Hutchison v Hutchison
| Jurisdiction | Scotland |
| Judgment Date | 19 November 1908 |
| Docket Number | No. 30. |
| Date | 19 November 1908 |
| Court | Court of Session |
Lord Guthrie, Lord President, Lord Kinnear, Lord Pearson.
Husband and WifeDivorceDesertionProof of willingness of deserted spouse to adhere.
A wife left her husband's house and brought an action of separation against him. The husband lodged defences, in which he made a formal offer to receive back his wife, and the husband was assoilzied. Nineteen years afterwards, the wife having remained in non-adherence, the husband brought an action of divorce for desertion against her.
Held (rev. judgment of Lord Guthrie), thatin the absence of evidence to establish either (1) that the offer of the husband made in the separation action was not a genuine offer, or (2) that there had been a change of disposition on the part of the husband so that the offer did not remain a standing offerthe offer made in the separation action was in itself sufficient, without proof of any subsequent offer or remonstrance, to establish the husband's willingness to adhere; and divorce granted.
(SeeHutchison v. Hutchison, Dec. 13, 1890, 18 R. 237, as to custody of children, and previous report, 1908, S. C. 1001.)
On 2d January 1908 John Patterson Hutchison, sometime photographer, Hawick, brought an action of divorce for desertion against his wife, Mrs Agnes Forrest Stevenson or Hutchison.
He averred that the parties were married on 31st July 1883; that on 18th January 1888 his wife's father came to his house and took his wife away without his consent or knowledge, and that she had not since returned; that in 1888 his wife brought an action of separation and aliment against him, which pended before Lord Fraser, who after a proof, assoilzied him from the conclusions of the summons, and that in delivering judgment Lord Fraser expressed the hope that the wife might return to the husband, who, both on record and now, offered her a home. The pursuer further averred:(Cond. 8)Since the judgment in the case referred to in the last condescendence (the separation case) was given on 16th November 1888, the pursuer has repeatedly asked the defender to return to his society, fellowship, and company, and he has intimated to her that his home was still open for her; but, notwithstanding said invitations, she wilfully persisted, and still persists, to remain separate from him, and in consequence thereof the present action has been rendered necessary.
In answer the defender denied that the pursuer had ever asked her to return to him, and pleaded, inter alia;(3) The defender, not being in wilful and malicious desertion of the pursuer, should be assoilzied.
A proof was allowed and led; and on 26th May 1908 the Lord Ordinary (Guthrie) pronounced an interlocutor assoilzieing the defender from the conclusions of the summons.*
The pursuer reclaimed, and the case was heard on 17th, 18th, and 19th November 1908.
Argued for the pursuer and reclaimer:(1) Malicious desertion on the part of the wife was, apart from other proof, sufficiently established by her conduct in bringing the action of separation, and by her subsequent abduction of the child and concealment of its place of residence.1 That alone was sufficient to entitle the husband to divorce. (2) Privy remonstrance was not required as a solemnity; it was always a...
To continue reading
Request your trial
-
Bell v Bell
...Whole Court case of Watson v. Watson 17 Reffie 736—a judgment which was referred to by Lord President Dunedin in Hutchison v. Hutchison 1909 S.C. 148 as the last word on the subject. Lord President Inglis said: "It is almost superfluous to notice that the law thus announced and declared was......
-
Bell v Bell
...Causes Act, 1937 (1 Edw. VIII and 1 Geo. VI, cap. 57). 30 1 and 2 Geo. VI, cap. 50. 32 24 and 25 Vict. cap. 86. 33 17 R. 736. 34 1909 S. C. 148. 31 22 R. (H. L.) 32, at p. 40, [1895] A. C. 36 1939 S. C. 187. 37 [1939] A. C. 417. 35 1 Edw. VIII and 1 Geo. VI, cap. 57. 39 1939 S. C. 187. 40 [......
-
Woodhouse v Woodhouse
...and granted decree of divorce. 1 Watson v. WatsonUNK, (1890) 17 R. 736;Mulherron v. Mulherron, 1923 S. C. 461;Hutchison v. Hutchison, 1909 S. C. 148. 2 Barrie v. BarrieUNK, (1882) 10 R. 3 (1895) 22 R. (H. L.) 32, [1895] A. C. 384. 1 17 R. 736. 2 1909 S. C. 148. 1 17 R. 736. ...
-
Monahan v Monahan
...Macdonald at p. 742; Murray v. MurrayUNK, (1894) 21 R. 723; Forbes v. ForbesUNK, (1900) 8 S. L. T. 5];Hutchison v. Hutchison, 1909 S.C. 148; Goold v. Goold, 1927 S. C. 177, Lord President Clyde at p. 1 11 R. 105. ...