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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Scott v. Scott [1908] ScotLR 839 (11 July 1908) URL: http://www.bailii.org/scot/cases/ScotCS/1908/45SLR0839.html Cite as: [1908] ScotLR 839, [1908] SLR 839 |
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Where there has been “malicious and obstinat defectioun of the partie offender” for the full statutory period of four years, the injured spouse being all the time willing to adhere, and not being disentitled by any conjugal misconduct of his or her own from seeking the remedy of divorce, that is by itself a sufficient ground for divorce, whether it be called a vested right or a jus quœsitum to apply for the remedy.
Held, accordingly, that the fact of the defender to an action of divorce for desertion having become insane at a period subsequent to the four years, and being insane at the date of the action, did not affect the pursuer's right to obtain divorce. Murray v. M'Lauchlan, December 21, 1838, 1 D. 294; M'Callum v. M'Callum, February 15, 1865, 3 Macph. 550; Muir v Muir, July 19, 1879, 6 R. 1353, 16 S.L.R. 785; Winchcombe v. Winchcombe, May 26, 1881, 8 R. 726, 18 S.L.R. 517; Auld v. Auld, October 31, 1884, 12 R. 36, 22 S.L.R. 26;
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Watson v. Watson, March 20, 1890, 17 R. 736, 27 S.L.R. 598— discussed.
The Conjugal Rights (Scotland) Amendment Act 1861 (24 and 25 Vict. cap. 86) enacts, section 11—“It shall not be necessary, prior to any action for divorce, to institute against the defender any action of adherence, nor to charge the defender to adhere to the pursuer, nor to denounce the defender, nor to apply to the presbytery of the bounds, or any other judicature, to admonish the defender to adhere.”
Mrs Kate Thomson or Scott, Hawick, brought an action against her husband Andrew Scott, an inmate of the Buckinghamshire County Lunatic Asylum, Stone, near Aylesbury, in which she sought for divorce on the ground of desertion.
The Lord Ordinary ( Mackenzie) appointed a curator ad litem to the defender, who stated the following pleas—“(1) The action is incompetent and ought to be dismissed, in respect that the defender is now insane. (2) The action is irrelevant and ought to be dismissed, in respect that the defender has not been in wilful and malicious desertion since he became insane as condescended on.”
The Lord Ordinary reported the case to the Inner House.
The circumstances are stated in the first two paragraphs of his report, infra.
“According to the pursuer's averments the material dates are as follows—The parties were married in 1894, and the defender left the pursuer in November of that year. In January 1895 he stayed two days in pursuer's parents' house when she was there. On 15th March 1899 he was admitted to Hampstead Workhouse suffering from influenza, with fever and delirium tending to become maniacal. On 10th April 1899 he was sent to Hanwell Asylum, and was transferred to the Buckinghamshire County Asylum on 9th December 1904, where he was at the date of the raising of the action. The pursuer avers that it is not expected he will ever recover.
A curator ad litem has been appointed to the defender. It was contended by him that in the circumstances above set forth the action is incompetent or irrelevant in respect the defender has not been in wilful and malicious desertion since he became insane. The pursuer's contention is, that as the defender was, according to her averments, in wilful and malicious desertion for four years before he became insane, the supervening insanity is no bar to her obtaining decree of divorce.
The difficulty arises from the fact that it has never been settled since the Conjugal Rights Amendment Act 1861 at what date the right to make a bona fide offer to adhere expires. Under the old law an offer of adherence, when made timeously and bona fide, was sufficient to bar divorce—Fraser on Husband and Wife, p. 1214. At p. 115 of Lothian's Consistorial Law the view is expressed that the last opportunity for offering to adhere is the interval between the charge on the decree of adherence or admonition by the Church Court, where such is given, and the raising of the action of divorce. In M'Lauchlan v. M'Lauchlan, 1 D. 294, it was held that the pursuer could not be barred from obtaining decree of divorce by the defender offering to adhere after the four years had expired and all the preliminary proceedings required by the Act of 1573 had been taken. If proceedings had been instituted under the old law, as it existed prior to the Conjugal Rights Amendment Act 1861, the first step would have been to bring an action of adherence. If this had not been brought before the defender had become insane, it is difficult to see how the pursuer could have obtained a decree ordaining a person of unsound mind to adhere. Accordingly, in the present case, unless a decree of adherence had been obtained by April 1899, it could not have been obtained at all, and the subsequent action of divorce could not have been proceeded with.
