Scottish Court of Session Decisions

The pursuer of this action was married to George Ritchie in 1852, and on Feb. 28, 1872, Lord Ormidale pronounced decree against her in an action of divorce at the instance of her husband on the ground of adultery. A reclaiming note against this judgment was presented by Mrs Ritchie on March 20, 1872; her husband died on June 27 of the same year. The reclaiming note came before the First Division on July 18, 1872, and was dropped from the roll by order of the Court. On Jan. 23, 1873, Mrs Ritchie raised the present action against Sir David Ross and others, her husband's trustees and executors, for payment of £30 as an allowance for mournings, £150 per annum, being an annuity secured to her under her husband's trust-disposition, or the sum of £5000, or whatever other amount might be held to be the amount of her share of her husband's estate as his widow. The trustees resisted this claim on the ground that the pursuer's legal and conventional provisions were only payable in respect of her marriage, and that the marriage had been dissolved.

The Lord Ordinary pronounced the following interlocutors:—

“3 rd June 1873.—The Lord Ordinary having heard parties' procurators, and considered the closed record and productions, sists process for one month from this date, that the pursuer may take steps by action of transference or otherwise for having the decree of divorce founded upon in the defence recalled or set aside.

Note—Until the decree of divorce here founded on is recalled, or otherwise held to have become inoperative in consequence of the pursuer of the action having died before the reclaiming note was disposed of, it must, it is thought, be held to be a valid decree in dealing with the claim made in the present action. For although it seems to be settled that it is a good defence against decree of divorce

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being pronounced that the pursuer has died in course of the process (Bell's Prin., sec. 1534; Lord Medwyn in Menzies, Nov. 21, 1835, 14 D., p. 47; Fergusson's Con. Law, p. 177; Lothian's Consistorial Practice, p. 168), the Lord Ordinary is not aware that it has ever been decided that where decree of divorce has been pronounced and is reclaimed against, but the pursuer dies before the reclaiming note is disposed of, the decree ipso facto falls as here contended for on the part of the pursuer, and must be disregarded in any proceedings on which it is afterwards founded upon; and, as it appears from the cases noted by Mr Fraser, vol. i., p. 658, that there is one case in which it has been held that parties having a patrimonial interest, such as the representatives of a husband who had died before decree of divorce had been actually pronounced, were allowed to carry on the process, or rather to institute a new process of declarator to the extent of maintaining a defence against a claim for aliment, the Lord Ordinary, as at present advised, is not prepared to hold that in this case the representatives of the husband may not be allowed to appear as parties respondents in the reclaiming note, and to the same extent oppose the recal of the decree; as this, however, is a question which, in the view the Lord Ordinary takes of it, cannot be satisfactorily dealt with except in or with reference to the process in which the decree was pronounced, he has sisted this process in order that the pursuer may take steps for having the question authoritatively disposed of.

22 d October 1873.—The Lord Ordinary having heard parties' procurators, and resumed consideration of the closed record and productions, in respect of the decree of divorce founded upon in defence, dismisses the action, and decerns: Finds no expenses due to or by either party.

Note.—As no steps have been taken in this case to have the reclaiming note against the decree of divorce pronounced by Lord Ormidale disposed of, it appears to the Lord Ordinary, for the reasons explained in the note to his interlocutor of the 3d of June 1873, that as matters stand at present he is not entitled to refuse to give effect to that decree to the extent which has now been done.”

The pursuer reclaimed.

Argued for her—The action of divorce is competent to the spouses only, the injury being a personal one to the aggrieved party. This is undoubtedly the case in regard to raising such an action, and it seems naturally to follow that no one who was incapable of raising the action can be capable of insisting in it after it has been raised, and in all the cases where third parties have been allowed to intervene it has been during the lifetime of both spouses. In the present case the decree of divorce is not final, it has not been extracted and is not extractable, and the marriage has been dissolved by the death of the husband. The status of the wife has been already fixed by the husband's death and nothing can now be done to alter it; and as the trustees could not have raised the action of divorce, so neither can they be allowed to insist in it.

Authorities— Walker v. Walker, 24th Jan. 1871, 9 Macph. 460, (effect of reclaiming note); Clement v. Sinclair, 4th March 1762; Menzies v. Stevenson, 21st Nov. 1835, F.C., 14 S. 47; Gardiner v. Macarthur, 16th May 1823, F.C., 2 S. 275, (new ed.); Greenhill v. Ferd, 7 th Feb. 1822, 1 S. 296, (new ed.) 275; 16th June 1824, 2 S. App. 435; Stair i. 4, 7 Ersk., i. 6, 43; Bell, 1534; Fergusson's Consist. Rep., p. 317 app.; Fergusson's Consist. Law, pp. 106, 177; Lothian, p. 168.

Argued for the trustees—It is not incompetent for persons other than the spouses to be parties to an action of divorce. Either the trustees must be sisted and allowed to support the Lord Ordinary's interlocutor on the ground of their jus quæsitum, or that judgment must stand; it cannot be got rid of by the mere presentation of a reclaiming note, nor can decree in absence be given. It is not here a question of pursuing an action of divorce; the trustees are simply defending a position gained by the husband, whom they represent.

At advising—