Breen v Breen
| Jurisdiction | Scotland |
| Judgment Date | 13 July 1961 |
| Docket Number | No. 22. |
| Date | 13 July 1961 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Cameron.
Husband and WifeDivorce for crueltyAction defended by curator ad litem on ground of defender's insanityM'Naghten rulesProtection of injured spouseWhether pursuer entitled to divorceDivorce (Scotland) Act, 1938 (1 and 2 Geo. VI, cap. 50), sec. 1 (1) (c).
An action of divorce on the ground of cruelty, brought by a wife against her husband, was defended on the ground of the husband's insanity at the time of the assaults committed by him upon his wife.
The defender was diagnosed as a schizophrenic in June 1954. He married the pursuer in December 1954, and committed acts of violence upon her intermittently from February 1955 until August 1955, when he entered a mental hospital, and again from February 1956, when he came out of hospital, until his final return there in November 1956.
There was not a total alienation of reason, and the expert medical witnesses were agreed that the defender knew the nature and quality of his acts. They would, however, have been prepared to certify him as insane from at least February 1955.
Held that the evidence disclosed that the defender's assaults upon the pursuer were symptoms of, and carried out under the influence of, his insanity; that insanity, if shown to be related to the acts of cruelty of which complaint was made, was a good defence to an action of divorce on the ground of cruelty; and defender assoilzied.
Opinion, per Lord Strachan, that certifiability was not the test; and that, to establish a defence of insanity, it was necessary to show on the facts of the particular case that the defender suffered from such unsoundness of mind as to make it impossible, or at least unreasonable, to say that he was guilty of cruelty.
Observed, per Lord Strachan, that in the law of Scotland before the Act of 1938, a decree of separation on the ground of cruelty was granted for the protection of the injured spouse.
Observed, per Lord Mackintosh, that, whatever might be said about an action of separation on the ground of cruelty, it was not true to say that the primary or main purpose of an action of divorce on that ground was to afford protection to the injured spouse.
Observed that through operation of the M'Naghten rules, decree of divorce would, on the facts of this case, have been granted in England, but observed further that the M'Naghten rules are not part of the law of Scotland.
M'Lachlan v. M'Lachlan, 1945 8. C. 382,explained and commented upon.
M'Kenzie v. M'Kenzie, 1960 S. C. 322,disapproved.
Mrs Janet M'Murray Or Breen brought an action of divorce against her husband, Martin Breen. A curator ad litem appointed to the defender, and lodged defences on his behalf.
The parties made, inter alia, the following averments, the italicised passages being added by amendment after the Debate Roll discussion:(Cond. 1) "The parties were married to each other at Blantyre on 30th December 1954. " (Cond. 3) "After the marriage the parties lived together in the pursuer's mother's house at 39 Nursery Place, Blantyre. The marriage was reasonably happy for the first few months but thereafter relations between the parties deteriorated because of the unstable and violent disposition of the defender. A few months after the marriage the defender, in the course of a quarrel, attempted to strangle the pursuer with a silk stocking. In or about May 1955 he began to complain of headaches. He blamed the pursuer for this. He refused to remain in steady employment. The parties began to have numerous quarrels in the course of which the defender would throw small articles of furniture, magazines and papers about the house. Shortly thereafter the parties separated. In or about August 1955 the pursuer was informed that the defender had been admitted as a voluntary patient to Glasgow Royal Mental Hospital. She visited him there regularly and he was discharged into her care for Christmas 1955. Between then and March 1956 the defender was occasionally allowed to spend week-ends with the pursuer. On one occasion, while he was spending a week-end with her, he accused her falsely of associating with other men. He began pulling articles from drawers and burning them. The pursuer tried to restrain him, whereupon he pushed her on to a chair and tried to suffocate her with a pillow. In or about March 1956 the defender was discharged from said hospital and the parties resumed married life in the pursuer's mother's house. Shortly thereafter the parties quarrelled because the defender refused to return to said hospital for an interview and the defender left the pursuer and returned to live with his parents. Since that time the parties have not lived together nor had sexual relations with each other. With reference to the averments in answer, admitted that the defender has received certain psychiatric treatment. No admission is made as to the nature and extent of any mental disturbance from which he has suffered or is suffering, or as to his willingness to receive treatment. Quoad ultra the averments in answer so far as not coinciding herewith are denied. Explained that on the occasions averred upon which the defender assaulted the pursuer he knew what he was doing and Tie also knew that what he was doing on said occasions was wrong." (Ans. 3) "Admitted that after their