Mackenzie v Mackenzie
| Jurisdiction | England & Wales |
| Judgment Date | 16 May 1895 |
| Docket Number | No. 5. |
| Date | 16 May 1895 |
| Court | House of Lords |
Ld. Chancellor (Herschell), Lord Watson, Lord Ashbourne, Lord Macnaghten, Lord Morris.
Husband and Wife—Divorce—Desertion—Act 1573, cap. 55—Conjuga Rights Act, 1861 (24 and 25 Vict. cap. 86), sec. 11.—
In an action by a husband against his wife for divorce on the ground of desertion, evidence on which held (aff. judgment of Second Division) that the defender had proved a course of conduct on the part of her husband which would have entitled her to a judicial separation, and which justified her in leaving her husband, and in refusing, for more than four years, to return to him, and that the husband was not entitled to decree of divorce.
Question‘whether the term “reasonable cause” occurring in the Act of 1573 signifies some less occasion for a wife's leaving her husband's house than would be accepted as a good answer to an action of adherence.’
Per the Lord Chancellor—‘If for a period of four years, during which the spouses were apart, an action for adherence might at any time have been successfully maintained, I do not think it would be possible to establish that there was reasonable cause for desertion. At the same time it appears to me that it would be essential for the party suing for a divorce to shew that he or she had during that time used every reasonable endeavour to induce the other to adhere, and been ready and willing to discharge on his or her part all marital duties.’
Opinion (per Lord Watson) that ‘decree of divorce under the Act of 1573 was nothing else than a penalty for obstinate non-adherence, and that the object of the Act of 1861 was not to alter the substance of the older statute by giving any new right of action to the pursuer, or any new ground of excuse to the defender, but to simplify procedure by allowing the pursuer to prove non-adherence in his suit for divorce, and dispensing with the necessity for a separate action of adherence and all other preliminaries.’
Question whether in an action of adherence a wife can successfully defend herself upon any other grounds than would be required in order to sustain an action at her instance for separation and aliment.
Per Lord Chancellor—‘It is not a notion strange to our law that the Court should refuse its aid to one who does not come into it with clean hands, and when the question arises for decision I think it may well he considered whether the Court would be bound to entertain an action and grant relief at the suit of one whose misconduct, though falling short of a matrimonial offence, has been the primary cause of the difficulty, and has led to the refusal to adhere.’
Per Lord Ashbourne—‘Even if the wife had no reasonable cause for going away, and for remaining away, the husband must still shew that he has come into Court with clean hands—that he himself was not only willing to adhere, but that he used all reasonable means to induce the wife to return to cohabitation, and that he sincerely took all honest steps to win her back.’
(In the Court of Session, Dec. 21, 1892, reported of date March 18, 1893, 20 R. 636.)
The pursuer appealed.
The following narrative is taken from the opinion of Lord Watson:—‘The appellant, a landed proprietor in the west of Ross-shire, and domiciled there, was married in June 1877 to the respondent, who was an English lady. One child, a daughter, was born of the marriage on the 1st of March 1879. On the 4th of August 1880 the respondent left the appellant's house, and has ever since declined to resume cohabitation.
‘The present action was brought by the appellant in November 1891, under the provisions of the old Scots Act, 1573, c. 55, as modified by the 11th section of the Conjugal Rights (Scotland) Amendment Act, 1861. It concluded (first) for declarator that the respondent had been guilty of wilful and malicious non-adherence to and desertion of the respondent for the statutory period of four years; (secondly) for decree of divorce a vinculo; and (thirdly) for declarator to the effect that the appellant was free to marry again, and that the respondent had forfeited all the privileges of a lawful wife, including her claims as a widow, whether legal or conventional.
‘A proof, both oral and documentary, and extending to nearly 1000 pages, was led by both parties, which gave a minute account of their life from the date of their marriage until the time of their separation in August 1880. The substance of this evidence is fully stated in the opinions of their Lordships.
