Scottish Court of Session Decisions

Lord President.—This is an action of divorce at the instance of the husband on the ground of adultery; the fact of adultery is admitted; and the only ground on which the wife argues that decree should not be pronounced is her plea of lenocinium. The facts on which the plea is founded are these:—The parties were married in 1898, and after a short time the marriage was not a very happy one. Both parties seem to have been in fault. The husband seems to have been unfaithful, and the wife was addicted to drink. It is quite clear that for some time previous to the events to which I am going to refer, the two had lost all affection for each other; and, so far as the pursuer was concerned, he would have been pleased if the marriage relationship between them came to an end.

The defender had formed an intimacy with another person, whom she had met at Perth originally, and with whom for some time she had carried on a correspondence. This correspondence does not seem to have been of a very intimate character. It was carried on for the most part on post-cards. A large number of these have been recovered, and are produced in the case; but they contain nothing which is not of the most innocent description. I do not think that any impression could be drawn from the post-cards adversely to the parties. I also think it is the case that for some time at least the pursuer did not know that this post-card correspondence was going on, although at the end he did know that his wife was receiving communications from a man whom he did not know, but about whom he had heard.

The defender had been in the habit of leaving the family home at Portobello and going away for week-end visits; and, prior to the events I am coming to, the defender had gone away for a week-end visit, and it had come to the pursuer's knowledge that she had deceived him as to the place where she had been. It is only human experience to suppose that if a man's wife says that she is going for a visit to one place and goes to another, there is some motive for her doing so, and that the motive is likely to be not a very good one. Accordingly, the pursuer's suspicions were aroused. They were still further aroused by a communication which he received from his sister-in-law to the effect that his wife had received an invitation to visit, or at least to go and see, this acquaintance whom he did not know, and who was staying at a considerable distance. There, again, it is human nature to suppose that a man would have suspicions if his wife, concealing the fact from him, went to visit a man in a far distant town, and he would think she went there for no good purpose. That his suspicions were aroused by this communication is certain, for he went to consult his agents and made arrangements for having his wife watched. In these circumstances the defender came to the pursuer and said that she wanted to go to Stirling for the week-end, and asked for money. The pursuer gave her

£2. The defender had had a sort of warning from her mother, who had got an inkling of what the pursuer was about in setting people to watch his wife, and had advised her daughter not to go away, because she was being watched. This had caused an uncomfortable feeling in the defender's mind, and she asked her husband,—“Should I go?” and he said “Yes, certainly go.”

The defender was watched, she went to Gateshead, and there the adultery admittedly took place. She did not come straight back from Gateshead to Portobello, but went first to Cambusbarron, near Stirling, from which place she returned home.

It was argued for the defender that these facts disclosed a case of lenocinium:and it was maintained that what was proof of lenocinium was in each case a matter of circumstances. In this case the defender relied in particular on two facts:—(1) that the pursuer gave the defender a sum of money to enable her to carry out her purpose, and (2) that he encouraged her by the expression “Yes, certainly go.”

I think I should here leave the facts and consider the law in regard to lenocinium. I do not think that the difficulties of the question can be put in more appropriate language than is done by Lord Fraser in his treatise on the Law of Husband and Wife (p. 1186). The title under which it is dealt with is Connivance or Lenocinium, and the heading of the passage is,—“Not Connivance if the Husband watch his Wife, whom he suspects.’ Lord Fraser says,—“The difficulty is to determine when a husband's conduct ceases to be suspicious and justifiable watchfulness and becomes acquiescence. The husband's suspicions may be aroused, but it is no connivance on his part though he do not disclose his suspicions to his wife. He is entitled to observe her and to track her proceedings, and it is not concurrence in her guilt because he does not tell her what he is doing, and favour her with admonitions. It is possible that a hint from him as to his suspicions might have saved her; but it is not connivance though he did not utter it. It is only where the husband goes beyond this, and gives facilities for the commission of the offence, and creates opportunities, that he is held to connive and to concur. His connivance then involves criminality, because that connivance occasioned or allowed the adultery to take place.” I think these words are a very accurate statement of our law, and that the difficulty arises in the application of the law to each particular state of facts. The same view is supported by the opinion of one who, though not a jurist, is considered an authority on this matter. I refer to the opinion of Sanchez, which is quoted by Lord Fraser on p. 1187 of his work, and is as follows:—“Sed an liceat eo fine offerre occasionem uxori ut adulteratur?” Which question he answers in the negative—“Quia id non solum est permittere sed cooperari et positive concurrere.”

