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Scottish Court of Session Decisions

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Cite as: [1900] ScotCS CSOH_1

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15 March 1900


Lord Justice-Clerk.—The Lord Ordinary has in his opinion stated so fully and clearly the facts of this case, as disclosed in the pursuer's pleading, that it is unnecessary to go into them in detail. The question stated shortly is, whether a wife can sue for a divorce on the ground of desertion, she having married and cohabited with another man at a time when she had no sufficient ground for believing her husband to be dead, but relying only on a rumour to that effect, there being nothing which could displace the legal presumption that the husband was still alive. For it is, I think, plain that in this case she could not have successfully taken any other legal proceedings regarding rights claimed by her in respect of her being a widow. Had she taken any legal proceedings on the footing that her husband was dead she could neither have proved the fact nor got the benefit of any presumption tending in that direction. Can she then sue for divorce on the ground of desertion when by her own act she has placed herself in the position that any claim she had to call upon her husband to adhere is gone? I am unable to hold that she can. The law on this matter as laid down by Erskine commends itself to me as just. By entering into a new marriage the pursuer has taken the risk of acting on imperfect information, from which she inferred she was free to marry when in fact she was not. Without taking any legal steps to have her previous marriage relation put an end to, she entered into the new relation. I assume, of course, the truth of all she says against her husband, but all she does aver consists of facts that would have entitled her to the benefit of the law of desertion; it could not of itself sever the marriage tie and give her the right to marry and cohabit with another. Legally, I hold that her cohabitation with another man must be held adulterous; and if that view be sound, then it is, I think, plain that the basis of a demand for divorce on the ground of desertion must fail. The case of Auld settles that if a spouse has incurred the imputation of adultery, a divorce at that spouse's instance on the ground of desertion is not maintainable.

Such cases as the present are necessarily rare, and there are, therefore, few reported cases which can form direct authorities. The case of Donald differs from this case in this particular, that the wife there did not marry again, but fell into illicit intercourse with another man. The case, therefore, was more unfavourable to the woman than the present one. But the case is an authority on the question whether such a plea of belief of the other spouse's death can be received where it did not rest on reasonable and probable grounds. In the words of the Lord President, the question is whether the wife did, “before holding herself free from the bonds of matrimony, make such inquiries or receive such information as she was entitled to rely on”? I feel quite unable to hold that what the pursuer here states as the grounds of her belief fulfil the requirement thus stated by the Lord President. It comes to no more than this, that someone who had been in America told her that he had heard that her husband was dead, and that he believed it, and that no reply was given to a notice in the Weekly Mail. I adopt the words of the Lord President in that case, which I think apply to this case, that such inquiry was not made as “to put her in possession of warrantable grounds for belief that her husband was dead,” and that is sufficient for the determination of the present case.

I sympathise with the pursuer, who seems to have been straightforward in what she did on discovering the mistake, but I am unable to come to any other conclusion than that which was arrived at by the Lord Ordinary. The case may be a hard one, but to give weight to that consideration in favour of the pursuer would be likely, in my opinion, to be harmful. The matrimonial relation requires to be guarded by firm rules, and the application of these rules, however hardly they may bear in particular cases, is a necessary safeguard of the important social relation which is constituted by marriage.

I must therefore hold that the judgment of the Lord Ordinary cannot, on legal grounds, be impugned.

Lord Young.—The Lord Ordinary is of opinion that the pursuer's averments present a relevant case against her husband of wilful and malicious non-adherence entitling her to divorce, and in this I concur. He is, however, also of opinion that the statement which she makes “with creditable frankness “respecting the marriage ceremony which she went through with her cousin in December 1894, and the subsequent cohabitation thereon, is a confession by her of adultery which disentitles her to the divorce which the

