JURISDICTION

-VOLUNTARY SEPARATION.

39

Ill. Wife leaves husband on account of his drunken violence and goes to live with her father. She is held not barred from raising action against husband on the ground of desertion,1

Jurisdiction.—The Court has jurisdiction to grant divorce at the instance of the wife, although the husband after deserting has acquired a foreign domicile."

And

For when a cause of action has arisen, it would be highly inequitable to allow the husband to defeat the wife's right to a remedy by changing his domicile. But when the husband's domicile was in England, the deserted wife is not entitled to raise a divorce in Scotland though that was her domicile of origin, and she has returned to it after the desertion. if the husband has acquired a genuine domicile in Scotland, he will be entitled to insist in the action, though the desertion took place when he was domiciled in a country where no such ground of divorce was recognised. And it is immaterial that his motive in acquiring the domicile was to obtain a divorce.4

In an action of divorce raised by a wife against her husband residing abroad, the Court refused to ordain the defender to sist a mandatory, the jurisdiction of the Court being doubtful, and the defender being in embarrassed circumstances.5

Voluntary Separation no Defence. It is no defence to the action that the parties had voluntarily agreed to separate. A contract of separation will not be enforced by the Court, and is revocable at pleasure by either spouse."

But desertion does not begin until the spouse who wishes to resume conjugal cohabitation has intimated this to the other.

Prolonged absence is an element, though a certain amount of correspondence may have been kept up.7

The husband may be in desertion though he continue to supply the wife with money."

1 Gow v. G., 1887, 14 R. 443. 2 O'Rourke v. O'R., 1849, 11 D. 976; Hume v. H., 1862, 24 D. 1342. 3 Redding v. R., 1888, 15 R. 1102,

per Lord M'Laren, Ordinary.

4 Carswell v. C., 1881, 8 R. 901;

Steele v. S., 1888, 15 R. 896.

5 D'Ernesti v. D'E., 1882, 9 R. 655.

6 A.B. v. C.D., 1853, 16 D. 111. 7 Yeatman v. Y., L.R. 1 P. and D. 489.

May Cruelty less in Degree than such as would Ground an Action for Judicial Separation, or amount to a good defence to an Action of Adherence, be pleaded successfully as a Defence to an Action of Divorce for Desertion?—This point was much canvassed in the recent case of Mackenzie v. M.1 It was not found necessary to determine the question, as the majority of the Court was of opinion that in the circumstances of that case the wife would have been successful if she had been defending an action of adherence. But Lord Young, whose opinion on this head was concurred in by the Lord Justice-Clerk and Lord Trayner, observed: "It is no criterion of the validity of a defence to an action of divorce for desertion on the Act 1573, to inquire whether or not it would have been a good defence to an action of adherence at the common law." He pointed out that the latter action was in no sense final, and that the Court might ordain a spouse to adhere, with a view of making a trial of reunion, although the pursuer had been very gravely to blame for the separation. Divorce, on the other hand, was, under the Act, inflicted as a statutory penalty, and was final. Lord Trayner said it was in every case a matter of circumstances, if the defender had been absent with "reasonable cause." Lord Rutherfurd Clark, who dissented, said: "The defender has, I think, only one possible. justification. She must show that she was not bound to adhere, or, in other words, that she had a good defence to an action of adherence. The Court must give decree of adherence unless a good defence is stated; and when a wife disobeys the decree, she must be in wilful and malicious desertion. For she is refusing to perform what the Court has determined to be her obligation as a wife." If the judgment implies that cruelty was proved, in the sense in which that term has been interpreted by decisions, it is submitted that it carries the law to a point further than has been reached in any previous case.

1 1892, 30 S.L.R. 276.

CHAPTER VI.

DIVORCE FOR ADULTERY.

By the Roman Catholic Church marriage has always been regarded as a sacrament, and therefore indissoluble. The ecclesiastical courts were entitled upon certain grounds to pronounce decrees of divorce a mensa et thoro, but though this relieved the innocent spouse from the necessity of further conjugal cohabitation, the marital bond was not severed, and it would have been bigamy for one of the spouses to contract a second marriage during the lifetime of the other. In England, until 1857, the only means of obtaining a divorce a vinculo matrimonii, was by a private Act of Parliament. This is still the case in Ireland. In 1857 the Divorce Act, 20 & 21 Vict. c. 85, conferred power on the Court specially constituted to dissolve marriages on certain specified grounds. The adultery of the husband is not a sufficient ground. It must be incestuous or bigamous, or coupled with gross cruelty or desertion without reasonable cause for two years. In Scotland, since the date of the Reformation, 24th August, 1560, the Courts have been in use to dissolve marriages on the ground of the adultery of either husband or wife.