Now, it seems to me that two things are clear. The one is that no Judge will do well by trying to frame a definition of what amounts to lenocinium, because each case really depends on its own facts, and it would be impossible to frame a definition which comprehended all cases. The other is, that there must be something on the husband's part of an active character. “Cooperari et positive concurrere,” says Sanchez, and I think that is an accurate description of our law.

I am aware that in another portion of Lord Fraser's work he says that “Passive acquiescence will be sufficient to bar the husband, provided it appears to be done with the intention and in the expectation that the wife would commit the crime” (p. 1186), and he quotes a passage from Lord Stowell's opinion in the case of Walker to the same effect.

It has been pointed out by Lord President Inglis in Wemyss that the English doctrine on this matter has not the same historical origin as the Scots doctrine, and one cannot therefore say that an English authority is to be cited as a Scots authority might be, although the two doctrines come very near one another in practical application. After all, the distinction comes to be nearly a question of words. If I may use an expression which seems like a contradiction in terms, I would say that there is a sort of passive acquiescence which is equivalent to active acquiescence. To explain, I may take an analogy from another branch of law which is very familiar to us. There are certain cases where, for instance, in the negotiations for a contract, there is a relation between two parties which puts on one of them a duty of disclosure to the other, and if he fails to discharge this duty, the contract will be set aside because of the silence of the party. There are other cases where there is no duty of disclosure. In these the contract cannot be set aside on the ground that the party did not speak. But in the colloquies between the parties there may be occasions when silence amounts to assertion or representation, and in such a case the contract may be set aside on account of this silent acquiescence. I cannot help thinking that the passive acquiescence of which Lord Fraser speaks would have to be of that character. It is not mere passive acquiescence, but acquiescence in such circumstances as to give it an active character. That there must be something done by the husband I cannot doubt.

Applying that exposition of lenocinium to the present case, I think the facts fall short of what is necessary to make out the defence. Here was a husband who did not know the facts, but strongly suspected that his wife had gone wrong. He hears of a project on her part in circumstances in which it is probable that she would commit adultery. I do not think he was bound to disclose his suspicions. I do not think he was barred from taking steps to observe the proceedings of his wife. I do not think so much stress can be laid on his use of the words “Yes, certainly go.” We know what was in the wife's mind at the time. She put the question because she thought his answer would shew whether he knew what she intended to do. She took him to mean “Yes, certainly go to the place you say you are going to, viz., Stirling.” That seems to me to fall far short of contriving the infidelity or the occasion for it. On the contrary, I believe that the matter was in dubio so far as the defender was concerned almost to the last moment.

On the whole matter, I am of opinion that the Lord Ordinary has come to the right conclusion, and that decree must be granted.

Lord Kinnear.—I agree that the plea of lenocinium cannot be supported, and therefore that the Lord Ordinary was right in giving decree of divorce.

Lord Dundas.—I agree. I think the proof falls distinctly short of what is necessary in law to support the plea of lenocinium.

LORD M'LAREN and LORD PEARSON were sitting in the Extra Division when the case was argued.

Lord President.—We have consulted with the Judges of the other Division in this matter in order to lay down a general rule in such cases.

When a wife has been unsuccessful in the Outer-House and then presents a reclaiming note, the question whether she is entitled to her expenses, being again unsuccessful, must depend on whether the case was a fair one to try. What I may call the prima facie view of the case is that the Lord Ordinary is right. And therefore it is for the wife to shew that the case is a fair one to try.

In this particular case we think that the question was one which it was fair to bring before this Court, and we therefore allow the reclaimer her expenses.