Jamieson v Jamieson
| Jurisdiction | Scotland |
| Judgment Date | 09 January 1951 |
| Date | 09 January 1951 |
| Docket Number | No. 29. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Blades.
Husband and WifeDivorceDivorce for cruelty"Cruelty"No physical violenceUse of contraceptivesMental crueltyDivorce (Scotland) Act, 1938 (1 and 2 Geo. VI, cap. 50) sec. 1 (1).
In an action of divorce by a wife against her husband on the ground of cruelty, the pursuer averred that the defender had kept her unreasonably short of money for housekeeping and other purposes; had refused to discuss his income and business affairs with her; had neglected her and refused to take her out or to share his life with her; had spoken insultingly to her, and had treated her in an inconsiderate and humiliating manner. She also averred that at the commencement of their married life the defender had, against her wishes, insisted on using a contraceptive, but this averment was not ultimately founded on. She did not aver that the defender had used physical violence towards her, but did aver that on one occasion he had threatened to throw her downstairs. As a result of the defender's course of conduct towards her, her physical and mental health had, she averred, seriously deteriorated.
Held (diss. Lord Keith, who was of opinion that there must be a proof) that the facts averred did not constitute such cruelty as was required to support an application for divorce; and actiondismissed as irrelevant.
Opinion per the Lord President, having in mind the averments in the present case, that, in an action based on the type of cruelty conveniently known as "mental cruelty," to constitute such cruelty a defender must either have intended to hurt the pursuer or have been unwarrantably indifferent to the result of his conduct, and, further, that, in judging the conduct complained of, the pursuer's capacity of endurance, so far as it was known or ought to have been known to the defender, must, up to a point but only up to a point, be taken into consideration; opinion to a somewhat similar effectper Lord Keith. Opinion per Lord Carmont that a pursuer must be taken as being a person of normal susceptibilities.
Dicta of Lord Brougham in Paterson v. Russell, (1850) 7 Bell's App. 337, at p. 363 and following pages, commented on.
Opinion per Lord Carmont that the insistence on the use of contraceptives might be founded on as cruelty.
Mrs Ethel Foster Brown Cockburn or Jamieson brought an action of divorce against her husband, Edward Malcolm Jamieson, a company director, on the ground of cruelty. The action was defended.
The following is a summary of the pursuer's averments:The parties were married on 20th March 1936, and there were two surviving children of the marriage. The marriage had been quite happy initially, but gradually it became apparent that the defender intended to impose his will on the pursuer. The marriage had not been consummated for about six months, and the defender had at first, against the pursuer's wishes, insisted on using a contraceptive when he had intercourse with her. At the start of the marriage the defender had given the pursuer a housekeeping allowance of 2, 10s. per week, and had never increased it, even after the birth of the two children, for whom she had to provide out of that allowance. As a result she had been unable to buy any new clothes for herself, and the defender had never bought her any clothes apart from a fur coat which he gave her in 1939. The pursuer was forced frequently to ask the defender for extra money to meet necessary expenses, which she had to "steel" herself to do in view of the defender's attitude. On such occasions he always refused the extra money, and in doing so frequently told her that he hated the sight of her and shut the door of his bedroom in her face. He had frequently been rude and threatening to her in the presence of the children and greatly humiliated her. On one occasion in 1949 he threatened, in the presence of the children, to throw her downstairs. The defender had never taken her out or entertained her in any way. He was completely wrapped up in himself and refused to share his life with her or to allow her to share her life with him. He had always refused to disclose the amount of his income to the pursuer or to discuss his business with her, although she had been in business before her marriage. She had been perfectly willing to go out to work if the defender considered his income insufficient. As a result of his refusal to disclose the amount of his income, she had once threatened to ask his fellow directors about it, but he had dared her to do so, and stated that he had told his fellow directors about her. The pursuer admitted that since 1946 she had spent two evenings a week doing Red Cross work, but explained that she did so as a result of the defender's treatment of her, and in order to meet people who, unlike him, treated her with respect and kindness. Since 1943 the parties had occupied separate bedrooms and had had sexual intercourse on only one occasion. As a result of the defender's conduct the pursuer's mental and physical health had been so undermined that she had been under medical treatment since 1944 and was now on the verge of a complete breakdown. In or about 1947 the defender's treatment of her had so preyed on her mind that she had attempted to commit suicide by putting a gas tube in her mouth. The pursuer denied that she had suffered from ill-health before the marriage or that she had been nervous and highly strung. She averred that a continuance of life with the defender would be seriously injurious to her life, health and peace of mind, and that she was afraid to continue to live with him. The defender, she averred, was fully aware of the cruelty he had inflicted on the pursuer, but at no time had he attempted to be considerate towards her or make her life with him happy or even bearable. She made no averment of physical violence.
The defender pleaded, inter alia:"(1) The pursuer's averments being irrelevant et separatim lacking in specification, the action should be dismissed."
On 19th July 1950, after a Procedure Roll discussion, the Lord Ordinary (Blades) found the pursuer's averments irrelevant and dismissed the action.
At advising on 9th January 1951, when in the absence of Lord Carmont his opinion was read by Lord Russell,
LORD PRESIDENT (Cooper).The question is whether the Lord Ordinary was right in dismissing as irrelevant an action of divorce by a wife on the ground of cruelty. The able argument to which we listened requires that I should deal with certain matters on general lines.
First, I desire to express my respectful concurrence with the Second Division in the emphasis which they laid in Dunlop v. DunlopSC5 upon the language of the Divorce (Scotland) Act, 1938,6 in dealing with divorce on the ground of cruelty, and the marked contrast between that language and the phraseology of the parallel English statute. The terminology employed by Parliament is a legislative recognition of the fact that, during the centuries which preceded 1938, Scotland had amassed a great corpus of common law and practice dealing with separation a mensa et thoro, originating in the Officials' Courts in pre-Reformation times, thence transferred to the Commissary Courts in the sixteenth century, and ultimately administered by the Court of Session. That is the law and practice which we are directed to apply, and that is the law which it will be our duty, if need be, to develop and mould as new cases arise for decision.
Before 1938, when the only effect of proved marital cruelty was judicial separation, the requirements of our law were kept extremely strict. In the words of Lord Fraser, who was unconsciously echoing language and sentiments expressed long ago by Lord Stowell, "The grounds of action must be grave and weighty. A family is to be kept together at almost any hazard, save that of positive danger to life and limb. The opportunity for acquiring the virtue of mutual forbearance and charity should be afforded, by denying a too easy grant of a decree of separation."7 Much has happened since these
words were written in 1878, but the same conception was repeated in Lord Wark's edition of Walton on Husband and Wife in 1922, and I am convinced that it still embodies a sentiment more marked in Scotland than in many other parts of the world, and that its significance has been enhanced rather than diminished now that the remedy for proved marital cruelty is not merely separation but the final severance of the marriage bond. Doubtless the general principles of the law of marital cruelty are much the same in Scotland and in England and in most civilised countries. But in dealing with the rights and wrongs of the most intimate of human relationships, involving, as Lord Macmillan has said, "subtle intricacies of feeling and conduct,"1 substantial identity of general principles is perfectly compatible with different conclusions being drawn on the same type of facts because of the different attitude, emphasis and leaning of the Courts of countries with different traditions, outlook and practice. Whether it be that the Scottish character is of tougher fibre or of blunter susceptibilities, or that the Calvinist tradition still finds expression in a deeper sanctity of the marriage tie and its obligations, the fact remains that more than one decree on the ground of "cruelty" has recently been pronounced in England which would not have been granted in Scotland. I conceive it to be the duty of the Scottish Courts to continue to apply...
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