Divorce (Scotland) Act 1938

JurisdictionUK Non-devolved
Citation1938 c. 50


Divorce (Scotland) Act, 1938

(1 & 2 Geo. 6.) CHAPTER 50.

An Act to amend the law of Scotland with regard to divorce and dissolution of marriage.

[29th July 1938]

B E it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present, Parliament assembled, and by the authority of the same, as follows:—

S-1 Additional grounds of divorce.

1 Additional grounds of divorce.

(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; or

(b ) is incurably insane; or

(c ) has been guilty of such cruelty towards the pursuer as would justify, according to the law and practice existing at the passing of this Act, the granting of a decree of separation a mensa et thoro; or

(d ) has since the date of the marriage been guilty of sodomy or bestiality:

Provided that, where the ground of action is incurable insanity, the Court shall not be bound to grant a decree of divorce if in the opinion of the Court the pursuer has during the marriage been guilty of such wilful neglect or misconduct as has conduced to the insanity.

(2) For the purposes of paragraph (d ) of the foregoing subsection, the defender's guilt of sodomy or bestiality shall be held to be proved if an extract of a conviction therefor in any part of the United Kingdom is produced, and the application of such conviction to the defender is admitted or proved.

S-2 Effects of divorce on property rights.

2 Effects of divorce on property rights.

(1) A decree of divorce granted on any of the grounds specified in the foregoing section, except that specified in paragraph (b ) thereof, shall have the like effect as regards the estates of the parties and their rights and interests in and to any property, whether under marriage contract or otherwise, as if the decree had been granted on the ground of the defender's adultery.

(2) Where a decree of divorce has been granted on the ground specified in paragraph (b ) of the foregoing section, the Court may make such order, if any, as having regard to the respective means of the parties it shall think fit, for the payment by the pursuer, or out of any estate belonging to him or held for his behoof, or, in the event of his predeceasing the defender, by his executors, of a capital sum or an annual or periodical allowance to or for behoof of the defender and any children of the marriage.

(3) Any order made under the last foregoing subsection may be varied or recalled by a subsequent order.

S-3 Special provisions as to divorce on ground of insanity.

3 Special provisions as to divorce on ground of insanity.

3. The Court shall appoint a curator ad litem to the defender in any action of divorce on the ground of incurable insanity, and it shall be the duty of the General Board of Control for Scotland, on the request of the Court, to furnish to it a report as to the probability of recovery in the case of the defender to any such action.

S-4 Divorce proceedings after grant of judicial separation.

4 Divorce proceedings after grant of judicial separation.

(1) A person shall not be prevented from bringing an action of divorce, or the Court from pronouncing a decree of divorce, by reason only that the...

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