Court must otherwise have awarded on proof of her (relevant as he thinks)averments of wilful and malicious non-adherence. “The question,” his Lordship says, “is thus raised whether the pursuer's second connection, although begun and ended in good faith, is to be regarded for the purposes of this case as being an adulterous connection.” His opinion is that the question must de plano, and without admitting evidence, be answered in the affirmative. I am, on the contrary, of opinion that a proof ought to be allowed and taken before we pronounce any judgment. Lord Moncreiff in his opinion, which has been communicated to us, says—“Personally I should have preferred to reserve consideration of the objection until the facts were ascertained.” I understand this to mean that in his Lordship's judgment it would be safer, and avoid some, and that very conceivable, risk of a miscarriage of justice, to postpone the consideration and disposal of this objection until the facts are ascertained. This is my opinion also, and leads me, I think unavoidably, to the conclusion that the Lord Ordinary ought not to have disposed of the objection until the facts were ascertained. When they are ascertained there may not even be room for the objection or need to consider it, for the pursuer may fail to prove “wilful and malicious non-adherence” although ever so relevantly averred.

But while I agree with Lord Moncreiff that it is preferable, as being safer against risk of miscarriage of justice, to reserve consideration of the objection until the facts are ascertained, and think this sufficient reason for ordering proof now, I think it my duty to say that in my opinion the pursuer is, as matter of legal right, entitled to be allowed a proof, and that the judgment dismissing her action without evidence on the ground that she is a self-confessed adulteress is wrong, and ought to be recalled.

With respect to the marriage ceremony between the pursuer and her cousin, and their subsequent cohabitation, the Lord Ordinary observes that “she avers circumstances which if proved will (I assume) instruct her good faith in the matter.” I agree, as I think anyone reading the averments will, in this observation. What the Lord Ordinary has I think failed to attach sufficient importance to is that by these averments the buna fide though erroneous belief of the pursuer and her cousin, and indeed of all the defender's relatives, is attributed to the wilful and malicious misconduct of the defender, prolonged over a period of six years and upwards.

I cannot assent to the Lord Ordinary's remark that for two and a-half years before her marriage with her cousin the pursuer “had on her own statement been in a position to obtain a divorce from her husband on the ground of desertion,” and might then have availed herself of the remedy which the law allows if she desired to be free again. I have no ground for forming and acting judicially on an opinion that in 1892, on the expiry of the statutory period of four years, the pursuer was in a position to bring, and possessed of evidence to support, an action of divorce. She was, if her averments are true, left deserted and destitute, except in so far as she could support herself by the labour of her hands. In the end of 1894, when her cousin came to her rescue, and he and all the defender's relations had become honestly convinced of his death, it may have been, and probably was, considered whether an action of divorce for non-adherence was needful or desirable, and whether there was evidence to support it. Had such action been then brought, the pursuer stating “with creditable frankness” that the defender was, as she and all his relations honestly believed, dead, and that the action was to obtain a decree of divorce which would enable her to marry her consin, how would it have been dealt with? I think it not improbable that Lord Pearson would have dismissed it in respect of the creditably frank statement that the pursuer believed that the person called as defender was dead. But suppose he allowed evidence, and that circumstances were proved which produced in his judicial mind the same bona fide belief which the pursuer acknowledged they had produced in her mind, would he have given decree of divorce? I am not surprised that she was not advised to bring the action when honestly believing that the only possible defender was dead.

The pursuer's bona fide belief that the defender was dead was not corrected till towards the end of 1898, when he returned to this country. She raised her action in June 1899, and I have already expressed why I am unable to concur in the Lord Ordinary's censure of her failure to bring it seven years earlier. The defender is now resident in Scotland, and the summons was served on him personally. He has stated no defence, and not hitherto appeared. But should the case be allowed to proceed in the usual way, he may appear at any stage, and state such pleas and lead such evidence as he thinks fit. He has as yet offered no explanation of his desertion of his wife, prolonged over a period of ten years, with such successful concealment of his whereabouts and anything which might suggest his existence as to produce the honest belief in her and all his relations and friends that he was dead. He may at any time give such account as he pleases, good or bad, and the pursuer may call him as a witness, and for aught I or any of us know, prove by his evidence that the honest belief of his wife and relations in his death was induced by his conduct, and intended by himself to be so.

