Divorce for Adultery in UK Law

My Lords, I think that it does not do justice to the averments to take up each alleged incident one by one and hold that it is trivial or that it is not thurtful or cruel and then to say that cumulatively they do not amount to anything grave, weighty or serious. What on paper may seem little more than a series of pin pricks may present a very different aspect when it has been developed in evidence, though the evidence does not exceed by a single word the bounds set by the record.

Every such act must be judged in relation to its surrounding circumstances, and the physical or mental condition or susceptibilities of the innocent spouse, the intention of the offending spouse, and the offender's knowledge of the actual or probable effect of his conduct on the other's health (to borrow from the language of Lord Keith) are all matters which may be decisive in determining on which side of the line a particular act or course of conduct lies.

My Lords, neither the old Scots statute of 1573 nor the Act of 1861 used the word "desertion," but it is to be found in common use in the numerous reported cases of the past hundred years, and it has acquired a perfectly definite significance in matrimonial suits. (Fraser on Husband and Wife, vol. ii, p. 1209 et seq.) It follows, in my view, that the quality and characteristics of marital desertion, as understood in Scotland, remain unaltered in the Act of 1938.

If, then, we are thrown back on the words of the Act, without any good reason for following decisions and a practice which I regard as no longer applicable, I must say that to me it seems to be very difficult to support the judgment under appeal. There are, I think, other reasons for not giving a new lease of life to the old doctrines and practice. Here I cannot do better than cite from the opinion of the late Lord Justice-Clerk: —

It is conceded on all hands to be clear that the Scots law of divorce for desertion has always been entirely statutory. Up to 1938 it depended on two enactments, the Act of 1573, cap. 55 and section n of the Conjugal Rights (Scotland) Amendment Act, 1861. I read these two sections together as having the effect that the old law of desertion has been swept away and a new law substituted in the terms of section 1 (1) ( a).

There is a logical plausibility in this argument which has persuaded the Lord President and Lord Murray, but in my opinion it is unsound. The doctrine of the law, as I understand it, invokes the fiction or analogy of the husband's death only for the purpose of causing to emerge on divorce the right which ordinarily emerges on death, namely, the right to a fractional share of the husband's moveable estate.