Scottish Court of Session Decisions

If insanity, just as imprisonment, be a reasonable cause for non-adherence, the question is whether it cannot be pleaded as an answer to an action of divorce for desertion.

If it can be so pleaded, it may entail great hardship upon a pursuer. There may have been malicious and obstinate desertion for the statutory period. Under the old law an action of adherence might have been raised after a year. Under the existing law the action of divorce, in which non-adherence must be proved, can only be raised after the four years. If insanity supervenes shortly after the expiry of four years, the pursuer, according to the defender's argument, might under the existing law be in a worse position than before 1861, and might lose her remedy altogether.

I think it is possible to hold that, on the facts as averred, the present action is competent and relevant, and I am accordingly of opinion that a proof should be allowed. So long as the substantial conditions, to use the expression of the Lord President in Watson's case, are observed, the injured spouse is entitled to the statutory remedy. The substantial conditions could not be fulfilled in Auld or in Hunter, because the adultery of the pursuer was a reasonable cause for non-adherence on the part of the defender, at the date of the action. So if insanity had here supervened before the four years of desertion had expired, the action could not have been maintained. Where, however, as here, there had been four years' desertion prior to insanity, it appears to me that the defender had incurred the statutory penalty. It is not necessary to express an opinion on the question whether it is too late, after the action has been brought, for the defender to offer to adhere. There can be here no offer to adhere on the part of the defender. As, however, it may be considered that the case touches the general question of when an offer to adhere may be made, upon which different views have been expressed in the cases of Muir and Winchcombe, and the case of Auld, I think it proper to report the point.”

Argued for the defender—The action was incompetent and irrelevant, and fell to be dismissed. Four years' desertion did not confer on the innocent spouse a vested right to obtain divorce, divorce being only granted where there was four years' desertion combined with a refusal to adhere at the date of the action. Accordingly where, as here, the defender was incapable of stating whether he was willing, or refused, to adhere, the remedy was barred. That this was the true view of the law as to divorce for desertion was clear, firstly, from the language used in the Act 1573, cap. 55, where an action of adherence, decree for adherence, letters of horning, admonitions by the bishop, were all necessary preliminaries to a final decree of divorce. Secondly, the Act of 1573, cap. 55, was not an enactment of new law but a codification or declaration of the consistorial law of the Reformation, in which the citation of the party to adhere, which necessarily postulated his ability to appear and answer, was an essential preliminary—The Booke of the Universall Kirk of Scotland, part i, p. 262, Bannatyne Club edition; Works of Sir George Mackenzie, vol. i, 277; Harpprecht Opera Omnia, 1627, vol. i, p. 417. This too was the Roman-Dutch law—Voet Commentarius ad Pandectas, lib. 24, tit. 2–9—and is now the modern law of South Africa—Nathan's Common Law of South Africa, vol. i, p. 280. Thirdly, modern decisions supported the view contended for, making it clear that the changes introduced by the 11th section of the Conjugal Rights Act 1861 were changes in the form of procedure only, and were in no way meant to alter the law as to, or facilitate the obtaining of, divorce— Auld v. Auld, October 31, 1884, 12 R. 36, see L.P. at p. 38, 22 S.L.R. 26; Watson v. Watson, March 20, 1890, 17 R. 736, L.P. Inglis at 738 and foll., 27 S.L.R. 598; Hunter v. Hunter, March 15, 1900, 2 F. 771, 37 S.L.R. 537; Mackenzie v. Mackenzie, May 16, 1895, 22 R. (H.L.) 32, Lord Watson at pp. 40 and 41, 32 S.L.R. 455. Accordingly, as the pursuer was not in a position in which she could obtain a decree of adherence against her husband, she could not obtain a decree of divorce.

Argued for the pursuer—Seeing that the Act of 1573 either enacted new law or declared the law existing at the time, it was unnecessary to go back to any earlier date. Under the Act of 1573, i.e., prior to the Conjugal Rights Act 1861, the defender's insanity would not necessarily have prevented the pursuer obtaining divorce. She might have raised her action of adherence and obtained her decree to adhere after the lapse of one year, and while the defender was still compos mentis, and then proceeded with her divorce at the end of four. It was therefore quite inconceivable that she could be in a worse position since the Act of 1861 than she was before it, the object of the Act having been merely to simplify procedure, and not in any way to limit the rights as to divorce. After the completion of four years' desertion the deserted spouse got a right of action which could not be defeated by a subsequent offer to adhere; she had in fact what was termed by Lord Mackenzie and Lord Corehouse a jus quœsitum to insist on divorce— Murray v. M'Lauchlan, December 21, 1838, 1 D. 294; M'Callum v. M'Callum, February 15, 1865, 3 Macph. 550; Muir v. Muir, July 19, 1879, 6 R. 1353, L. J.-C. Moncreiff at 1357, 16 S.L.R. 785; Winchcombe v. Winchcombe, May 26, 1881, 8 R. 726, 18 S.L.R. 517. The only limit to this right was that the pursuer must come into Court with clean hands, and must not have barred her right of action by any conjugal misconduct of her own— Mackenzie v. Mackenzie, cit. sup. Further, the defender's case was really based upon the fallacy that supervening insanity was equivalent to an offer to adhere. It was

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