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Times (London)
28 July 1899

PROBATE, DIVORCE AND ADMIRALTY DIVISION
(before Mr. Justice Barnes.)

SICKERT V SICKERT

A full report of this undefended divorce appeared in The Times of July 19, 1899. The facts are stated by the learned Judge.

Mr. Justice Gorell Barnes, in delivering judgement today, said - The petitioner in this case prays for a dissolution of her marriage with the respondent on the ground of his alleged desertion and adultery. The adultery, which occurred in April, 1898, and May, 1899, was proved, but an important question is raised with regard to the alleged desertion. The facts appear to me to be that the petitioner was married to the respondent, who is an artist, on June 10, 1885, and that they lived together until February 29, 1896. The effect of the evidence is that in 1895 the petitioner had strong suspicions that the respondent was leading an improper life; that in 1895 she found a letter to him from a woman, and that he admitted to two cases of adultery, one with that woman and one with another woman, but that, as he promised to have nothing more to do with them, she forgave him; that in May, 1896, there was a short separation between them in consequence of his conduct, but that he rejoined her in Switzerland; that on February 29, 1896, while they were at Fluellen, on the Lake of Lucerne, he made a statement the effect of which that it was of no use concealing the fact that he had never been faithful to her, and never could be, and that the petitioner said that as long as the respondent lived that sort of life she could not live with him, but was willing to do so if he would give it up, but he declined to do so. They therefore separated, and have ever since lived separate. On December 8, 1989, the petitioner wrote to the respondent as follows:-

"Dear Walter,
In spite of your having told me, when we parted in Switzerland in September, 1896, that, immediately after our marriage and ever since, you had lived an adulterous life and that you felt sure you could never live a different one, I have been hoping against hope that you would abandon it, but all that I have heard of you during the last two years has forced me to give up all possible hope for the future.

Yours truly,
E.M. Sickert."

To this letter the respondent replied, on December 14:-

"My dear Nellie,
I have received your letter of December 8. It is quite true that I have not been faithful to you since our marriage, and it is equally true that during the two years since we parted I have been intimate with several women. As I told you long ago, I cannot continue a life of dissimulation. I have chosen my mode of life and I am unable to alter it. An undertaking to do so on my part would be misleading. Ever your profoundly attached,

Walter Sickert."

Shortly afterwards, viz. in May, 1899, this suit was commenced. There have been a number of cases on this question of desertion, but as they were mostly undefended, and the question raised upon the facts in this case is of considerable importance, I reserved my judgement. A wife is entitled to obtain a divorce from her husband if he has been guilty of, inter alia, adultery coupled with desertion, without reasonable excuse, for two years and upwards. In order to constitute desertion there must be a cessation of cohabitation and an intention on the part of the accused party to desert the other. In most cases of desertion the guilty party actually leaves the other, but it not always necessarily the guilty party who leaves the matrimonial home. In my opinion the party who intends to bring the cohabitation to an end, and whose conduct in reality causes its termination, commits the act of desertion. There is no substantial difference between the case of a husband who intends to put an end to the state of cohabitation and does so by leaving his wife and that of a husband who, with the like intent, obliges his wife to separate from him. This view of the law, applicable to desertion, has been taken in the cases of Dickinson v Dickinson (62 L.T., 330) and Koch v Koch (1899, P., 221). In the first of these cases the husband brought to the house a woman with whom he had immoral relations. The wife refused to admit her, but the husband insisted. The wife remained a short time in the house, and then told her husband that either she or the woman must leave the house. The husband told her that she might do as she liked, but that the woman would remain. The wife thereupon left and never afterwards cohabited with her husband. Sir Charles Butt held that the husband was guilty of deserting his wife. In the second case, which was heard before myself, the husband was guilty of immoral relations with a servant in the house. The husband refused to break off these relations or discharge the girl, and the wife thereupon left the house. The husband continued to live for years with the servant. I held the husband guilty of desertion. In these two cases the adulterous intercourse which the husband refused to put an end to was being carried on in the matrimonial home; but in the earlier case of Graves v Graves, heard by Lord Penzance in 1864 and reported in 3 Sw. and Tr., 250 and 33 L.J., P. and M., 66, the adulterous intercourse, though carried on for a time in the house occupied by the petitioner and respondent, was not discovered by the petitioner until after the parties had separated. The report in the Law Journal is the fuller of the two, and the headnote is as follows:- "Shortly after a marriage the husband, with the intention of bringing about a separation, so treated his wife as to compel her to leave him. She subsequently made several offers to return, but he refused to receive her. She continued willing to return until she found that he was carrying on an adulterous intercourse which had subsisted since the marriage. She then refused to return except upon condition that such intercourse should cease. Held, that such conduct before the wife became aware of his adultery amounted to desertion, and that such desertion was not put an end to by her unwillingness to return while the adultery continued." The present case is scarcely distinguishable from the case of Pizzala v Pizzala, reported only in 12 The Times Law Reports, p. 451. The husband was carrying on an adulterous intercourse with another woman, but not in the matrimonial home, and refused to break it off, although his wife told him that unless he did so she must leave him. The wife then left him, and he continued to live with the woman for over two years. The President held the husband guilty of desertion. These cases all appear to me to have been decided in accordance with the principles shortly stated above, and no distinction has been made whether the adulterous intercourse was carried on in the matrimonial home or elsewhere. A wife whose husband is carrying on an adulterous intercourse with another woman or other women is not bound to remain in cohabitation with him. She can at once obtain a judicial separation. She may, however, be willing to remain with her husband provided he will give up the connexion complained of, and if he refuses to do so, a wife with any self respect has only one course to take - that is, to withdraw from cohabitation. The husband in such a case must be taken to intend the consequences of his action - that is to say, his wife shall not live with him. The situation the produced is just the same as if the guilty husband left his wife. Desertion is not to be tested by merely ascertaining which party left the matrimonial home first. It may be committed by a husband acting as I have just said, and if the attitude of the parties remain the same for two years the offence of desertion contemplated by the statute is complete. I may add that the American writer Bishop, in his work on the law of marriage and divorce, has the following passage on the subject of desertion (sec. 787) - "It is immaterial which of the married parties leaves the matrimonial home, the one who intends bringing the cohabitation to an end commits the desertion." I am of opinion that upon the facts proved in evidence before me in the present case the respondent has been guilt of adultery coupled with desertion for two years and upwards, and I pronounce a decree nisi, with costs.