The Conjugal Rights Amendment Act of 1861 has, however, made a change in the Act of 1573, for it provides that it ‘shall not be necessary prior to any action of divorce to institute against the defender any action of adherence nor to charge the defender to adhere to the pursuer, nor to denounce the defender, nor to apply to the presbytery of the bounds, or any other judicature, to admonish the defender to adhere.’ The effect of this is explained by the Lord President in Watson v. Watson, 17 R. 736. The abolition of the forms required by the Act 1573 as necessary preliminaries to the action of divorce did not in any way alter the substantial conditions on which alone divorce could be obtained. The argument for the curator ad litem was that there was no vested right to divorce on the expiry of the four years during which malicious and obstinate desertion had continued. He founded on the case of Auld v. Auld, 12 R. 36, in which the Lord President and Lord Shand, referring to the cases of Winchcombe, 8 R. 726, and Muir, 6 R. 1353, criticised the view that as a result of the 11th section of the Conjugal Rights Amendment Act the whole procedure formerly necessary is to be held to have taken place the moment the action is raised, and that therefore an offer to adhere after the summons has been served comes too late. The case of Hunter v. Hunter, 2 F. 771, was also founded on. In M'Callum, 3 Macph. 550, Lord Deas expressed the opinion that the meaning of section 11 of the Act of 1861 is that if there shall have been non-adherence for the statutory period, decree of divorce may be obtained by simply instituting and following out the action of divorce itself. In the case of Mackenzie, 22 R. (H.L.) 22, Lord Watson says—‘The only remedy provided by Scotch law where the offending spouse persists in avoiding cohabitation after decree, is to be found in the Act of 1573. Decree of divorce under that Act, is, in my opinion, nothing else than a penalty for obstinate non-adherence.’ And in dealing with the Conjugal Rights Act it
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If insanity, just as imprisonment, be a reasonable cause for non-adherence, the question is whether it cannot be pleaded as an answer to an action of divorce for desertion.
If it can be so pleaded, it may entail great hardship upon a pursuer. There may have been malicious and obstinate desertion for the statutory period. Under the old law an action of adherence might have been raised after a year. Under the existing law the action of divorce, in which non-adherence must be proved, can only be raised after the four years. If insanity supervenes shortly after the expiry of four years, the pursuer, according to the defender's argument, might under the existing law be in a worse position than before 1861, and might lose her remedy altogether.
I think it is possible to hold that, on the facts as averred, the present action is competent and relevant, and I am accordingly of opinion that a proof should be allowed. So long as the substantial conditions, to use the expression of the Lord President in Watson's case, are observed, the injured spouse is entitled to the statutory remedy. The substantial conditions could not be fulfilled in Auld or in Hunter, because the adultery of the pursuer was a reasonable cause for non-adherence on the part of the defender, at the date of the action. So if insanity had here supervened before the four years of desertion had expired, the action could not have been maintained. Where, however, as here, there had been four years' desertion prior to insanity, it appears to me that the defender had incurred the statutory penalty. It is not necessary to express an opinion on the question whether it is too late, after the action has been brought, for the defender to offer to adhere. There can be here no offer to adhere on the part of the defender. As, however, it may be considered that the case touches the general question of when an offer to adhere may be made, upon which different views have been expressed in the cases of Muir and Winchcombe, and the case of Auld, I think it proper to report the point.”
