Borland v Borland
| Jurisdiction | Scotland |
| Judgment Date | 19 March 1947 |
| Date | 19 March 1947 |
| Docket Number | No. 45. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Mackintosh.
Husband and Wife—Divorce—Desertion—Willingness to adhere—Defender obtaining divorce in foreign Court during triennium—Whether necessary for pursuer to aver and prove willingness to adhere throughout triennium—Divorce (Scotland) Act, 1938 (1 and 2 Geo. VI, cap. 50), sec. 1 (1) (a).
The Divorce (Scotland) Act, 1938, enacts, by sec. 1:—"(1)…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 undefended action of divorce at the instance of a husband against his wife on the ground of her desertion, the pursuer stated, when giving his evidence, that his willingness to adhere to the defender extended from the date of her leaving him only to a date, within the three years, at which he had received information that she had brought an action of divorce against him in the Court of Nevada, U.S.A., and had obtained decree.
Held (diss. Lord Keith) that there are no exceptions to the rule that a pursuer's willingness to adhere must extend over the whole period of three years, and decree refused.
Macaskill v. Macaskill, 1939 S. C. 187, discussed and followed, but opinions that it was desirable that the law as laid down in that case should be submitted to the House of Lords for consideration.
Process—Report to Inner House by Lord Ordinary—Attendance of Lord Ordinary at hearing.
Where, in a report to the Inner House, the Lord Ordinary reports the whole cause with a full opinion, his attendance at the hearing of the case is not necessary unless requested by the Court.
On 27th April 1946 John Borland, residing at 26 Royal Terrace, Edinburgh, brought an action of divorce on the ground of desertion against his wife, Mrs Alice Carmen Olds or Borland, whose last known address was in California. United States of America. The action was undefended.
On 19th July 1946 a proof was led, which established that the defender, who was an American citizen, and the child of the marriage had been evacuated to America on 4th November 1939, following upon the outbreak of war; that the defender had remained there; and that the parties had not lived together since that date, the pursuer having continued to live in Scotland. The pursuer contended that at that date the defender deserted him, but the Lord Ordinary found that her desertion began at the earliest in July 1942. In June 1943 the pursuer had served upon him an action at the instance of his wife, brought in a Court of the State of Nevada, U.S.A., seeking divorce on the ground of alleged mental cruelty. The pursuer took no action in the matter, it being impossible to have any appearance entered on his behalf before the date when the case would be dealt with. On 12th October 1943 he received a certified copy of a decree granting divorce. The pursuer stated, when giving his evidence, that until that date he was willing to take the defender back to live with him, but that after that date he was no longer willing to do so.1
The pursuer pleaded:—"(1) The defender, being the wife of the pursuer, having wilfully and without reasonable cause deserted the pursuer and persisted in such desertion for a period of not less than three years, decree of divorce should be granted as concluded for."
The Lord Ordinary (Mackintosh) on 19th December 1946 reported the case with a written opinion to the Inner House.
At advising on 19th March 1947,—
LORD PRESIDENT (Cooper).—This is an undefended action for divorce on the ground of desertion which has been reported to this Division by the Lord Ordinary because of the legal difficulties to which it gives rise.
Before dealing with these difficulties I shall briefly dispose of a preliminary argument by which counsel sought to avoid them. That argument was directed to showing from the evidence that the commencement of the desertion could be antedated to 4th November 1939, in which event the triennium would expire on 4th November 1942, before the occurrence of the incidents which create the problem. The Lord Ordinary rejected this view, and having considered the evidence bearing upon the matter I have no doubt that he was right, and that it is impossible to hold that the defender was in desertion prior to 1942. The exact date is in this case unimportant.
Upon this view the special feature of the case is that about December 1942 the defender wrote to the pursuer intimating that she wished a divorce; that in the spring of 1943 she raised an action in the State of Nevada for divorce on the ground of "mental cruelty" (unspecified in the writ); and that on 4th August 1943 decree in this action was granted in her favour. The pending proceedings were intimated to the pursuer too late to enable him to intervene. The evidence establishes that he was and is domiciled in Scotland, and there is nothing to show that the defender had any connexion with the State of Nevada. From the standpoint of international validity the Nevada decree is worthless and would not be recognised in Scotland.
The attitude of the pursuer, as disclosed with the most commendable candour in evidence and in his pleadings as amended, is this. Until 12th October 1943, when he received a certified copy of the decree of divorce, he was in the full sense willing to adhere. After that date (to quote his own words) "I would not have taken my wife back." He makes it clear—and the Lord Ordinary has believed him—that the one thing which altered his attitude was her conduct in obtaining the decree of divorce, but for which he would willingly have resumed cohabitation.
The case thus raises sharply a vexed question in the law of desertion, which may be stated in various forms. Must every pursuer in an action for desertion aver and prove willingness to adhere throughout the whole course of the triennium? Is the rule as thus laid down inMacaskillSC8 a rule of universal application, or will it suffer exception, and if so in what circumstances?Are there defences pleadable in answer to an action of adherence which would not afford grounds for judicial separation or divorce? In particular, must this pursuer be denied the remedy to which he would otherwise be entitled because in the course of the triennium his attitude towards his wife was transformed by her extreme action in procuring the Nevada divorce, the effect of which was, I presume, to dissolve the marriage according to the law of Nevada (and possibly elsewhere in the United States) and which, in any event, was well calculated to destroy in most husbands any sincere desire for a resumption of cohabitation? To put the question in yet a different form, if this defender had changed her mind and offered to adhere,
could the pursuer have successfully defended an action of adherence and aliment on the ground that she had obtained the Nevada decree?The first effort of counsel was directed to showing that the rule inMacaskillSC9 was not intended to be of universal application but admitted of exceptions. I do not so read the opinions. It is true that the Lord Justice-Clerk went a considerable distance in an effort to dilute the enthusiasm to be required from the deserted spouse, but the ratio of the decision as expressed is, to my mind, unmistakable in its generality. It was maintained before us that the single objection against which the Court was seeking to guard in that case was divorce by mutual consent, and this is true. But I cannot see how the pursuer can make anything of that point in this case, since on his own showing he and his wife were living separate by mutual consent after the Nevada decree. I cannot find inMacaskillSC10 a definable via mediabetween willingness to adhere and separation by mutual consent.
The later history of MacaskillSC11 does not materially clarify the position. In PrattELR12the Lord Justice-Clerk's opinion was quoted with approval by Lord Macmillan and Lord Thankerton. In BellSC13 seven of our Judges cited MacaskillSC,14 either with approval or without indication of dissent, and none indicated that the rule which it enshrines was too widely stated. In the House of Lords15 three of the learned Lords indicated either doubts or reservations with regard to MacaskillSC16 and two indicated approval, all evidently treating the case as one which laid down a rule of general application to which no exception was admissible. In WilkinsonSC17 the Lord President, with the concurrence of the other Judges of this Division, indicated a reservation of opinion as to possible exceptions to the generality of the rule in Macaskill,18 and in the House of Lords19 Lord Atkin, in a dissenting judgment, appears to disapprove of the rule.
From all this I conclude that, while doubts have been expressed in various quarters as to whether the rule is not too absolutely stated inMacaskillUNK,20 there is no sufficient support for the view that Macaskill21 does not mean what it says. Macaskill22 may require to be reconsidered, modified or overruled, but it cannot be interpreted as...
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