Dunlop v Dunlop
| Jurisdiction | Scotland |
| Judgment Date | 07 March 1950 |
| Date | 07 March 1950 |
| Docket Number | No. 25. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Strachan.
Husband and Wife—Divorce—Divorce for cruelty—"Cruelty"—Whether cruelty gives vested right to divorce—Case where no danger to pursuer if cohabitation resumed—Divorce (Scotland) Act, 1938 (1 and 2 Geo. VI, cap. 50), sec. 1 (1) (c).
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 … (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; …"
In an action for divorce on the ground of cruelty, held(diss. the Lord Justice-Clerk) that proof of such cruelty does not give the pursuer a right to divorce vested as at the date of its occurrence or of the subsequent separation of the spouses. Divorce will only be granted if the Court at the date of the proof is satisfied that the pursuer cannot with safety resume cohabitation.
In March 1949 Mrs Sara Knowles Harrison or Dunlop brought an action of divorce on the ground of cruelty against her husband, James Andrew Dunlop.
The pursuer condescended on a course of cruel conduct and specific acts of cruelty towards her during the period from October 1946 to July 1948, when the parties were resident in Germany, the defender being then serving with H. M. Forces. She further condescended on acts of cruelty committed by the defender subsequent to their return to the United Kingdom in July 1948. It appeared from the pursuer's averments that, during the whole period from October 1946 until October 1948, when she was forced to leave him, the defender had been drinking to excess and that the cruelty complained of had been committed almost entirely when he was under the influence of drink.
The defender denied that his conduct towards the pursuer had amounted to cruelty, but he admitted that, during their residence in Germany, he had been drinking to excess due to the nature of his military duties, and that, subsequent to their return to the United Kingdom, he had continued to drink to excess chiefly because of financial worry. He averred, however, that he had now adopted temperate habits, and that his life was now normal, and that cohabitation could be resumed without danger to the health of the pursuer.
On 27th July 1949 the Lord Ordinary (Strachan), after a proof, assoilzied the defender from the conclusions of the summons.
At advising on 7th March 1950,—
LORD MACKAY .—In the law referable to cruelty between spouses as affording to one, the offended spouse, certain consistorial remedies, with the proper outlook upon the long history of development and administration, and this alike whether we look before the Act of 19384 or whether we consider the time stretching out beyond that date, in all cases in the make-up of the legal conception two factors must ever be considered. Firstly, the nature or quality of the sort of treatments which will sustain the claim ofsœvitia and, secondly, the intensity or degree in which any kind of treatment has, in the particular case, been
applied. Meantime I shall require to cite only one ruling opinion from the RussellELR case1—Lord Davey at p. 467: "The Court is not entitled to adopt its own view of whatdegree or kind of cruelty, or what description of behaviour or conduct, … should be a ground of judicial separation."Further, it is in every case (now as before 1897) true that the spouses concerned necessarily subject to the Court's scrutiny the mutual behaviour of both, over the whole, or the selected, period. In considering the present case, I keep these elementary considerations in view in so far as relevant to the contentions before us.
The Lord Ordinary, having considered the present case, has found reason to assoilzie the defender from the conclusion for divorce; and, of course, in consequence it has been unnecessary to deal with custody or access to the three children of the marriage. The Lord Ordinary's treatment of the evidence as a whole has struck me as almost exceptionally measured and careful. Nor, so far as I heard, was any logical criticism directed upon it unless it be such as to suggest, and no more (as was however done), that the method of isolating incident and incident and date from date may cloud over the primary need for treating the relevant portion of the life as one reasonable whole.
