Scottish Court of Session Decisions

This was an action of divorce on the ground of desertion at the instance of Mrs E. J. Barr or Winchcombe against her husband H. H. Winchcombe. The pursuer averred that she had been deserted by the defender in the year 1870, and that she had not since seen him nor been asked by him to return to cohabitation. The defender appeared at the diet of proof fixed by the Lord Ordinary, and tendered defences at the bar, in which he stated that the cause of his separation from his wife was the interference of her relatives, who had persuaded her to leave his house and take up her abode with an aunt; that he was now resident in France, whence—and also from Cardiff, at which place he had resided for a short time about 1873—he had addressed to her several letters asking her to return to him. He further averred that in the year 1880, before this action was raised, he had written two letters to his wife's agents making offers of reconciliation. These two letters were produced in process. He did not appear to depone at an adjourned diet of proof, nor was any evidence led for him. The pursuer deponed that he had deserted her in Greenock in 1870 after selling all the house-hold furniture, and that since then she had resided with her relatives, and supported herself and the child of the marriage by her own exertions. She also deponed that she had had no communication from him since that time. In answer to questions by the defender's counsel as to whether she had been willing in 1870 to adhere to him, she deponed that she was not, because he had treated her with such violence that she was afraid of him, but that had she felt herself safe from violent treatment by him she would have been willing to go back to him. Further, she deponed—“I am not now willing to adhere to him if he is willing to take me back.”

The Lord Ordinary ( Adam) assoilzied the defender, adding this note to his interlocutor:—“The Lord Ordinary does not doubt that the defender deserted the pursuer in May 1870, and has remained away from her ever since, without contributing to her support or to that of their son. Prima facie that state of matters would appear to entitle her to divorce, but it also appears that she is not, and never has been, willing that the cohabitation between them should be resumed, the reason being that while they lived together he had behaved to her with great cruelty. In other words, she acquiesced in the separation. It may seem to be a hard state of the law that she would have been entitled to divorce had he not behaved cruelly to her, but having behaved so cruelly to her that she is glad to get rid of him, she is not entitled to divorce.

“The law, however, afforded her another remedy, that of separation.

It appears to the Lord Ordinary that prior to the change of procedure introduced by the 11th section of the Conjugal Rights Act, the pursuer could not have been in a position to institute an action of divorce.

She was not willing to adhere, and in her frame of mind could not have taken active steps by raising an action of adherence against her husband, and adopting the other procedure required by the Act of 1873 to compel him to adhere, which were necessary preliminaries to an action of divorce, and without which the deserting spouse was not in a state of wilful and malicious non-adherence. It is clear that there was required not only desertion on the part of one of the spouses, but also a willingness to adhere, or rather a desire for adherence, on the part of the other.

The Lord Ordinary thinks that the first of these elements is present in this case, but not the latter. He does not think that any change of the law in this respect was intended to be made, or has been made by the Conjugal Rights Act.— Bowman v. Bowman, Feb. 7, 1866, 4 Macph. 384; Muir v. Muir, July 19, 1879, 6 R. 1353.”

The pursuer reclaimed, and argued—That the case was not ruled by that of Bowman, quoted by the Lord Ordinary. The very circumstances of the present case were there foreshadowed, in the opinion of Lord Deas, who did not hold that case to decide that a wife whose husband had gone away and not contributed anything for years to her support was barred from a divorce for desertion merely because at the time he went away she had been obliged to leave him for an interval owing to his cruelty.

Argued for defender—The Conjugal Rights Act of 1861 (24 and 25 Vict. cap. 86), abolished the old forms of procedure, but did not alter the legal position of the parties. These proceedings under the old law necessarily implied willingness to adhere, and that was just what the pursuer had not.