Lennie v Lennie

Under Scots law, one spouse’s refusal of sexual intercourse, without overt withdrawal from the other spouse’s company or other evidence of non-adherence, does not by itself constitute desertion. Section 1(1)(a) of the Divorce (Scotland) Act 1938 shortened the period required for desertion but did not alter its established legal content.

The 1938 Act did not give statutory permanence to a recent judicial extension of desertion. It neither defined desertion nor incorporated the latest decisions by reference. The House could therefore overrule authorities which had treated persistent, malicious refusal of intercourse as sufficient desertion.

The wife brought an undefended action of divorce under section 1(1)(a) of the Divorce (Scotland) Act 1938. She alleged that her husband had persistently refused sexual intercourse, although there had been no overt withdrawal from cohabitation. The Lord Ordinary accepted her evidence as truthful but rejected her claim on other grounds. A majority of the Second Division affirmed that decision, with the Lord Justice-Clerk dissenting.

Both courts treated Goold v Goold as establishing that refusal of intercourse could constitute desertion. The central issue before the House was whether such refusal, without any other conduct amounting to non-adherence, was desertion within section 1(1)(a).

1. The appeal was dismissed unanimously. Lord Normand and Lord Reid delivered substantive speeches. Lord Merriman agreed with Lord Normand, as did the Lord Chancellor. Lord Simonds agreed with Lord Normand and Lord Reid.

2. Per Lord Normand and Lord Reid, refusal of sexual intercourse, without overt withdrawal from the other spouse’s company or other conduct amounting to non-adherence, was not desertion under Scots law. The historic statutory conception required diversion from the other spouse’s company without reasonable cause and continued malicious obstinacy. The long absence of authority treating sexual refusal alone as sufficient strongly supported that conclusion.

3. Lord Normand and Lord Reid regarded the contrary doctrine as a recent innovation founded upon weak or misunderstood authority. Graham v Buquhanane involved the wife’s confinement and exclusion at both bed and board, rather than sexual refusal alone. Lord Fraser’s reliance upon that case was therefore misplaced. The decisions refusing divorce where the spouses continued to share a home or bed accorded more closely with the established conception of non-adherence.

4. Per Lord Normand, Goold v Goold was overruled, as was A v B 1905 13 SLT 532. Lord Fraser’s reasoning in Forbes v Forbes was disapproved. Lord Reid likewise concluded that Goold v Goold had been wrongly decided and rejected its reasoning. A doctrine requiring proof of conduct confined to the spouses’ intimate life, while simultaneously imposing an exceptionally exacting evidential standard, would provide a remedy in theory which was almost unavailable in practice.

5. Per Lord Normand, section 1(1)(a) of the Divorce (Scotland) Act 1938 shortened the necessary period but neither defined desertion nor incorporated the latest decisions concerning its content. Unlike the statutory setting considered in Weatherley v Weatherley, the 1938 Act did not prevent the House from overruling an erroneous decision about what constituted desertion.

6. Lord Merriman and Lord Normand expressly reserved the question whether a spouse who withdrew from cohabitation because the conditions imposed by the other spouse were intolerable thereby became the deserting spouse.

1. House of Lords: The appeal was dismissed unanimously. The House overruled the authorities treating refusal of sexual intercourse alone as desertion.
2. Second Division of the Court of Session: A majority affirmed the Lord Ordinary’s judgment; the Lord Justice-Clerk dissented. The court treated Goold v Goold as governing whether refusal of intercourse could amount to desertion.
3. Lord Ordinary: The wife’s evidence was accepted as truthful, but her action failed on issues concerning competency, sufficiency of evidence and acquiescence.