Wilkinson v Wilkinson
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Lord Atkin,Lord Thankerton,Lord Macmillan,Lord Clauson |
| Judgment Date | 09 June 1943 |
| Judgment citation (vLex) | [1943] UKHL J0609-1 |
| Court | House of Lords |
| Date | 09 June 1943 |
| Docket Number | No. 5. |
[1943] UKHL J0609-1
House of Lords
Lord Chancellor
Lord Atkin
Lord Thankerton
Lord Macmillan
Lord Clauson
After hearing Counsel for the Appellant, as well on Tuesday the 9th, as on Thursday the 11th and Friday the 12th, days of March last, upon the Petition and Appeal of Jessie Inglis Marshall or Wilkinson, Pauper, of 5 Havelock Street, Hawick, praying that the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division, of the 26th of June 1942, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; (which said Appeal was, in pursuance of an Order of this House, of the 8th day of March last, heard ex parte as to Joseph William Wilkinson, he not having lodged a printed case in answer to the said Appeal, though ordered so to do); and due consideration had this day of what was offered for the said Appellant:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor of the 26th day of June 1942, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
My Lords,
The Pursuer, who resides at Hawick, has brought this action in the Scottish Courts against her husband, whose address is in Toronto, for divorce on the ground of desertion, and the suit is undefended. For the purpose of deciding the important issue which now arises, the facts may be taken to be as follows.
The Pursuer and Defender were married in December, 1912, and made their home in Scotland. In 1925 the Defender went to Canada, and it was at first arranged between the parties that when he had settled down there he would send for the Pursuer and their children. Later on, he changed his mind about this and the Lord Ordinary, Lord Keith, was satisfied on the evidence that his desertion of his wife commenced in July, 1926. The Pursuer's Counsel accepts this date as correct. Since that date the Defender has never evinced any intention to return to her or to provide a common home. The Pursuer in her summons and in her evidence disclosed the fact that she had given birth to an illegitimate child in February, 1930, and she placed the act of adultery—according to her an isolated act—early in June, 1929. As the court is not competent to grant a decree of divorce for desertion unless the Defender has persisted in such desertion for a period of not less than three years, the question arises whether this period of desertion is proved, having regard to the fact of the Pursuer's adultery before the three years were up. In reply to a letter from the Pursuer's solicitors at the time of the service of process upon him, the Defender, who had already had notice from his wife of her misconduct, replied that he did not intend to defend the case in any manner or form. Lord Keith's view, which he expressed when the case was referred by him to the First Division, was to the effect that the act of adultery had no effect on the attitude or state of mind of the deserting spouse, and produced no change in the willingness of the deserted spouse to resume co-habitation. If these considerations were material, the case would have to go back to the First Division to find the facts conclusively.
The other Judges of the First Division (Lord President Normand, Lord Moncrieff, and Lord Carmont) have, however, taken the view that the adultery of the Pursuer within the three years during which desertion must continue if a decree of divorce is to be founded upon it, constitutes an absolute bar in all circumstances, and that it made no difference whether his wife's unfaithfulness affected the conduct and decision of the Defender or not. This view is expounded by the Lord President as being based on the implication that a deserted spouse must be entitled to claim as of right the adherence and co-habitation of the deserting spouse during the three years, and has not by his or her own misconduct lost that right. Lord Moncrieff puts the same proposition in the following passage:—
"In order that there may be desertion in cases of separation. there must be one spouse who insists on the separation and one spouse who insists against it. There must be one spouse who declines to return to the consort of lives, and one who not only insists, but is qualified at law to insist, upon the return of the absentee. Taking for purposes of illustration the case in which the wife is the pursuer, there must, of course, be a deserting husband, but equally, of course, there must also be a deserted wife. When the situation is that after desertion by her husband the deserted wife has taken a paramour, with whom she has committed adultery, she has, in my opinion, ceased to be 'deserted' by her husband, although he continues to live apart, as having lost her right to insist upon his return. There is still no doubt an absent husband; but seeing that there is no longer a deserted wife, the absentee has ceased to be a deserter."
"The commission of an act of adultery is no doubt a breach of conjugal duty, but when committed by a spouse suing for a decree of divorce for desertion it does not, in my opinion, necessarily destroy the act of desertion upon which the action is based. It may break the continuity of the desertion if it can be thought that, but for the adultery, the deserter might have ceased from deserting or possibly if it indicates acquiescence in the desertion on the part of the deserted spouse. But, on the other hand, it may be plain that the adultery brings into play no new operating cause in the relations of the parties, and in such case it should, in my opinion, be discarded as having no relevance to the question of the desertion. It could, however, be founded on for the purpose of a cross-action for divorce."
My Lords, my own opinion would be in favour of the view expressed by Lord Keith, and I must set out my reasons.
Divorce for desertion was unknown to the common law of Scotland. In that country, as in this, dissolution of marriage on this ground derives entirely from statutory provisions, and the only statute now in operation in Scotland is the statute of 1938. The question, therefore, simply is whether, on the assumptions of fact above indicated, relief can be given to the Pursuer under the existing statute.
The original statute of 1570, now repealed, permitted divorce for desertion to be granted after a period of four years only if elaborate preliminary procedure had been carried through. I gave a full account of this procedure in the course of my opinion in Bell v. Bell (1941) S.C. H.L. 5. For present purposes, the important point to note is that the repealed statute positively required an action for non-adherence to be first brought by the pursuer and an order for adherence to be obtained, before, at the expiry of four years of "obstinat defectioun", the decree for divorce could be made. One result of this was that adultery by the pursuer in the interval, which gave the defender a good answer to the claim for adherence, had the further consequence that a divorce for desertion could not be obtained. The unfaithfulness automatically disqualified the pursuer from succeeding in his preliminary action for non-adherence. Hence the main action must have failed.
By section 11 of the statute of 1861 (now also repealed), the necessity for bringing this preliminary action was removed, but the same preliminary condition for success in the proceedings for divorce for desertion was imposed as before and had to be satisfied in the course of those proceedings, i.e., the pursuer had to establish in his suit for divorce that he or she was entitled to an order for adherence, and hence was defeated by his or her adultery no less than by a genuine offer by the defender to return to co-habitation. Lord Watson in Mackenzie v. Mackenzie (1895) A.C. 384 at p. 400 laid it down that the object of section 11 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."
But now that section 11 of the Act of 1861, together with the old Act of 1570, have been completely repealed, I cannot see how the preliminary condition imposed by the Act of 1570, and continued in a modified form by the Act of 1861, continues to apply. The order for adherence in Scots law is in substance the same as the order for restitution of conjugal rights in English law. The right to obtain such an order is not, in my opinion, included in the concept of "desertion" in the sense that it the order could not be obtained desertion cannot in any circumstances exist. The view I am expressing corresponds with the view that has been taken in the English Courts of the concept of desertion in the Matrimonial Causes Act, 1937; see Herod v. Herod (1937) P. 11. The construction of the English Act, which is not in the same terms, is however not in question in this Appeal. In Scotland the right to obtain an order for adherence was by the earlier statutes made a condition precedent to a decree of divorce for desertion; but those statutes are repealed out and out, and the requirement that this condition should be satisfied has therefore been cancelled.
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