contract, because it gave his wife power at any moment to turn him out of doors. The proceedings in these circumstances went on, and a proof was led, in which the circumstances which have been detailed were brought out. The parties, however, are still living together notwithstanding this litigation.

The Lord Ordinary (Barcaple) refused the petition, finding that when it was presented the petitioner was not deserted by her husband. And he further thought that, even were it otherwise, no protection should be granted in this case, because the wife was not now deserted by her husband. Section 3 of the statute provides that where the husband makes appearance the order “shall continue operative until such time as the wife shall again cohabit with her husband, or until the Lord Ordinary, upon a petition by the husband, shall be satisfied that he has ceased from his desertion, and cohabits with his wife,” in which case he is to recall the order. His Lordship did not think that the order should now be made in circumstances which in his opinion would require its recall if it had been already pronounced.

Mrs Kennedy reclaimed. She founded on the case of Turnbull, 14th Jan. 1864 ( 2 Macp. 402), and argued that, if there was desertion when the petition was presented. she was entitled to an order of protection. The Court adhered.