Scottish Court of Session Decisions

The Lord Ordinary ( Adam) found the libel irrelevant, and dismissed the same. He added this note:—“In this case it is averred that the pursuer and defender were married on the 29th January 1864; that they lived together as husband and wife until the 18th December 1877; that the defender then wilfully and maliciously deserted the pursuer; that she has never seen or heard from him since his desertion; and that he has contributed nothing towards the support of her or their children. It is maintained in law that the defender having wilfully and maliciously deserted the pursuer, and persisted in his desertion for a period of more than four years, as set forth in the pursuer's condescendence, she is entitled to decree of divorce.

“It is averred in the pursuer's condescendence that the defender was convicted of larceny at Liverpool on the 10th of August 1880, and sentenced to five years' penal servitude, and that he is still undergoing this sentence in Parkhurst Prison.

The period of four years from the date of the original desertion of the pursuer by the defender did not expire till 18th December 1881. From the 10th of August 1880, however, the defender's absence was compulsory, and the question is, Whether he can be held to have been in wilful and malicious non-adherence during the whole period of four years required by law?

I do not doubt that if the defender had been convicted while still living with his wife his compulsory absence under sentence of imprisonment, although the consequence of his own fault, could not have been founded on by his wife as constituting wilful non—adherence so as to entitle her to divorce.

In this case, however, it must be assumed that the defender had wilfully and maliciously deserted his wife, and was in a course of wilful non-adherence when his conviction took place. The wilful non-adherence, however, must be continued during the whole period of four years, and if during a part of that period the absence has been compulsory, it cannot, in my opinion, be affirmed to have been wilful. It seems to be a hard case for the pursuer, as it is probable enough the defender if a free man would not have resumed cohabitation. But, on the other hand, it cannot be affirmed that if he had been a free agent he would not have repented of his desertion and returned to the society of his wife, as indeed he seems to have done more than once before. I am therefore of opinion that the action is irrelevant, and ought to be dismissed.”

The pursuer reclaimed, and argued—The defender had had at least the power, though in penal servitude, to communicate with his wife. He had not done so, and thus he showed his intention of continuing the desertion that he had already begun on 18th December 1877.

Authorities—Fraser on Husband and Wife, ii. 1213, and cases there cited; Muir v. Muir, July 19, 1879, 6 R. 1353.

No appearance was made for the defender.

The Court adhered to the interlocutor of the Lord Ordinary.