To some slight extent my mind concurs in the prior necessity of integrating the period selected by the pursuing spouse. It may, however, be here stated that, so far as the total body of testimony was offered on both sides to us, there was, in my humble opinion, nothing shown whatsoever, up to the date of the second of three separate residences in Germany, that, to wit at Itzehoe for thirteen months, which could furnish material either for direct inference of marital cruelty or even for these minor incidents which the methods of the English Courts have isolated out as "articles" which may be properly "laid" as filling out but not as themselves establishing cruelty—Lord Herschell in Russell v. RussellELR.2
The conduct of both spouses over the two last periods in Germany (say January 1947 to midsummer 1948) therefore merits serious consideration, and, I desire to add, the mutual conduct of both of them after the conditions were so enormously altered by the termination ofquasi-military employment; by the return of the family to England for some months, living with friends at Whitley Bay, and then on to the original marriage home at Kingsknowe Crescent; all taken along with the attempts and ultimate success of the husband to re-enter civilian employment, when the special military atmosphere and the very frequent club life are no longer effective elements on both spouses—all that makes the post-Germany period a thing by itself. In all that time there appears to me to arise only one possible incident and that occurring on the last evening preceding separation.
I have, however, while recalling these necessary reminders, to repeat that the Lord Ordinary's grounds are long, careful and logically
unattacked. On the whole, my mind goes with him, although, if left entirely unhampered by the doctrines of the appellate Judge's handicap, never absent from the minds of Scottish appellate Judges, but now repeated with a fresh emphasis, I might have slightly differed from the severe standards which he has applied to one or two of the "incidents."The question for me at least now is, On what grounds or submissions did counsel for the pursuer endeavour to find material for an outright revisal, and reversal, of the reasons assigned below? The main (and in the end I think substantially the only) such ground was founded wholly upon a proposed construction of the twelve-year-old Act of Parliament for Scotland—the Divorce (Scotland) Act, 1938.1 The submission turned on the words of section 1 (1) (c) of that Act, supported by purported indications drawn from certain (quite different) words in the neighbouring subsections (1) (a) and (1) (d) of the same first section. Now, as I understand the answers obtained by our efforts, the proposition, in both the forms which it assumed, sought to establish and affirm that these three lines of legislative material have changed what was the law of Scotland up to 29th July 1938, and in a drastic manner. It was so, accordingly, that counsel avoided all proper and full discussion as to the settled basis of the then existing law—a basis which I think may here be taken to be in accordance with the speeches of Lord Herschell and Lord Watson in Russell v. RussellELR,2 for England; and of Lord President Inglis, Lord Adam and Lord Ashmore (among others), for Scotland.
The first form of the argument for such statutory reforming of the law ran definitely thus:—Albeit the statute allows the Courts to apply a new and further remedy (divorce a vinculo instead of, or to follow on, divorce a mensa et thoro) for conduct affirmed to be "cruel," it is no longer permissible, in adjudging what conduct has amounted to legal cruelty, to take into consideration, to any effect or extent, the probability of future danger to life or limb or health if the consortium should be, by the Court's refusal, held to be one suitable to remain and continue; but that the question has now become one of a "vested right" to obtain decree of divorce, upon a decision which shuts its eyes to future consequences, and affirms that the facts, as at the selected date, called the "date of separation" of the spouses, were facts (including old or even stale facts) which amount to cruelty orsœvitia. I am myself not clear whether the argument admitted, or did not, that "cruelty," now the statutory word, must amount to sœvitia, as so long observed in Ecclesiastical Courts, in the Appeal Courts of Scotland, and in House of Lords decisions.
Before I pass to consider what force lies in the argument, I think it right to indicate here the second form which the submission took in the hands of senior counsel. It seems to me to be a form adopted perforce because of the difficulties facing counsel. But it became this:—(a) the "vested right" contended for is a right settling on the
person of the offended spouse upon, and at the very time of, the infliction of a single act of gross violence or of the culminating act of a series of violences, which, however long after, the Court assesses as having in the past attained the requisite standard forsœvitia. Thus neither the health nor safety of the spouse as at the date of the Court's decision, nor at that of the proof led, nor even such risks as the condition of affairs display at the date when the two fell apart, has any relevance whatever to shake that vested right to decree of divorce.I shall return to the general considerations urged for either of these results. But, after all, the sole...
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