‘The Lord Ordinary (Wellwood) assoilzied the respondent. On a reclaiming note his decision was adhered to by a majority of the Second Division,1 consisting of the Lord Justice-Clerk, Lord Young, and Lord Trayner. Lord Rutherfurd Clark dissented, being of opinion that the respondent had failed to prove facts and circumstances which would have entitled her to a judicial separation; and that the appellant was therefore entitled to decree.’
Lord Chancellor.—The appellant seeks a divorce from his wife. He claims it upon the ground that she deserted him for four years without any reasonable cause. His claim is founded on the Divorce Act of 1573. That Act made it sufficient cause of divorce if either spouse ‘diuertis fra vtheris companie without ane ressonabill caus alledgeit or deducit befoir ane Judge and remanis in thair malicious obstinacie be the space of four yeiris.’ The remedy could, however, only be obtained by means of an action for due adherence. It was necessary that the defender should be charged to adhere, and that
the spiritual jurisdiction should be invoked to admonish the defender so to do.
By the Conjugal Rights Amendment (Scotland) Act, 1861, it was enacted that ‘it should not be necessary, prior to any action for divorce, to institute against the defender any action of adherence, nor to charge the defender to adhere to the pursuer, nor to denounce the defender, nor to apply to the presbytery of the bounds, or any other judicature, to admonish the defender to adhere.’ An action of divorce may therefore now be raised without any preliminary proceedings at the expiration of four years' desertion.
It was contended on behalf of the appellant, and I think rightly, that the object of the Act of 1861 was only to simplify the procedure and not to alter the matrimonial law. It was also contended that under the law, as it existed prior to 1861, no circumstances could afford ‘reasonable cause’ under the statute of 1573 which would not have been an answer to an action for adherence.
It is not necessary to decide the point, but I so far concur with this view, that I think if a decree of adherence had been obtained it would not have been competent for the spouse to rely on any circumstances existing prior to the action of adherence as a reasonable ground for desertion, and if for a period of four years, during which the spouses were apart, an action for adherence might at any time have been successfully maintained, I do not think it would be possible to establish that there was reasonable ground for desertion. At the same time it appears to me that it would be essential for the party suing for a divorce to shew that he or she had during that time used every reasonable endeavour to induce the other to adhere, and been ready and willing to discharge on his or her part all marital duties.
The appellant further contended that nothing could be a defence to an action for adherence which would not establish the right to a decree of separation. The only foundation for such a decree, it was said, is a matrimonial offence—adultery or sœvitia; and therefore unless one or other of these could be proved, the right to a divorce by the party deserted was, after four years' desertion, inevitably established.
I am not prepared, without further consideration, to assent to the proposition that a spouse who seeks a decree of adherence is in all cases entitled to obtain it unless a case can be established by the defender which will justify a decree of separation. It will be seen that in the view which I take it is not necessary to determine the point in the present case, but I think it right to state the grounds upon which I desire to reserve my judgment upon it.
I admit that there is authority for the proposition contended for on behalf of the appellant, but it has never yet, so far as I am aware, been canvassed either in a Court of Appeal or in this House. It seems to me open to question whether the Courts ought in all cases to disregard the conduct of the party who invokes their aid in an action for adherence, and to decree it in all cases where a matrimonial offence cannot be established by the defender. It is certain that a spouse may, without having committed an offence which would justify a decree of separation, have so acted as to deserve the reprobation of all right-minded members of the community. Take the case of a husband who has heaped insults upon his wife, but has just stopped short of that which the law regards as sœvitia or cruelty; can he when his own misconduct has led his wife to separate herself from him, come into Court, and avowing his misdeeds, insist that it is bound to grant him a decree of adherence?
I cannot better illustrate my meaning than by referring to the case of Paterson v. Russell,1 which was relied on by the appellant. It was determined in this House, reversing the decree of the Court of Session, that the wife was not entitled to a separation; could the husband have insisted upon a decree of adherence? Might not the Court refuse its aid to one who had so acted, and regard his conduct as a bar to his claim to relief?
It is not a notion strange to our law that the Court should refuse its aid to one who does not come into it with clean hands, and when the question arises for decision I think it may well be considered whether the Court would be bound to entertain an action and grant relief at the suit of one whose misconduct, though...
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