Bell v Bell
| Jurisdiction | Scotland |
| Judgment Date | 16 February 1940 |
| Date | 16 February 1940 |
| Docket Number | No. 20. |
| Court | Court of Session |
WHOLE COURT.
Ld. Robertson.
Husband and WifeDivorceDesertionRelevancy of libelPursuer's willingness to adhereNecessity of averment of willingness down to date of bringing actionDivorce (Scotland) Act, 1938 (1 and 2 Geo. VI, cap. 50), sec. 1 (1) (a).
The Divorce (Scotland) Act, 1938, enacts, by sec. 1:"(1) Without prejudice to the power of the Court to grant decree of divorce on the ground of adultery, it shall be competent for the Court to grant decree of divorce on any of the following grounds, that is to say, that the defender(a) has wilfully and without reasonable cause deserted the pursuer and persisted in such desertion for a period of not less than three years. "
In an action of divorce on the ground of desertion held, by a majority of the Whole Court (diss. the Lord President, the Lord Justice-Clerk, Lord Fleming, Lord Wark, Lord Russell and Lord Keith), that the libel was irrelevant, and that the action fell to be dismissed, in respect that, while the pursuer averred that for a period of at least three years after the defender left him he had been willing to adhere to her, he did not aver that he had been willing to adhere down to the date at which he brought the action.
On 19th May 1939 John M'Coshien Bell, shipwright, 1 Mitchell Terrace, Old Kilpatrick, Dumbartonshire, brought an action of divorce on the ground of desertion against his wife, Mrs Margaret Stuart or Bell, whose address was unknown to the pursuer. The action was undefended.
The pursuer averred, inter alia:"(1) The pursuer was married to the defender at Oban on 30th December 1925. An extract entry of the marriage is produced herewith. There is one child of the marriage, Christine Heather Bell, who was born on 27th December 1927. The pursuer is a domiciled Scotsman. He was born in Scotland of Scottish parents and has lived in Scotland all his life. (2) After the marriage the parties took up house together at 20 Dumbarton Road, Old Kilpatrick, where they lived happily together. In or about May 1931 the pursuer fell out of employment and the defender decided to take up a situation in Glasgow. The pursuer did not approve of the defender going away to work, but no quarrel took place, and relations between the parties continued amicable. (3) After the defender went to work in Glasgow the pursuer kept on his house at 20 Dumbarton Road, but he and the child of the marriage slept at the pursuer's mother's house at 1 Mitchell Terrace, Old Kilpatrick. The defender visited 1 Mitchell Terrace from time to time. In or about August 1931 the pursuer met the defender in Glasgow by arrangement, as he occasionally did. The defender then suddenly informed the pursuer that she did not intend to live with him again. The pursuer was greatly astonished at this information, as there had been no quarrel and he had given the defender no cause to leave him. She stated at that time that she had no cause for complaint but that she had quite made up her mind not to return. The defender continued to work at her situation in Glasgow, and since August 1931 she has never returned to the pursuer and the parties have not cohabited. (4) In or about June 1932 the pursuer met the defender in Glasgow and endeavoured to persuade her to return to him, but the defender refused to return and informed the pursuer that she had met someone whom she preferred to him. The pursuer subsequently received a letter from the defender informing him that on 12th August 1932 she had given birth to an illegitimate child at Inverness. At the meeting before referred to the pursuer had no suspicion of the defender's state, or that, while she made the statement that she met someone she preferred to him, such association was adulterous. In her said letter the defender asked the pursuer to divorce her. The pursuer in his reply said he did not want to divorce her. This letter was returned to the pursuer by the postal authorities undelivered. (5) 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 pursuer pleaded:"The defender having wilfully and without reasonable cause deserted the pursuer, and having persisted in such desertion for more than three years, the pursuer is entitled to decree in terms of the Divorce (Scotland) Act, 1938, section 1 (1) (a)." 1
The Lord Ordinary (Robertson) on 7th July 1939 refused the motion of the pursuer to find the libel relevant, and dismissed the
action on the ground that there was no averment that the pursuer was willing to adhere down to the date of the bringing of the actionAt advising on 16th February 1940,
LORD PRESIDENT (Normand).This case was sent to the Whole Court for a decision on the question whether it is necessary that the pursuer in an action of divorce for desertion should aver willingness to adhere down to the date of raising the action, under pain of having the action dismissed as irrelevant. The averment that the defender had by a letter addressed to the pursuer admitted adultery was not founded on in the argument at any stage. On the question before the Court I am in complete agreement with the opinion which will be delivered by Lord Fleming.
