Wallace v Wallace
| Jurisdiction | Scotland |
| Judgment Date | 08 February 1952 |
| Date | 08 February 1952 |
| Docket Number | No. 20. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord President.
Husband and Wife—Divorce—Desertion—Interruption of triennium by temporary resumption of cohabitation—Under what conditions deserted spouse entitled to divorce—Onus of proof.
In an undefended action of divorce by a wife against her husband on the ground of his desertion, it was proved that the husband deserted the wife in March 1947; that in August 1948 he was convicted of failing to maintain his children; that he then promised to return to the matrimonial home; that in fact he did so for two days and two nights, in the course of which he and his wife slept in different rooms and did not have sexual intercourse; and that, at the end of that time, he again deserted his wife and persisted in desertion down to the raising of the action in July 1951.
The Lord President, who heard the proof, having reported the case to the Inner House,—
Held (1) that a temporary resumption of cohabitation does not interrupt desertion unless there is an honest intention on the part of the deserting spouse to resume the consortium; but (2) that, where there has been a temporary resumption, the onus is on the pursuer to prove that the desertion has persisted; and case remitted back to the Lord President to hear evidence as to the husband's intentions at the date when he resumed cohabitation.
Observations on the conception of desertion in Scots law and on the factors to be considered in a question whether desertion has been interrupted by a temporary resumption of cohabitation.
Observed, further, that the history of desertion in English law has proceeded on such different lines and with so different an outlook that English conceptions are no certain guide in this chapter of the law.
Mrs Margaret Barlow Beattie or Wallace brought an action of divorce against her husband, William Wallace, on the ground of his desertion for a period of more than three years. The action was undefended.
Proof was led on 24th November 1951 before the Lord President, sitting in the Outer House, and the following narrative of the facts is taken from his opinion:—"But for one specialty the case presents the familiar features of the typical action for desertion. The parties were married in 1932, and they have two girls and a boy. The marriage was happy until the end of the last war, when the husband went to work in London, thereafter only staying with his wife and family at irregular intervals. In March 1947 the husband left Glasgow for London, under circumstances which leave no room for doubt in my mind that he then determined to desert the pursuer, and, incidentally, his young family. The pursuer was eventually obliged to apply for public assistance, and reported the matter to the Society for the Prevention of Cruelty to Children. As a result a complaint was brought, the defender was apprehended, and on 8th August 1948 he was convicted and sentenced in Glasgow to a fine of £4 with the alternative of twenty days' imprisonment. It seems that he paid the fine.
"I now come to the specialty which creates the difficulty. The parties met in Glasgow, and the husband promised to return to his wife, and in fact did so for two nights immediately after the Sheriff Court proceedings. He stayed in the room-and-kitchen house in which the pursuer was then living with the son and a daughter of the marriage. The pursuer deponed that during the two nights the defender slept with the boy in the “room,” while she and the girl slept in the kitchen, and that marital intercourse did not take place. As regards the sleeping arrangements the pursuer is corroborated by her daughter, now aged eighteen and then aged fifteen. At the end of the two days the defender went away “like a thief in the night, as if something was worrying him at the other end.” That is substantially all that was disclosed regarding the two days and nights. Since August 1948 the defender has manifestly again been in desertion, and still is. The summons was served on 31st July 1951."
On 1st December 1951 his Lordship reported the case to the Inner House.
At advising on 8th February 1952,—
LORD JUSTICE-CLERK (Thomson).—I need not repeat the circumstances of this case nor the considerations which led the Lord President to report it to us. The wide issue on which our guidance is invited is, in the Lord...
To continue reading
Request your trial