Beveridge v Beveridge
| Jurisdiction | Scotland |
| Judgment Date | 13 March 1963 |
| Docket Number | No. 56. |
| Date | 13 March 1963 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Husband and WifeAlimentInterim alimentNeither party willing to adhere to the otherNeither party having reasonable cause for nonadherenceWhether wife entitled to interim aliment.
A wife brought an action against her husband in the Sheriff Court, craving an award of aliment "continuing so long as the defender shall refuse to receive and entertain the pursuer as his wife." The parties had lived apart for several years, the husband was not willing to take his wife back to live with him, and the wife was not willing to adhere to her husband. Neither party had contended that there was reasonable cause justifying non-adherence.
Held that a wife who without reasonable cause was in breach of her obligation to adhere was not entitled to found upon the correlative obligation of her husband to aliment her; and that in an action for interim aliment, as in an action of adherence and aliment, she must be willing to fulfil her continuing obligation to adhere before she could found on the corresponding obligation of her husband to aliment her.
Donnelly v. Donnelly, 1959 S. C. 97,distinguished.
Mrs Jane Ritchie Anderson Or Beveridge brought an action of adherence and aliment against her husband, John Beveridge, Junior, in the Sheriff Court at Kinross. She craved the Court "(1) To find and declare that, the pursuer being the lawful wife of the defender, the defender is bound to adhere to the pursuer, and to cohabit with her and to treat and entertain her at bed and board as his wife and to ordain the defender to adhere to the pursuer and to cohabit with her and to treat and entertain her at bed and board as his wife and that during their joint lives; (3) failing the defender adhering to the pursuer, to grant decree against the defender for payment to the pursuer of aliment for herself during the joint lives of the pursuer and the defender "
On 20th December 1961, after a proof, the Sheriff-substitute (Kydd) held that the husband was not willing to take the wife back to live with him, and that the wife was not willing to adhere to the husband. In these circumstances, he refused the crave of the initial writ and granted decree of absolvitor.
The Sheriff-substitute in the note annexed to his interlocutor said:"The action is one of adherence and aliment, but, on the evidence, I hold that the pursuer has not established willingness to adhere on her part At the proof the defender frankly admitted that he was not then willing to receive the pursuer back to live with him. That is the situation to which the law falls to be applied.
"Mr Smith for the pursuer maintained that a husband's obligation to aliment his wife remained so long as the marriage subsisted, and referred to Donnelly v. DonnellySC, 1959 S. C. 97. Even if the evidence did not warrant the grant of a decree of adherence, the Court could, and must, grant decree for alimentBarrow v. Barrow, (1960) 76 Sh. Ct. Rep. 3. While it was true that in Jack v. JackSC, 1962 S. C. 24, Lord Guest in the Outer House had disapproved the decision inBarrow, it was submitted on behalf of the pursuer thatJack was distinguishable from the present case and was not in point. In Jack the defender had been willing to adhere, but in Barrow, which was an undefended case, it must be assumed that the defender was not willing to take his wife back. Reference was also made to Burrell v. BurrellSC,1947 S. C. 569, per Lord President Cooper at p. 578, andBurnett v. BurnettSC, 1958 S. C. 1. With reference to the omission of an averment of willingness to adhere on the part of the pursuer, Mr Smith argued that it was settled law that such an averment, although good practice, was not essential, because willingness to adhere was implicit in the form of action raised.
"Mr Wilson, for the defender, began by criticising the omission from the pleadings of an averment that the pursuer was willing to adhere, and went on to found strongly on the decision of Lord Guest inJack. In that case, Lord Guest had stated in terms that the husband's duty of support was correlative to the wife's willingness to adhere, and that willingness to adhere was a prerequisite of a wife's success in an action of adherence and aliment, that similarly, in his view, it was a prerequisite where the action was forinterim aliment, and that it followed that it was a prerequisite of the right of a wife to be supported by her husband during the subsistence of the marriage. Mr Wilson maintained that the Court should look no further than the attitude of the pursuer, and that it was immaterial that the defender had indicated that he was not now prepared to resume married life with the pursuer. He pointed out that there was on record a plea to the relevancy of the pursuer's case, and contended that it was still open to the Court to sustain it, although the interlocutor allowing proof had not specifically stated that it was a proof before answer. I have not found this an easy case, in spite of the facts (1) that it is in form an action for so-called "permanent" aliment, in which the crave for adherence cannot be granted, and, (2) that, even if it is proper to consider it as being for interim aliment, it appears to be covered by the observations of Lord Guest in JackSC, 1962 S. C. 24. In that case, Lord Guest expresses the opinion thatBarrow, (1960) 76 Sh. Ct. Rep. 3, was wrongly decided. He criticises Sheriff Garrett's use of the term desertion, and refers to Lord President Cooper's statement inBurrellSC, 1947 S. C. 569, that desertion is a bilateral transaction which involves a spouse who deserts and a spouse who is simultaneously willing to adhere. In arriving at his decision inJack, however, Lord Guest himself speaks of a wife who is in desertion of her husband and quotes an observation of Lord Pearson in Milne v. MilneUNK, (1901) 8 S. L. T. 375, if indeed she were still in desertion and refusing to cohabit, he being willing to receive her, she would plainly have no right to demand aliment.