Lord Trayner.—I agree with the Lord Ordinary in thinking that this action should be dismissed. It is an action by a wife against her husband concluding for divorce on the ground of the desertion or non-adherence of the latter. The Lord Ordinary in his opinion says that the pursuer would have been entitled to divorce on the ground alleged had she brought her action in June 1892. I cannot assume that. The defender might have had a good defence to such an action, had it been brought, by shewing that his absence from his wife for more than four years prior to that date was not malicious, or obstinate, or without reasonable cause. But if he has deserted the pursuer for four years prior to the raising of this action, without reasonable cause, then the pursuer may succeed. Now, the pursuer's own averments shew that this is not the case. In 1894, on the belief that the defender was dead, she married another and continued to cohabit with him from the time of the marriage, or more correctly the marriage ceremony, until the year 1898. I regard that as a sufficient and reasonable cause why the defender should refuse now to adhere to his wife. The statutory ground for divorce, therefore, is wanting at the time when the pursuer claims the right conferred by the statute. It is true the defender does not plead the pursuer's conduct in defence to the action; he has not appeared in the case. But the pursuer's own averments shew that she is not entitled to the statutory remedy which she asks us to give her. I give no opinion as to whether the pursuer's conduct has been such as to entitle her husband to divorce her, for that question does not arise here. I proceed, as I have said, upon the ground that the pursuer cannot get divorce against her husband for desertion or non-adherence, when her own averments disclose that the defender has a reasonable cause for non-adherence.

Lord Moncreiff was absent at advising, and his opinion was read by the Lord Justice-Clerk as follows:—This is a very hard case, and it is with reluctance, and not without hesitation, that I agree that the Lord Ordinary's interlocutor should be affirmed.

Personally I should have preferred to reserve consideration of the objection until the facts were ascertained. But I cannot say that the Lord Ordinary was not justified in disposing of the case on relevancy; and as the pursuer's counsel frankly admitted that he was not in a position to strengthen the averments on record, we must assume that the pursuer has stated all the facts which she is able to prove.

The question therefore is, whether the pursuer, when she married again, had on her own shewing reasonable grounds for thinking that the defender was dead. I see no reason to doubt that she bona fide believed that he was dead, but that is not enough; it must be shewn that her belief rested on reasonable and probable grounds sufficient to justify such a serious step. Now, when the pursuer's averments are sifted they come to this, that the only foundation for her belief was the unsupported statement of Archibald Campbell in 1894, to the effect that it was generally reported and believed that the defender had been frozen to death. He did not state of his own knowledge that the defender was dead, but merely that he had heard the report and believed it. It is to be observed that the pursuer's belief was not induced by the defender's previous long-continued silence; because, as she says, he had neither corresponded with the pursuer nor let her know of his whereabouts for six years prior to the date of his supposed death, from which she naturally inferred, not that he was dead, but that he had deserted her. Therefore the only ground for the pursuer's belief that the defender was dead when she married again was this report spoken of by Archibald Campbell, and the question is whether she was justified in marrying again on the faith of such a rumour.

If it had been averred and proved that the rumour was intentionally circulated by the defender, or even if it had been averred and proved that the defender was aware of the rumour and aware that his wife believed it, and yet kept silence, I should have been disposed to hold that the defender would have been barred from stating the objection in defence to the pursuer's action. But in the absence of any such averments I am not prepared to hold that a married woman who contracts a second marriage upon such slender grounds, however honestly she may believe that her husband is dead, can escape the consequences of her error. Her bona fides may be a good defence to a prosecution for bigamy, but it will not deprive the husband of his right to refuse to adhere, and if he is not bound to adhere he cannot be divorced for desertion. I therefore think that the Lord Ordinary's interlocutor should be affirmed.

2 F 771

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