Argued for the defender—The action was incompetent and irrelevant, and fell to be dismissed. Four years' desertion did not confer on the innocent spouse a vested right to obtain divorce, divorce being only granted where there was four years' desertion combined with a refusal to adhere at the date of the action. Accordingly where, as here, the defender was incapable of stating whether he was willing, or refused, to adhere, the remedy was barred. That this was the true view of the law as to divorce for desertion was clear, firstly, from the language used in the Act 1573, cap. 55, where an action of adherence, decree for adherence, letters of horning, admonitions by the bishop, were all necessary preliminaries to a final decree of divorce. Secondly, the Act of 1573, cap. 55, was not an enactment of new law but a codification or declaration of the consistorial law of the Reformation, in which the citation of the party to adhere, which necessarily postulated his ability to appear and answer, was an essential preliminary—The Booke of the Universall Kirk of Scotland, part i, p. 262, Bannatyne Club edition; Works of Sir George Mackenzie, vol. i, 277; Harpprecht Opera Omnia, 1627, vol. i, p. 417. This too was the Roman-Dutch law—Voet Commentarius ad Pandectas, lib. 24, tit. 2–9—and is now the modern law of South Africa—Nathan's Common Law of South Africa, vol. i, p. 280. Thirdly, modern decisions supported the view contended for, making it clear that the changes introduced by the 11th section of the Conjugal Rights Act 1861 were changes in the form of procedure only, and were in no way meant to alter the law as to, or facilitate the obtaining of, divorce— Auld v. Auld, October 31, 1884, 12 R. 36, see L.P. at p. 38, 22 S.L.R. 26; Watson v. Watson, March 20, 1890, 17 R. 736, L.P. Inglis at 738 and foll., 27 S.L.R. 598; Hunter v. Hunter, March 15, 1900, 2 F. 771, 37 S.L.R. 537; Mackenzie v. Mackenzie, May 16, 1895, 22 R. (H.L.) 32, Lord Watson at pp. 40 and 41, 32 S.L.R. 455. Accordingly, as the pursuer was not in a position in which she could obtain a decree of adherence against her husband, she could not obtain a decree of divorce.
Argued for the pursuer—Seeing that the Act of 1573 either enacted new law or declared the law existing at the time, it was unnecessary to go back to any earlier date. Under the Act of 1573, i.e., prior to the Conjugal Rights Act 1861, the defender's insanity would not necessarily have prevented the pursuer obtaining divorce. She might have raised her action of adherence and obtained her decree to adhere after the lapse of one year, and while the defender was still compos mentis, and then proceeded with her divorce at the end of four. It was therefore quite inconceivable that she could be in a worse position since the Act of 1861 than she was before it, the object of the Act having been merely to simplify procedure, and not in any way to limit the rights as to divorce. After the completion of four years' desertion the deserted spouse got a right of action which could not be defeated by a subsequent offer to adhere; she had in fact what was termed by Lord Mackenzie and Lord Corehouse a jus quœsitum to insist on divorce— Murray v. M'Lauchlan, December 21, 1838, 1 D. 294; M'Callum v. M'Callum, February 15, 1865, 3 Macph. 550; Muir v. Muir, July 19, 1879, 6 R. 1353, L. J.-C. Moncreiff at 1357, 16 S.L.R. 785; Winchcombe v. Winchcombe, May 26, 1881, 8 R. 726, 18 S.L.R. 517. The only limit to this right was that the pursuer must come into Court with clean hands, and must not have barred her right of action by any conjugal misconduct of her own— Mackenzie v. Mackenzie, cit. sup. Further, the defender's case was really based upon the fallacy that supervening insanity was equivalent to an offer to adhere. It was
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At advising—
The Lord Ordinary expresses the opinion that, on the facts as averred, the present action is competent and relevant, and that a proof should be allowed, because here there had been four years' desertion prior to insanity and the defender had incurred the statutory penalty for that conjugal misconduct. His Lordship thinks it unnecessary to express an opinion on the question whether it is too late, after the action has been brought, for the defender to offer to adhere, because there can be here no offer to adhere on the part of the defender; but he reports the case, as it may be considered that it touches the general question of when an offer to adhere may be made—a question upon which different judicial views have been expressed in the cases of Muir, 6 R. 1353, and Winchcombe 8 R. 726, on the one hand, and Auld, 12 R. 36, on the other.
