Bell v Bell
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Viscount Maugham,Lord Thankerton,Lord Macmillan,Lord Wright,Lord Porter,Lord Merriman |
| Judgment Date | 31 July 1941 |
| Judgment citation (vLex) | [1941] UKHL J0731-1 |
| Court | House of Lords |
| Docket Number | No. 2. |
| Date | 31 July 1941 |
[1941] UKHL J0731-1
House of Lords
Lord Chancellor
Viscount Maugham
Lord Thankerton
Lord Macmillan
Lord Wright
Lord Porter
Lord Merriman
After hearing Counsel for the Appellant as well on Thursday the 22d as on Friday the 23d and Monday the 26th, days of May last, upon the Petition and Appeal of John M'Coshien Bell, Pauper, of 1 Mitchell Terrace, Old Kilpatrick, Dumbartonshire, praying, that the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the 16th of February 1940, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet (which said Appeal was, in pursuance of an Order of this House, of the 20th day of May last, heard ex parte as to Mrs. Margaret Stuart, or Bell); And the Solicitor General for Scotland having been heard: and due consideration being had this day of what was offered for the said Appellant:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor, of the 16th day of February 1940, complained of in the said Appeal, be, and the same is hereby, Reversed: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland with a Direction to find the libel relevant and to do therein as shall be just and consistent with this Judgment.
My Lords,
The Appellant, who is a domiciled Scotsman, has raised this action against his wife for divorce on the ground of her desertion. The action is undefended, and indeed the Defender's address is unknown, so that the summons had to be served edictally. The question in the appeal is whether the pursuer's averment is adequate when the Condescendence states:
"For at least a period of three years after the Defender left him the pursuer was willing to adhere to the Defender, and has requested her to adhere to him, but the Defender has persisted in her desertion of the pursuer without reasonable cause. In these circumstances, this action of divorce has been raised."
The Lord Ordinary (Lord Robertson) held that the libel was not relevant on the ground that it contained no statement that the pursuer was willing to adhere to the Defender down to the bringing of the action.
It is averred that the parties were married in 1925, and set up house in Old Kilpatrick, where they lived happily together until 1931. About May, 1931, the pursuer fell out of employment and the Defender obtained employment in Glasgow where she went to work. About August, 1931, the Defender informed the pursuer that she did not intend to live with him again, and after that date she never returned to him. At a subsequent date the pursuer received a letter from the Defender informing him that on 12th August, 1932, she had given birth to an illegitimate child, and asking him to divorce her. The pursuer replied to this letter stating that he did not want to divorce the Defender. The summons in the present action was signetted on 19th May, 1939. It follows from the above dates that the alleged desertion began about August, 1931, and that the pursuer's averment of willingness to adhere is limited to three years terminating in August, 1934. The pursuer, therefore, deliberately abstains from averring that he continued willing to adhere between August, 1934, and the commencement of divorce proceedings in May, 1939, and the Lord Ordinary assumes that this is due to the fact that the pursuer is unable honestly to make any such averment, and is unwilling to swear to a falsehood. Does his failure to assert and prove willingness to adhere down to the date of the action destroy his right to the decree of divorce for which he asks?
On appeal to the Inner House, the case was remitted, in view of the difficulty and importance of the point raised, to the Whole Court for hearing. A striking difference of judicial opinion was disclosed. Out of the thirteen judges who sat, seven (Lord Moncrieff, Lord Mackay, Lord Carmont, Lord Jamieson, Lord Robertson, Lord Stevenson and Lord Patrick) were for affirming the Interlocutor of the Lord Ordinary, while six judges (the Lord President, the late Lord Justice-Clerk, Lord Fleming, Lord Wark, Lord Russell and Lord Keith) would have allowed the appeal and held the pleading sufficient. These judgments, though differing in their conclusions, provide the most complete and erudite compendium of the considerations to be weighed.
