Epithalamium—A Scottish Trilogy
| DOI | http://doi.org/10.1111/j.1468-2230.1949.tb00117.x |
| Published date | 01 April 1949 |
| Author | T. B. Smith |
| Date | 01 April 1949 |
EPI'l'€IALAMIUM--A
SCO'l'TISH
'I'RTLOGT
THE implications of the House of Lords decision in
Weatherley
v.
Weatherley
[1947]
A.C.
628,
that refusal of sexual intercourse per
se does not in England amount to desertion, have been ably and
exhaustively analysed by Professor
L.
C.
B.
Gower in
M.L.R.,
Vol.
11, 2, 176,
and also by
Mr.
Jasper Ridley in
64
L.Q.R.
248.
A
brief postscript on three recent Scottish decisions
on
refusal of marital intercourse as constituting desertion may
be
of
some general interest. In the articles in
The Jlodem
Lcrw
Review
and
The
Law
Quarterly Review
reference was made
to the Scottish practice which, in contrast to that of England,
conceded, on the authority
of
Goold
v.
Goold
1927
S.C.
177,
that refusal by one of the spouses to allow the other to have
sexual intercourse during the quadriennium (now triennium)
might amount to desertion. When Goold was decided, the Scottish
law of desertion was based upon the Act
of
1578.
Until recently
the Scottish courts have apparently not had to consider whether
the Divorce (Scotland) Act,
1988,
had altered the law as stated in
Goold-a point rather overlooked by some learned writers in the
South. In
Bell
v.
Bell
1941
S.C.(H.L.)
5
and
Wilkinson
v.
Wilkiir-
son
1048
S.C.(H.L.) 61-neither case being concerned with refusal
of
marital intercourse-the House
of
Lords had to consider whether
the
1988
Act made
a
fresh point of departure for construing the law
of
desertion in Scotland. There was
a
cleavage of opinion, Lord
Thankerton and Lord Macmillan, the Scottish Law Lords, favouring
the view that desertion under the
1988
Act was to be construed in
the light
of
previous practice.
The recent trilogy of Scottish decisions,
Burrell
V.
Burrell
1947
S.C.
569,
Lennie
v.
Lenmie
1948 S.C. 466, and
Macdoeald
v.
Macdonald
1948 S.L.T.
880,
have re-affirmed that refusal
of
marital intercourse may still constitute desertion according to the
law
of
Scotland.
It
is
true that in the first case of the trilogy-
Burrell-a
decision of the Inner House, the Lord President (Cooper)
in an obiter dictum seems to have felt some difflculty as to the
extent to which the rule in
Goold
was still applicable to the post-
1988
law
of
divorce; but neither Lord Carmont nor Lord Keith
seems
to
have felt anxiety in this respect. In
Lennie,
another
decision of the Inner House, but this time of the Second Division,
the court (Lord Jamieson being absent) held unanimously that the
rule in
Goold
was
still
the law
of
Scotland. In neither
Zlwrell
nor
l.ennic,
however, did the pursuer succeed; but in
Macdonald,
a
decision
of
Lord
Mackintosh delivered in the Outer House, decree
of
divorce for desertion
by
refusnl
of
sexual intercourse
was
actually
162
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