I doubt whether there was any such real difference of judicial view as the Lord Ordinary indicates. In Muir's case the husband's offer to adhere, after the action of divorce had been personally intimated to him, was held to come too late, chiefly on the strength of section 11 of the Conjugal Rights Act of 1861, and the wife, who was pursuer, and had established desertion for upwards of four years, gother divorce. Winchcombe's case was one where a wife also got her divorce simply on the ground that the husband had deserted her for more than four years, and that there was no proof of his having made, after the expiry of the period, such an offer of adherence as she was bound to accept. Now, it is quite true that in Auld's case Lord President Inglis declined to accept what he characterised as the Lord Justice-Clerk's obiter dictum about the effect of section 11 of the Act of 1861 as finally settling the law. In particular, his Lordship combatted the view for which the pursuer in Auld's case was attempting to use Lord Moncreiff's dictum viz., that the lapse of four years gave a vested right to a deserted spouse to obtain divorce which could not be defeated by anything which happened after that period—and what had happened in Auld's case after the lapse of the four years was that, by her own admission, the wife who complained of having been deserted had borne an illegitimate child. I greatly doubt whether Lord Moncreiff ever intended his dictum to be stretched so far as that, but at all events the pursuer's counsel here did not carry it to that extent, or anything like it. He fully admitted, with Lord President Inglis, that the changes introduced by section 11 of the Conjugal Rights Act were changes in the form of procedure merely, and could not affect what the same learned Judge called “the substance of the enactments previously in force relating to this branch of the law of divorce,” and one of these substantial conditions was of course that the deserted spouse should not by her own conduct have disentitled herself from obtaining the remedy she sought.
But if the judgment that we are now to pronounce is to have any useful effect such as the Lord Ordinary obviously intended by making the action at this stage the subject of a report, it will not do to restrict it to a mere criticism of the cases of Muir, Winchcombe, and Auld. Three other cases at least must be dealt with—those of M'Lauchlan in 1838, 1 D. 294; M'Callum in 1865, 3 Macph. 550; and Watson in 1890, 17 R. 736.
M'Lauchlan's case depended in the Outer House before Lord Fullerton, and began with the wife obtaining decree of adherence upon which she gave a charge to the defender, her husband, which was disobeyed. He was denounced, and the denunciation was recorded. She then presented a petition to the presbytery to proceed to the admonition and excommunication of her husband. Finally she raised an action of divorce, in which the defender stated that he was ready and willing to adhere, and the pursuer met that with the plea that it
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M'Callum's case was an action of divorce on the ground of desertion, and the judgment in it was pronounced soon after the passing of the Conjugal Rights Act, which by section 11 rendered it unnecessary, prior to any action for divorce, to institute against the defender any action of adherence, or to charge the defender to adhere to the pursuer, or to denounce the defender, or to apply to the presbytery of the bounds, or any other judicature, to admonish the defender to adhere. Excommunication not being expressly abolished by section 11 the case was reported by the Lord Ordinary (Lord Ormidale) on the question whether wilful desertion for four years together was a sufficient ground for divorce. The First Division unanimously held that, when admonition was dispensed with, excommunication as a necessary consequence was dispensed with also, and, accordingly, it was remitted to the Lord Ordinary to proceed with the cause.
Watson's case followed in 1890 and was sent to the Whole Court. It was proved that in 1874 the wife left her husband and had persisted in her desertion ever since. Her husband deponed that he was willing to take her back, but she was not called as a witness, and it did not appear that any remonstrance had been made to her, although she was living in Scotland and her address was known to the pursuer. The Whole Court, by a majority, holding that the facts proved were not sufficient to warrant decree of divorce, remitted the case to the Lord Ordinary to take further proof, particularly with regard to the state of mind of the pursuer towards his wife during the period of desertion, and as to her willingness to return to him during that period. This case, therefore, seems to show that in the opinion of the majority the necessity of admonition or remonstrance on the part of the spouse complaining of desertion was a question of circumstances, depending upon the merits of the particular case, and that no absolute rule could be laid down. Perhaps the case is chiefly important for a vigorous protest by Lord President Inglis against the notion of introducing, or even seeming to countenance, divorce a vinculo by consent of parties.
It seems, therefore, to be the result of all the cases that when, as here, there has been “malicious and obstinat defectioun of the partie offender” for the full statutory period of four years, the injured spouse being all that time willing to adhere, and not being disentitled by any conjugal misconduct of her own from seeking the remedy of divorce, that is by itself a sufficient cause of divorce, whether it be called a vested right or a jus quœsitum to apply for the remedy. I am, accordingly, of opinion with the Lord Ordinary that the proof which he proposes should be allowed.
The
The Court remitted the case to the Lord Ordinary, instructing him to find the libel relevant and fix a diet for proof.
Counsel for the Pursuer— Inglis. Agent— Geo. A. Grant, S.S.C.
Counsel for the Defender— Dykes. Agent— Robert Millar, S.S.C.
