Scottish Court of Session Decisions

John Patterson Hutchison, sometime photographer, 47 High Street, Hawick, then residing at 150 Dundee Street, Edinburgh, raised an action of divorce for desertion against Mrs Agnes Forrest Stevenson or Hutchison, his wife, residing at 11 West Campbell Street, Glasgow.

Page: 123↓

The facts appear sufficiently from the opinion of the Lord Ordinary ( Guthrie), who, on 26th May 1908, after a proof, assoilzied the defender.

Opinion.—“The parties were married in 1883. Two children of the marriage survive—a daughter born in 1881, who resides with the defender, and a son born in 1887, who resides with the pursuer. The defender left the pursuer's house on 18th January 1888, and the parties have not cohabited since. In August 1888 an action of separation and aliment was raised by the present defender against the present pursuer, in which, after proof, the present pursuer was assoilzied by Lord Fraser in November 1888. In his defences and in the proof in that action the present pursuer offered to receive back the present defender.

The present action was raised on 2nd January 1908, between nineteen and twenty years after the judgment in the separation case. In these circumstances two questions arise— first, whether, without further expressions of willingness on the part of the pursuer to receive his wife back to cohabitation than were expressed in the separation action, he can now obtain divorce on the ground of the defender's ‘wilful and malicious non-adherence to and desertion of the pursuer for the space of four years'; and second, whether if this question be answered-in the negative, there is sufficient evidence of the following averment in condescendence 8, namely—‘Since the judgment in the case referred to in the last condescendence was given on 16th November 1888, the pursuer has repeatedly asked the defender to return to his society, fellowship, and company, and he has intimated to her that his home was still open for her; but, notwithstanding said invitations, she wilfully persisted, and still persists, to remain separate from him, and in consequence thereof, the present action has been rendered necessary.'

I answer the first question in the negative. The authorities show that the necessity for, and requisite extent of, ‘privy remonstrance' on the part of the innocent spouse is a question of circumstances. Here, when the separation proceedings terminated, it appears to me that the circumstances had so altered that the pursuer was bound, if he bona fide desired his wife's return, to let her know in clear terms that, notwithstanding all that had passed, he was prepared to resume cohabitation. It is familiar knowledge that an offer to adhere by a husband, defender in an action of separation and aliment, is often a mere strategical move, made in the expectation that it will not be accepted, rather than the expression of a real willingness, not to say desire, to resume cohabitation.

If so, the second question arises for decision. If the averment quoted from condescendence 8 be proved, then it is admitted that the pursuer is entitled to decree. The defender has not established any sufficient ground in law for remaining apart from her husband.…

[ His Lordship then examined the evidence, and came to the conclusion that the pursuer had not proved the averments in condescendence 8.] …”

The pursuer reclaimed, and argued—(1) Intention to stay away and desert appeared, inter alia, from the wife's abduction of their child and concealment of its address — Hutchison v. Hutchison, December 13, 1890, 18 R. 237, 28 S.L.R. 190. (2) Whether privy remonstrance was necessary was a question of circumstances—it was not a solemnity— Mackenzie v. Mackenzie, May 16, 1895, 22 R. (H.L.) 32, Lord Watson at p. 40, 32 S.L.R. 455; Watson v. Watson, March 20, 1890, 17 R. 736, 27 S.L.R. 598; Willey v. Willey, May 17, 1884, 11 R. 815, 21 S.L.R. 542; Gould v. Gould, December 22, 1887, 15 R. 229, 25 S.L.R. 188; Auld v. Barrie, November 23, 1882, 10 R. 208, 20 S.L.R. 147; M'Ewan v. M'Ewan, July 17, 1908, 45 S.L.R. 923. Here the husband by his formal offer on record, in the separation action, to receive his wife back—an offer which, it appeared from Lord Fraser's judgment, was repeated at the proof therein—discharged any duty of remonstrance that lay on him. The fact that twenty years had now elapsed since the desertion did not create any bar to divorce— Mackenzie v. Mackenzie, June 13, 1883, 11 R. 105. It did not even raise any presumption that the husband bad not remained willing to receive back his wife. To justify such an inference there must occur subsequently to the offer some positive act on the husband's part— cf. Thomson v. Thomson, 1907 S.C. 179, Lord President at 185, 45 S.L.R. 95. (3) In any case, the proof established that there had been further remonstrance.

Argued for the defender (respondent)—(1) They admitted that the wife had gone away without legal excuse and had no intention of returning. (2) They further conceded that privy remonstrance was not a solemnity, but where it was absent the Court would look with suspicion on an offer to adhere. There must be willingness on the part of the husband during the period of desertion to receive back his wife, and in this respect Willey v. Willey ( cit. sup) was disapproved in Watson v. Watson (cit. sup.). The mere offer in the separation action was not conclusive of the husband's willingness to receive back his wife, especially in view of the facts ( a) that he was aware that the cause of her leaving him was misunderstanding mainly occasioned through her mental state, and ( b) that for twenty years the husband had made no further offers but apparently acquiesced in the separation. (3) The evidence showed that the husband had not wished his wife to return.