"In the present case, as also in Barrow, 76 Sh. Ct. Rep. 3, one may legitimately infer from the fact that the action was undefended that the defender is not willing to receive the pursuer.JackSC, 1962 S. C. 24, was a decision on relevancy, and I do not have the pleadings before me. The case was drastically amendedindeed transformedbefore it reached the Inner House, but in his opinion Lord Strachan specifically states that the pursuer does not question the bona fides of the defender's willingness to receive her back to live with him. In my opinion, however, particularly in view of the criticism of the decision in Barrow, Lord Guest's decision cannot be read as depending upon an admission that the defender was genuinely willing to resume married life with the pursuer.
"The doubt that I entertain springs from observations in certain cases. In Coutts v. CouttsUNK, (1866) 4 Macph. 802, Lord President McNeill observes, at p. 803: "If the defender had not said that he was willing to receive her back, or if he had refused to receive her, there would have been a different case " It is true that it is not said that the action would in that event have been competent and relevant. In Williamson v. WilliamsonUNK, (1860) 22 D. 599, there was no conclusion for adherence, although there was an averment that the defender was in desertion and the action was undefended. The report suggests that the decision was reached with some hesitation. Other authorities bearing on the subject are Christie v. Christie, 1919 S. C. 576; Fraser on Husband and Wife, (2nd ed.) vol. i, p. 840; Bell v. Bell, Feb. 22, 1812 F. C.; Crombie v. CrombieUNK, (1868) 6 Macph. 776; Adair v. Adair, 1932 S. N. 47; and Smith v. SmithUNK,(1874) 1 R. 1010.
"Having considered these authorities, I have reached the conclusion, (first), that, on the footing that it is competent for me to treat this action as a claim for interim aliment (the crave for adherence having failed), the ratio of Lord Guest's decision inJack applies, and I must find for the defender, and, (second), that, if the action is properly treated as an action for permanent aliment, as in point of form it is, it likewise fails, because the evidence disables me from granting the crave for adherence to which the crave for aliment is subsidiaryWalton on Husband and Wife, (3rd ed.) p. 142. Because none of the pleas-in-law stated for the defender accurately expresses my ground of decision, I have given effect to my conclusion by refusing the whole crave of the initial writ."
The pursuer appealed to the Court of Session, and the case was heard before the Second Division (without Lord Strachan) on 20th and 21st February 1963.
Before the appeal the pursuer abandoned her conclusion for adherence and aliment, deleted her existing crave and substituted a crave, "To grant decree against the defender for payment to the pursuer of aliment for herself continuing so long as the defender shall refuse to receive and entertain the pursuer as his wife."
At advising on 13th March 1963,
LORD JUSTICE-CLERK (Grant).This case started in the Sheriff Court as an action of adherence and aliment. The Sheriff-substitute, after proof, found that the pursuer was unwilling to adhere, refused the crave and granted decree of absolvitor. After the appeal had been taken, the crave and both parties' pleas-in-law were radically amended and the action is now one for aliment "continuing so long as the defender shall refuse to receive and entertain the pursuer as his wife," i.e., for
interim aliment. The Sheriff-substitute's findings in fact are accepted by both parties, and it is common ground that the parties have been living separate since 1955, that the defender is unwilling to take the pursuer back, and that the pursuer is unwilling to adhere to the defender. Furthermore, it is not contended that either spouse has been guilty of adultery or cruelty so as to justify the other's failure to adhere. The issue now before us is whether...To continue reading
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