Scottish Court of Session Decisions

Balfour for reclaimer.

At advising—

Lord President—I see no ground for differing from the Lord Ordinary. A change has been introduced, with regard to the law of desertion, by the Conjugal Rights Act. A different kind of remedy has been provided from that contemplated by the old Statute. By the first section a wife is to be entitled to an order of protection, but that is not the case before us. The kind of desertion here in question is not described in the Conjugal Rights Act at all. We must go back for a description of this species of desertion to the Act 1573, c. 55, and there the language is very explicit, for it declares that if either the husband or wife “diverts frae other's companie without are reasonable cause alledged or reduced before a judge, and remains in their malicious obstinacy be the space of foure zeires, and in the mean time refusis all privie admonitions—the husband of the wife, or the wife of the husband—from due adherence; that then the husband or the wife shall call and persew the obstinate person before the judge ordinar for adherence.” All that takes place after this is altered by the recent Statute; many of the preliminaries are dispensed with, but what I have read is still in force, and contains the species of desertion. There must be desertion without reasonable cause for four years, and during that time the husband must remain in malicious obstinacy. The question is, is this the case here? It seems to me that we have merely the element of desertion. There is no doubt of the bad habits of the husband; but his continued absence does not seem to be the result of malicious obstinacy, for he would probably be glad to come back if he had the necessary means. And where are the invitations to come here, and the complaints by the wife to the husband that he is absent from her society? There are none of these elements in this case. There is nothing but the single element of absence. I am for adhering.

Lord Curreihill concurred.

Lord Deas—Whether it would be reasonable that the wife should get divorce in such circumstances, or not, it is certainly not the law. Mere absence will not do. There may be long-continued absence without any explanation, which may give rise to the presumption that it is malicious and wilful. But this is not a case of that kind. The absence of the husband in this case is explained in a way that is not creditable to the character of the man, but it shows that his purpose is not to get quit of his wife. His habits are unsteady, and he goes and enlists in a foreign army. He knows his own weakness, and laments it. But that is not malicious desertion in the sense of the Statute. It is quite true that, as we lately held in the case of Chalmers (ante, p. 357), it will not do for a man to turn round and say,—I am willing to live with you. That is not enough. But the question is whether there is any mala fides here? I think not. It is evident, from his letter, that the man is not pretending, but is expressing his real feelings when he laments that he must live away from his wife.

Lord Ardmillan concurred.