I agree also with the observations of the Lord Justice-Clerk on the too frequent insincerity of the professions that the pursuer was down to the date of raising the action willing to adhere to the deserting spouse. In the common case, where the action is raised because the pursuer wishes to remarry, such professions are the merest fiction. If, on a sound construction of the Act, the period during which the aggrieved party must prove willingness to adhere is now fixed at three years from the beginning of desertion, our law will be brought into closer correspondence with the truth and with the realities of human nature. Specific evidence of the parties' attitude towards each other within the quadriennium has always been exacted. But after that evidence has been taken, the pursuer's affirmation that he has "all along" been willing to adhere has often been accepted as sufficient proof of a willingness enduring to the date of the summons. We have perhaps ceased to be disagreeably aware of the convenient indefiniteness of the usual formula. Yet there cannot be many who would lament if this almost empty ritual were now to disappear from our practice, and if attention were to be confined to the proof that the alleged desertion for the three years was truly desertion and not separation by mutual consent.
LORD JUSTICE-CLERK (Aitchison) (read by the Lord President).If the Divorce (Scotland) Act, 1938,23 had introduced desertion as a ground of divorce for the first time into the law of Scotland, it could hardly, I think, have been maintained that this libel was not relevant. Apart from the bearing, if any, of the judicial interpretation of the Act of 1573, cap. 55, which is now repealed, upon
the present Act, upon no known principle of the interpretation of statutes could section 1 (1) (a) have been construed as if it contained this proviso:"Provided that, notwithstanding 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, it shall not be competent for the Court to grant decree of divorce unless the pursuer proves that down to the date of raising the action he was willing to adhere to the defender." So to read the statute is, in my opinion, to take a liberty with the language which the Legislature has employed which far exceeds the limits of legitimate construction. It is to make the law, and not to interpret itThe argument, as I understand it, which adjects to section 1 (1) (a) of the Act of 1938 a condition which the Legislature has not expressed is derived from a practice which is said to have prevailed in the judicial administration of the Act of 1573 of requiring a pursuer to depone to a willingness to adhere down to the date when proceedings were commenced. But the Act of 1573, and section 11 of the Conjugal Rights (Scotland) Amendment Act, 1861,24 are no longer on the statute book. They were swept away by the Legislature. It is difficult therefore to understand how an interpretation of Acts that no longer exist can be held to override what the Legislature has now in plain terms directed, unless there are indications to be found in the language of the new Act that the former practice, assuming that a uniform practice existed, is to continue as if the old law had been unrepealed. I cannot find any such indication in the Act of 1938; on the contrary, the fact that the Act did not simply substitute the period of three years for the former period of four years, but, instead, repealed the earlier Acts in their entirety, indicates an intention on the part of the Legislature to supersede the technical requirements and refinements that had grown out of the cumbrous machinery of the old law, and which had ceased to serve any useful purpose, by a new Act to be construed according to the meaning of its own language. It was not disputed, however, that willingness on the part of the pursuer to adhere during the triennium remains an essential pre-condition of desertion, without which the matrimonial offence of desertion could not exist. It was so decided in the case of Macaskill v. MacaskillSC,25 which was concerned with the triennium only, and did not profess to deal with the point now raised, viz., whether the willingness to adhere must persist beyond the triennium down to the commencement of the action.
Although the Act of 1938 must be construed according to its own terms, it is legitimate to inquire how the law stood when the new Act reached the statute book, as bearing upon what was presumably the intention of the Legislature...
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