Monahan v Monahan
| Jurisdiction | Scotland |
| Judgment Date | 10 December 1929 |
| Docket Number | No. 19. |
| Date | 10 December 1929 |
| Court | Court of Session (Inner House - Second Division) |
2nd DIVISION.
Lord Mackay.
Husband and WifeDivorceDivorce for desertionMoraTwenty-four year's delay.
In an undefended action of divorce on the ground of desertion, brought by a wife against her husband twenty-four years after the alleged desertion, the Lord Ordinary, while indicating that desertion had been established, nevertheless refused the pursuer decree, on the ground that her delay in bringing the action, which in his view was not satisfactorily explained, inferred acquiescence in the situation, and debarred her from the remedy which she sought.
Held (rev. judgment of Lord Mackay) that the fact that the pursuer had delayed to bring her action was not per sesufficient to deprive her of her remedy, and that there was no evidence in the case from which it could be inferred that she had acquiesced in her husband's desertion.
Mackenzie v. MackenzieUNK, (1883) 11 R. 105,followed.
On 29th October 1895 Mrs Robertina Alexandria Duthie Fernie or Monahan was married to John Shaw Monahan. After the marriage the parties took up house in Glasgow. On several occasions prior to 1904 Monahan left his wife for considerable periods of time, without giving her any information as to his movements during his absence. In 1905, after a quarrel with his wife, he left their house in Glasgow, and did not again return.
On 17th May 1929, twenty-four years after her husband had finally left her, Mrs Monahan, who sued in forma pauperis, brought an action of divorce on the ground of desertion against her husband. The action was not defended.
On 13th July 1929, after a proof (the import of which is set forth in the opinions of the Lord Ordinary and the Lord Justice Clerk,infra),the Lord Ordinary (Mackay) dismissed the action.
LORD JUSTICE-CLERK (Alness).This is an undefended action of divorce brought by a wife against her husband on he ground of desertion. The desertion occurred in 1905, and the action was brought in 1929. The desertion is unquestionably proved, and the Lord Ordinary regards it as proved. So we start from the point of view that the defender was, in 1909, in malicious desertion of the pursuer. It is not unimportant to observe that the pursuer's case passed the reporters on probabilis causa, that the libel was held relevant, and that the pursuer proved everything which she offered to prove in the libel which the Lord Ordinary held relevant.
In these circumstances, were it not for the fact that the Lord Ordinary takes a different view from what I, in common with your...
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