Jack v Jack
| Jurisdiction | Scotland |
| Judgment Date | 27 October 1961 |
| Docket Number | No. 4. |
| Date | 27 October 1961 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Guest.
Husband and Wife—Aliment—Wife living separate from husband on account of husband's alleged cruel conduct towards her—Husband's conduct not amounting to sœvitia—Wife thus unable to bring action of separation—Wife unwilling to adhere—Whether wife entitled to sue for permanent aliment.
A wife left her husband on account of his allegedly intolerable conduct towards her. She did not claim that his conduct amounted tosœvitia, but she was nevertheless unwilling to adhere to him. She then brought an action against him in which she concluded for declarator that she was not bound to adhere to her husband on the ground that his conduct towards her had given her reasonable cause for non-adherence, and for payment of permanent aliment.
Held (1) that, although the law recognised that conduct falling short of sœvitia might be a good defence to an action of divorce for desertion, as being reasonable cause for non-adherence, such conduct could not ground a substantive action of separation or for payment of aliment; and (2) that since the action was one for payment of permanent aliment and did not also conclude either for separation or for adherence, it was incompetent.
Observed that it was for the Legislature and not for the Court to introduce, if so advised, the new ground of separation for which the pursuer was in effect contending.
Viola Victoria Craig or Jack brought an action against Robert Duthie Jack, her husband, in which she concluded:—"For payment by the defender to the pursuer of the sum of £27 per month, payable in advance, and enduring so long as the defender shall refuse to receive and entertain the pursuer, and for the expenses of the action."
The pursuer's averments were, inter alia, as follows:—(Cond. 2) "After the marriage the parties resided together at various addresses in England. On 8th March 1955, the defender pleaded guilty to a charge of embezzlement and was sentenced to four years' imprisonment by the High Court of Justiciary at Edinburgh. After his discharge from prison, the parties resumed cohabitation at 21 Albany Street, Edinburgh. Throughout the periods that the parties cohabited, relations between the parties were frequently unhappy due to the defender's duplicity over money matters with the pursuer, and to his abuse of the pursuer. The defender physically assaulted the pursuer on one occasion in July 1958, when he struck her repeatedly on the face and body, putting her into a state of extreme nervousness and alarm. On another occasion in October 1958, hereinafter condescended on, the defender called the pursuer a “whore.” On or about 9th December 1958 the defender left the pursuer. Since then the parties have not lived together, nor have they had sexual relations. …" (Cond. 3) "Immediately after he left, the defender sent the pursuer £5. Apart from that sum, he has never maintained or alimented the pursuer since the parties separated, until interim aliment was awarded in the present cause, nor has he until the raising of the present action offered to adhere to her or to provide a home for her. It is believed and averred that the defender is at present employed doing work for chartered accountants, and earns over £10 per week. In these circumstances, the pursuer seeks decree as concluded for. … It is specifically denied that the defender is willing to live with the pursuer or that he would like to live with her. It is explained that from the outset of the parties' married life the pursuer had to maintain the parties, and meet all necessary expenditure, including the cost of the wedding ring. The pursuer was employed as a housekeeper during the defender's term of imprisonment. On his release he was unwilling to resume cohabitation with her, and suggested that her employer should retain her in his service. As previously averred, he has accused her of leading an immoral life, and in a letter to her cousin, George Aitken, in December 1958 made further innuendoes regarding her “well known mode of life.” He has never made any attempt to maintain the pursuer, nor any genuine offer to set up a home for her."
The pursuer pleaded, inter alia:—"(1) The defender being bound to aliment the pursuer so long as he refuses to receive and entertain the pursuer, the pursuer is entitled to aliment."
The defender pleaded, inter alia:—"(1) The pursuer's averments being irrelevant et separatim being lacking in specification the action should be dismissed."
On 12th October 1960, after a hearing in the Debate Roll, the Lord Ordinary (Guest) sustained the defender's first plea-in-law, and dismissed the action.
At advising on 27th October 1961,—
LORD JUSTICE-CLERK (Thomson).—As a consistorial action, judicial separation a mensa et thoro is older than divorce. It was admitted by the canon law in cases of adultery and cruelty. It authorises the living apart of the spouses, and it regulates their relationship, both in their personal and in their patrimonial relations, on the footing that they are living apart. One of the patrimonial results is that it warrants an award of permanent aliment. It is well established that an award of permanent aliment is competent only if it proceeds on a decree in a proper consistorial action. In cases of cruelty, judicial separation remained the only remedy open to an aggrieved spouse till the passing of the Divorce (Scotland) Act, 1938.1 The aggrieved spouse had to establish that she had met with such treatment as to endanger life or health, or as to lead to reasonable apprehension of danger to life or health. The conclusions in an action of judicial separation on the ground of cruelty ask for a declarator that the defender has been guilty of grossly abusing and maltreating the pursuer, and for a finding that the pursuer has full liberty and freedom to live separate from the defender. In 1938 such cruelty as would warrant a judicial separation was made ground of divorce and, indeed, a decree previously obtained in an action of judicial separation can be used for evidential purposes in a subsequent action of divorce. The result is that a spouse who is cruelly treated has now, as in...
To continue reading
Request your trial
-
Barbour v Barbour
...entitled to aliment does not forfeit her right merely because she has been guilty of adultery. Dictum of Lord Guest in Jack v. Jack, 1962 S. C. 24, at p. 26, commented on and distinguished. Archibald Begg Barbour brought an action of divorce on the ground of adultery against his wife, Mrs A......
-
Beveridge v Beveridge
...the Court could, and must, grant decree for alimentBarrow v. Barrow, (1960) 76 Sh. Ct. Rep. 3. While it was true that in Jack v. JackSC, 1962 S. C. 24, Lord Guest in the Outer House had disapproved the decision inBarrow, it was submitted on behalf of the pursuer thatJack was distinguishable......