Scottish Court of Session Decisions

At advising—

Lord Justice-Clerk—In this case there are two questions raised — first, whether on the proof adultery has been proved against the wife? and second, whether if it is proved, or whether it is proved or not, the conduct of the husband has been such as to conduce to it? Something has been said about the contrariety of the two pleas, and the incompetency of pleading more than one of them. I do not, however, think there is much in that, for the woman can easily say—“I am innocent, but even if the proof of adultery is held to be sufficient, you, my husband, conduced to it.” There is no need to go strictly into this argument, and I shall deal with both pleas. On the first question, though the proof that is offered to us is certainly not of a high class, the witnesses not being of the best description, still if the case came here solely on the evidence, I should find it very difficult to come to a different conclusion to that arrived at by the Lord Ordinary. If the Lord Ordinary had found the other way, I should not have differed from him, but, as I have said, as it is I am not inclined to do so. On the second question, however, I am very strongly of opinion that I have seldom seen a case in which lenoeinium has been more strongly presented. This woman, whose former life had certainly been of a very bad description, owed a duty to her husband, and there is nothing in the evidence before us to show that she did not mean to do it. The husband, however, on his part, owed her a very special duty, considering the circumstances of her former life; as he had chosen a wife from that class, it was his special duty to protect her from outside influences and from herself. Now, it seems to me that in addition to leading a highly dissipated life, he thought fit when he was suffering from the pressure of poverty, over and over again to counsel her, in what I must characterise as the most brutal and heartless way, to return to her former life. This was not done before one witness only, but before several. If that was done before witnesses on several occasions, it is most probable that it was done several times when they were alone. After conduct of that kind I certainly am not prepared to give the husband the remedy he asks. It is perhaps true that the wife was not driven to do what she did by poverty, but her husband thought fit to withdraw from his wife his maintenance and protection, and that in such a way that she did not even know where he was. No wonder, then, that left to herself entirely she fell back into the society to which she had been accustomed before her marriage. On this ground I have no hesitation in proposing that we should alter this interlocutor. I must add that I do not differ in the least from the authorities cited to us, but when it comes to direct advice having been given to the wife to return to her former life, and that advice being given, not as a jest, but with serious intention that the woman should follow it, then I think there can be no doubt that the plea of lenocinium is applicable.

Lord Young—I am of the same opinion, and I feel no difficulty whatever about the case. I think that a man who marries a common prostitute hurriedly should not easily obtain a divorce from her on the ground of her adultery and immorality. It is not impossible that he should obtain it, but I say it as emphatically as I can that he ought not easily to do so. A divorce is not granted because of the sin of the husband or wife as the case may be. No doubt the sin of the one or the other is a necessary condition of divorce, but it is not a punishment to the guilty party but a remedy to the injured. Now, can anyone say that the pursuer here is an injured party? He married a street-walker, and lived with her a dissolute and discreditable life. After marriage it seems to have broken on the wife that her husband was impecunious, entirely dependent on his mother, and utterly incapable of supporting himself and her. When she remonstrated with him he had no hesitation in telling her to return to her old way of living, if indeed she had ever left it. For some time she had been living with certain friends of hers before her marriage, and her husband did not seem to care whether she kept virtuous or not. At last he left her because he was in poverty, and in such a condition from drink that he had been ordered away to some place in Skye for treatment. His wife then said to him, “What shall I do?” and he answered, “My mother will do something for you, but you had better return to your old ways.” I think that a man who conducts himself in that way cannot be heard when he says, “I am an injured husband.” I am very clearly of opinion that he is not entitled to appeal to a Court of Justice for a remedy. I agree with your Lordship in thinking that the evidence of adultery is the narrowest—there is absolutely no respectable evidence in the case, and such as it is, it is only the evidence of detectives set upon her by the husband's relatives. I am distinctly of opinion that such an action ought not to be sustained, and that it is not for the cause of morality that it should be. I do not like tying this man to this woman, but it is most important that men who marry prostitutes, as this man did, should not do so under the idea that they will obtain divorce as a matter of course on a proof of adultery on their part, or upon proof that in the ordinary case would suffice to obtain a divorce. I think that it is more wholesome that it should be announced that they shall not easily get divorce, and I think especially that when advice such as we have here is given, that the plea of lenocinium (though perhaps that is not a very good word) should constitute a bar to decree being granted.

Lord Craighill—I am quite of the same opinion. If the adultery was in any way conduced to by the husband he is not entitled to get his divorce; but I think that if adultery is proved against a wife, and if it is not proved that the husband is directly or indirectly answerable for it, then whether the wife was a prostitute or not, he is not to be deprived of that remedy which others enjoy. The wife is answerable for her own wrong, and if the husband has not conduced to her guilt, though she was a prostitute before her marriage, she has no right to relapse from virtue and bring forth the facts of her early life as an answer to an action of divorce.

The first question here is, whether this woman did commit adultery? Now, where a woman was of the character of this one, the circumstance that she was such has a material effect on the evidence brought forward to convict her of adultery, for that which would be conclusive proof against a person of hitherto unimpeachable character may not be conclusive against such a woman as this. It is notorious that when a woman, not a professional prostitute, goes to a brothel, it is ascribed to one purpose only, and in such a case adultery would be held to have been established. But here this woman was left by her husband with no friends in the town but those in the walk of life in which she had been before her marriage. When she went to see them there was not the same presumption against her. There is a great deal in this view certainly, but the question is, whether the evidence is all that is required. There is certainly not a strong case on the evidence, but I do not say that I feel warranted in differing from the conclusion arrived at by the Lord Ordinary, who saw and heard the witnesses give their testimony. I am far from thinking that there is a clear case of adultery made out, but I think there is sufficient to warrant the verdict that has been given. That introduces the next question, Are the circumstances such as to disentitle the husband from obtaining redress? It is not necessary for me in answering this to state an exact definition of the plea of lenoeinium, but this I may safely say, that if a husband must be held to have been in any way contributory to what ensued, the law will not interfere to give him a remedy. The circumstances here are certainly very peculiar. Take one case. In the course of a conversation between the husband and wife, in the presence of a man who had been intimate with the wife before her marriage, he advised her to go back to her former way of life. If it could be shown that this was not meant or taken seriously, of course all that could be said would be that it was a brutal and dangerous joke, but the pair came to Edinburgh, and again in the presence of the same man similar advice is given, and before the effect of the recommendation had passed away the husband left his wife without protection or means of subsistence. Might the wife not have had this advice in her mind when she returned to her former course of life? If what he said can in any way be held to have been contributory in bringing about the result, then all that is required to make me come to the same conclusion as your Lordship has been proved. I think that that is so, and therefore I agree in thinking that this divorce should not be granted.