marriage the pursuer and the defender lived together at 39 Nursery Place, Blantyre. Admitted that the marriage was unhappy on account of the defender's mental condition. Believed to be true that on a number of occasions the defender violently ill-treated the pursuer. Admitted that the defender entered the Glasgow Royal Mental Hospital as a voluntary patient on 6th August 1955, that he remained as a voluntary patient in the said hospital until 28th February 1956, and that he left the pursuer shortly after his discharge, since when they have neither lived together nor had sexual relations. Quoad ultra not known and not admitted. Explained and averred that on 2nd June 1954 at the request of his family doctor, the defender underwent examination at the Psychiatric Clinic of the Western Infirmary, Glasgow. It was found that he was suffering from delusions of persecution. While at his work a few days before the said examination he thought that he was being affected by gas, and that he was being alternately inflated and deflated. He also complained of an inability to visualise what he read. Upon his admission to the Glasgow Royal Mental Hospital in August 1955 the defender's illness was diagnosed as being schizophrenia. As a result of treatment his mental state subsequently improved, and at the time of his discharge from hospital in February 1956 his condition was described as having been relieved. He was readmitted as a voluntary patient to the said hospital on 28th October 1956, where he has remained as a voluntary patient ever since, occasionally paying visits to his parents on Sundays. Since about May 1954 the defender has been suffering from a persistent schizophrenic condition, which has been interrupted by periods of slight remission. During this period he suffered from insane delusions that the pursuer was associating with other men.It is believed and averred that the defender was prompted by these insane delusions to assault the pursuer on the occasions of which she complains solely in order to punish her for her imagined infidelity. Had criminal proceedings been instituted against the defender in respect of any one of the violent assaults which, as the pursuer avers, were inflicted upon her between January 1955 and August 1956, he would have been medically certified as an insane person, and a special defence would have been stated and supported by medical opinion to the effect that he was certifiably insane at the time when the said assault occurred. The defender has, however, never been certified as an insane person, since on each occasion when he was advised to do so he voluntarily submitted to medical treatment and accordingly his formal certification and detention as an insane person were unnecessary." (Cond. 4) "Thereafter the defender visited the pursuer at her mother's house at irregular intervals. On some occasions he stayed only for a few minutes and on other occasions for one or two hours. He attempted to start quarrels with the pursuer. On other occasions he would sit and watch every move that she made but say nothing to her. In or about July 1956 he visited the pursuer while he was very much under the influence of drink. The pursuer offered him a cup of tea and tried to get him to lie down. Suddenly he attacked the pursuer, gripping her throat and pushing her on to the bed. He attempted to strangle her and demanded that she should return his wedding ring. The pursuer, who was terrified, managed to break free and run to a neighbour's house. Eventually the defender's father and brother who had been sent for took the defender away with them." (Ans. 4) "Not known and not admitted. Reference is made to the preceding answer." (Cond. 5) "As a result of the defender's said conduct the pursuer's health has been impaired. She has suffered physical violence at his hands. Further, she suffers from asthma and the defender's conduct has precipitated severe attacks for which she has required medical attention. Since she has been living apart from the defender her health has improved considerably. She is afraid of the defender and believes and avers that she could not in safety to her health resume married life with him." (Ans. 5) "Not known and not admitted."
The pursuer pleaded:"(1) The defender's averments relating to his mental condition being irrelevant et separatim being lacking in specification should not be remitted to probation. (2) The defender having been guilty of cruelty towards the pursuer as condescended on, decree of divorce should be pronounced as concluded for."
The defender pleaded:"The defender not having been guilty of cruelty towards the pursuer, decree of absolvitor should be...
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Williams v Williams
...S.C. 379, 1955 S.C. 371. In M'Kenzie v. M'Kenzie 1960 S.C. 322, Lord Walker held that insanity was no defence, but in Breen v. Breen, 1961 S.C. 158, the Second Division held that insanity was a defence. This was a case which would not have come within the M'Naghten Rules, but the M'Naghten ......
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Brennan v H. M. Advocate
...in spite of its different definition of insanity—the so-called M'Naghten rules which form no part of our law [see Breen v. BreenSC 1961 S.C. 158]—has reached precisely the same conclusion. This we deduce from the opinion of the Court delivered in the Court of Appeal by Lawton, L.J., in Reg.......