It is in these circumstances that the matter came before Your Lordships' House, where the case for the Appellant was opened with ability and candour by his learned counsel, Mr. Thomson. The Respondent was, of course, not represented. In view of the general importance of the question and of the difference of judicial opinion hitherto expressed in regard to it, your Lordships thought it right to ask the Lord Advocate to lend his assistance by securing that the attention of the House at the hearing should be called to any authorities or arguments, which he might feel it desirable to mention, and thus help to make sure that the final decision should be reached without overlooking any relevant consideration. Mr. Cooper, the then Lord Advocate, was good enough to arrange that the Solicitor General for Scotland (who has himself now become Lord Advocate) should attend the hearing for this purpose. We were informed that the records did not show that the Lord Advocate's help in a Scottish Appeal had previously been solicited by the House in such circumstances, so I had better add that the request of the House was not, of course, that a Scottish Law Officer should undertake to represent the absent Respondent, but that, in a matter which would determine for the future the law of Scotland on a question of wide application in which the public interest is concerned, the House should not reach its conclusion, in an appeal where the Respondent did not appear, without the most complete assurance that all relevant considerations were orally placed before it. The Solicitor General presented a careful analysis of the legal position and we are much indebted to him for his help.
My Lords, in Scotland the law of divorce for desertion is entirely statutory. Its origin is to be found in an Act of the Scots Parliament of 1573, cap. 55, which was subsequently amended by the Conjugal Rights (Scotland) Amendment Act, 1861, 24 & 25 Viet. cap. 86, section 11. It is fundamental to a right decision in this Appeal to keep in mind that the Statute of 1573, and also section 11 of the Act of 1861, have now been completely repealed by section 7 of the Divorce (Scotland) Act, 1938 (1 & 2 Geo. VI. c. 50), and consequently the whole of the existing law authorising divorce in Scotland for desertion is to be found in this last Act. By section 1 of the Act of 1938 it is provided that it is competent for the Court to grant decree of divorce on the ground that the Defender "has wilfully and without reasonable cause deserted the pursuer and persisted in such desertion for a period of not less than three years."
In interpreting these words, there is no room for ambiguity about the period referred to. It must not be less than three years; it may be more. But there seems to me to be no possible ground for introducing into the statute the stipulation that the period, whether of three years or more, must continue up to the moment when the action for divorce begins. The jurisdiction of the Court depends on proof of two facts ( a) that the Defender has deserted the pursuer, and ( b) that the desertion has persisted for the minimum period prescribed. On no principle of construction could the words themselves be interpreted as calling for fulfilment of a third condition, viz., that the prescribed period must be a period immediately preceding the raising of the action of divorce. The legislature has not said so, and when it is desired to impose this condition (as, for example, in section 6 (2) of this very Act when dealing with divorce for insanity) the Statute does so in express terms.
The view that has hitherto prevailed in this case cannot, therefore, be derived from an interpretation of the words of the Statute of 1938 standing by themselves. It is sought to be introduced from a practice, which is said to have prevailed in the judicial administration of the conjoint Acts of 1573 and 1861, of requiring a pursuer to depone to a willingness to adhere down to the date when proceedings for divorce were commenced. It is this argument which remains to be examined.
The origin of the Act of 1573 has been explained by Lord President Inglis in his judgment in the Whole Court case of Watson v. Watson 17 Reffie 736—a judgment which was referred to by Lord President Dunedin in Hutchison v. Hutchison 1909 S.C. 148 as the last word on the subject. Lord President Inglis said:
"It is almost superfluous to notice that the law thus announced and declared was an entire novelty, claiming no doubt the authority of a dogma of thirteen years' standing, but having no foundation in the canon law, or in any common law of Scotland before the Reformation. There is not a trace of practice of such divorce within the thirteen years, except in the fact that in the case of the Earl of Argyll, then Chancellor of Scotland, all the preliminary proceedings required by the Statute had been taken before the Statute was actually passed. It is therefore, I think, safe to conclude that there is no authority for an action of divorce for desertion except the Statute of 1573."
It follows that the practice above referred to, whatever its...
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