What is Adultery ?—It is adultery for a married person to have sexual intercourse except with the other spouse. But if the wife were ravished,1 or had connection with a man in the belief that he was her husband, or was insane at the time of the connection,2 the husband would not be entitled to divorce. And it is not adultery if one spouse having been long absent and reasonably believed to be dead, the other spouse contracts a second marriage.3

1 Long v. L., 1890, 15 P.D. 218.

2 But see next page, cases of Hanbury and Yarrow.

3 Thomson v. Bullock, 9th Dec.,

1836, F.C.

Ill.-Husband sues for divorce and damages against co-respondent. Wife does not defend. Jury gives £50 damages. Judge not satisfied, orders wife to be summoned and cross-examined. She admits intercourse with co-respondent, but says he forced her. She appears mentally and physically weak. Court gives judgment against co-respondent for £50, but refuses to grant divorce.1

It has recently been held in England that it is not a good defence to plead that the adultery was committed during insanity, if it appear that the defender knew the nature of the act and its legal consequences.2

Title to Sue. It is only the injured spouse who is entitled to raise the action. Even if the pursuer die after litis contestatio, it seems that his heir or representative could not be sisted in his place. But if the party die after judgment of the Lord Ordinary, and when a reclaiming note is pending, his representatives, having a patrimonial interest, may sist themselves.4

The curator, ad litem, to an insane spouse, has been held not entitled to raise an action of separation."

7

Title to Defend. Any person who can instruct a patrimonial interest-e.g., creditors of husband or wife, may defend. The Conjugal Rights Act, 1861 (24 & 25 Vict. c. 86), provides that the Lord Advocate may state defences, and that where the Court is satisfied that the defender cannot be found, and the citation is therefore edictal, the summons shall be served on the children of the marriage, if any, and on one or more of the defender's next-of-kin, if known

1 Long v. L., 1890, 15 P.D. 218. 2 Hanbury v. H. [1892], P. 222; Yarrow v. Y. [1892], P. 92.

3 Ritchie v. R., 1874, 1 R. 826; Clement v. Sinclair, 1762, M. 337; see Menzies v. Stevenson, 1835, 14 S. 47. This is also law in England. Grant v. G., 1862, 31 L.J., Mat.

174.

4 Ritchie, supra; Fenton v. Livingstone, 1849, 3 Macq. 497.

5 Thomson v. T., 1887, 14 R. 634. Secus in England. The committee

of a lunatic may sue for divorce. Baker v. B., 1880, 6 P.D. 12; Mordaunt v. Moncreiffe, L.R., 2 H.L. Sc. 374. But apparently cognition would not mend the title to sue in Scotland.

6 Greenhill v. Ford, 1824, 2 Sh. App., 435.

7 Query whether Lord Advocate is bound to insist in plea of condonation which has been stated by defender and afterwards withdrawn. Ralston v. R., 8 R. 371.

PROCEDURE- -EVIDENCE OF PARTIES.

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and resident in Great Britain, and that any child or any one of the next-of-kin may appear and state defences.1 It does not seem to have been decided in Scotland whether an action can be raised against a lunatic on the ground of adultery committed when sane. But such an action has been sustained in England.2

The alleged particeps criminis may be called as co-defender, and found liable in all expenses.3

But where a pursuer virtually alleged that the defender was leading an abandoned life, and did not aver that the co-defender knew she was married, the action against the latter was dismissed.1 The particeps criminis, though not called as a co-defender, may appear and defend himself.5

Procedure. The marriage must first be proved. It is usual to produce an extract register (which by 17 & 18 Vict. c. 80, § 58, is now evidence), and to bring the minister or some other person or persons who were present at the marriage. If the marriage was irregular, it must be proved by evidence of cohabitation and repute or of declaration, or promise subsequente copula. If the irregular marriage has previously been registered under 19 & 20 Vict. c. 96, § 2, a copy of the register will be evidence of marriage, but not in itself conclusive. It may be pleaded in defence that the marriage was null-e.g., on account of impotence of husband." A certificate

of marriage by a notary not purporting to be a copy of an entry in the register of marriages kept by the law of that country but only containing a reference to the register, cannot be received as evidence of the marriage, although it would be evidence in the foreign country.8

Evidence of Parties. Since 37 & 38 Vict. c. 64, the pursuer and defender are competent and compellable witnesses.

1 Section 10.

2 Mordaunt v. Moncreiffe, L.R., H.L. 2 Sc. App., 374.

3 24 & 25 Vict. c. 86, § 7.

Miller v. Simpson, 1863, 2 M. 225, a very special case; see Kydd v. K., ibid., 1074.

5 See Wheeler v. W., 1889, 14 P.D. 157.

Marriage may be proved in Eng

land also by reputation, Reed v. Passer, 1794, 1 Peake Ca. 231, or by cohabitation, Buller, 114.

7 Sewell v. S., 1862, 31 L.J., P. and M. 55. But it would be no defence to plead that the marriage had never been consummated; Brown v. B., 1848, 13 Jur. 370.

8 Finlay v. F., 1862, 31 L.J., P. and M. 149.