Scottish Court of Session Decisions

This was an action of divorce by a husband against a wife for desertion. The facts, so far as material, are fully set forth in the opinion of the Lord Ordinary.

Opinion.—“This is a case which appears to me difficult, and also important in regard to the law of divorce for desertion. It is undefended, and I cannot say what my judgment might have been had the defender appeared and resisted the conclusions of the summons, and stated and supported her grounds of defence. But I am, as matters stand, left to judge of her conduct from the statements of the pursuer, which, however, appear to be frank and apparently honest. I have carefully studied all the recent cases which bear on the points raised in this case, and have ultimately come to an opinion in favour of the pursuer, and, as the case will therefore not go further, I think it sufficient to express my opinion shortly.

The pursuer and defender were married in 1869, when he was twenty-three and she twenty-one. In 1870 the pursuer was struck with paralysis. They lived together until the spring of 1878, when the defender deserted the pursuer, without, according to his account, any just reason. Her letters seem to indicate that she considered that she had reason to complain of his treatment of her. But she has not appeared in the cause to substantiate these reasons. He made several endeavours, extending over more than two years, to induce her to return, but met with nothing but refusals, expressed on the last occasion in a letter written by the defender's sister in peremptory and even coarse language. This was in November 1881, after which the pursuer seems to have lost sight of her until he learned that she had gone to America, and he had no communication with her until 4th November 1898, twenty years after her desertion, when he received a letter from her, which is, I think, a good deal to her credit. It is expressed in very friendly terms, but it does not offer to resume cohabitation, and does not explain her long absence. The pursuer's response to the defender's advances was anything but cordial, and after some other letters and meetings she wrote the letter dated 7th August 1889, in which she concludes by saying—“I am still willing on my part to take up my conjugal duties as soon as you on your part agree to the same.” He replied on 9th August 1889 in a letter which is not particularly satisfactory, and certainly is not an agreement to resume cohabitation. There were no more meetings or letters, and in April 1900 this action was raised.

Had the case depended on these letters only I should have felt even greater difficulty than I entertain. But from the evidence it appears that when they met the pursuer asked the defender to explain what she had been doing during the twenty years of her absence—certainly a most legitimate inquiry for a husband to make— but that she seemed to take offence and would give no explanation; so that as the case is laid before me her offer to resume cohabitation was practically coupled with the condition that she was not to explain her behaviour and mode of life during her absence. If that was so, it was not, in my judgment, a reasonable offer of adherence, or an offer with which the pursuer was bound to be content or to accept. Again, I say that the case might have assumed quite a different complexion had the defender appeared and told her own story. But on the evidence as I have it that was the footing on which they parted.

The pursuer was perfectly frank in his evidence. He said he was willing to receive his wife back if she informed him about her life during the twenty years of her absence, otherwise he was not; and that he wished a divorce in order to prevent her from succeeding to his money to which he had recently succeeded, and which he said he would rather leave to the Infirmary.

In that state of the facts the question whether the pursuer is entitled to decree of divorce is attended with difficulty. If it depended on the old Act 1573, cap. 55, it is not very easy to see that it could have been granted. But, in my opinion, the alteration effected by the 11th section of the Conjugal Rights (Scotland) Amendment Act 1861, makes a material difference. On the other hand, I am not able to assent to what I understand to be the contention of the pursuer, that after so long an absence an offer to adhere comes too late—a contention supported by the cases of Mair v. Mair, July 19, 1879, 6 R. 1355, and Winchcombe v. Winchcombe, May 24, 1881, 8 R. 726. The authority of these cases is, however, greatly affected by the case of Auld v. Auld, October 31, 1884, 12 R. 36, and by many of the dicta in Watson v. Watson, March 20, 1890, 17 R. 736, and in Mackenzie v. Mackenzie, May 16, 1895, 22 R. (H.L.) 32; and I am disposed to think that it is never too late for the defender in an action of divorce for desertion to offer to adhere if the offer be sincere and be not accompanied

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with unreasonable conditions. But if it be such an offer as the deserted spouse cannot reasonably be expected to accept, then it will not form a defence to an action of divorce otherwise well founded.

I think it proved in this case that in 1878 the defender maliciously deserted her husband without reasonable cause, and continued in malicious desertion for twenty years, seeing that she has not appeared to put any other colour on her conduct. If the law requires (which I doubt) that the pursuer should call on her to resume cohabitation, then he did so at intervals for two years and a half; and when she offers to resume cohabitation without full explanations as to her absence, which I take her offer to have been, then I think that was not a reasonable offer with which any husband could be expected to be satisfied. It may have been the law that the pursuer of a divorce was to be held as at all times ready to adhere, but I am of opinion that that cannot be held to be the law since the Conjugal Rights (Scotland) Amendment Act was passed.”