EPILOGUE TO EPITHALAMIUM (Further comments on Lennie v. Lennie 1948 S.C. 466; 1950 S.C.(H.L.) 1; [1949] 65 T.L.R. 763)
| Date | 01 July 1950 |
| Published date | 01 July 1950 |
| DOI | http://doi.org/10.1111/j.1468-2230.1950.tb00171.x |
EPILOGUE
TO
EPITHALAMIUM
(Further comments
on
Lennie
v.
Lennie
1948
S.C.
466;
1950
S.C.(H.L.)
1;
119491
65
T.L.R.
768)
IN
concluding his article
‘
Epithalamium-A Scottish Trilogy
’,
12
M.L.R.
162,
the present writer observed
:
‘
The decision of the House
of Lords in
Lennie,
if
the appeal be taken there,
will
be awaited With
anxiety and interest
’.
‘Anxiety’ has proved to be indeed the
appropriate word.
It
was envisaged (p.
166)
that,
if
the appeal were
taken (apart
from
the question of suftlciency of proof
in
the actual
case
sttb
judice),
two
major issues might be before the House of
Lords
for
determination,
viz.
:-
(a) May refusal by one spouse of sexual intercourse against the
wishes
of
the other constitute desertion under the Divorce
(Scotland) Act,
1988?
(b)
Is
it permissible in
a
Scottish action for divorce
on
these
grounds
‘
to discover
or
reveal the intimacies of the marriage
bed
’?
In
the event, the House
of
Lords decided in
Len&
V.
Lennie
1950
S.C.(H.L.)
1
that malicious refusal of intercourse
per Be
no
longer constitutes desertion according to the law of Scotland.
Had
it
been necessary to decide the second point, it seems that the
pursuer would ‘also have failed thereon.
Since
it
was accepted beyond
8
peradventure
by
the legal
pro-
fession in Scotland that malicious refusal
of
sexual intercourse
per se
was desertion under the rule
of
Goold
v.
Goold
1927
S.C.
177,
and
since
it
was accepted by the majority
of
the House of Lords
in
Wilkinson
V.
Wilkinson
1948
S.C.
(H.L.)
61
that
‘
desertion
’
under
the
1988
Act was
to
be construed in the light of previous practice,
it was not surprising that Guest
K.C.
for the appellant in
Lennie,
based his appeal
on
the questions of acquiescence and
of
sufEciency
of
proof, and not upon the substantive ground. The whole Second
Division had recognised the continued validity of the rule in
Goold
even after the
1988
Act.
In
Weatherley
v.
Weatherley
[1947]
A.C.
628,
moreover, both the Lord Chancellor and Lord Normand had
gone out of their way to give express warning that their decision was
on
the English law of desertion, and that the citation of Scottish
decisions
on
divorce
or
vice versa
could seldom be profitable.
These comments could scarcely have prepared counsel for the appel-
lants for the attitude adopted by the House when
Lennie
came
before
it
for hearing in July,
1949.
Whereas the appeal was taken
upon the contention that the pursuer had proved her case, and the
jtls
actionis
was assumed, it was rejected upon the ground that she
840
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