Macfarlane v Macfarlane
| Jurisdiction | Scotland |
| Judgment Date | 21 June 1956 |
| Docket Number | No. 45. |
| Date | 21 June 1956 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Mackintosh.
EvidenceSufficiencyHusband and WifeDivorceAdulteryDefended actionDefender admitting adultery but pleading mora and acquiescenceNo evidence of adultery except pursuer's testimony and defender's admission on recordCourt of Session Act, 1830 (11 Geo. IV and 1 Will. IV, cap. 69), sec. 36.
The Court of Session Act, 1830, by sec. 36, enacts, inter alia,that in certain consistorial actions, including all actions of divorce, "no decree or judgment in favour of the pursuer shall be pronounceduntil the grounds of action shall be substantiated by sufficient evidence."
There is no exception to the rule that in actions of divorce the evidence and admissions of the parties will not, without some independent corroboration, constitute evidence sufficient to substantiate the grounds of action.
So held in a defended action of divorce by a husband against his wife on the ground of her adultery, in which the wife in her defences admitted the adultery but pleaded mora and acquiescence, and in which the husband contended that, in circumstances where there was no risk of collusion, his own testimony regarding the adultery was sufficiently corroborated by his wife's admission on record.
Muirhead v. MuirheadUNK, (1846) 8 D. 786, commented on.
Personal BarHusband and WifeDivorce for adulteryPlea of mora and acquiescence.
Opinion, per the Lord Ordinary (Mackintosh), that moraand acquiescence, although falling short of condonation in the technical legal sense, might bar a pursuer from the remedy of divorce on the ground of adultery.
Alexander Nairne Macfarlane brought an action of divorce against his wife, Mrs Eileen Henrietta Hall or Macfarlane, on the ground of her adultery.
The defender lodged defences in which she admitted the adultery and stated as her only plea in law:"The pursuer being barred bymora and acquiescence from insisting in the present action, it should be dismissed."
The circumstances are fully stated by the Lord Ordinary (Mackintosh) in the first two paragraphs of his opinion.
On 21st July 1955 the Lord Ordinary dismissed the action on the ground that the adultery had not been established by sufficient evidence.
LORD PRESIDENT (Clyde).This is an action of divorce brought by a husband against his wife on the ground of adultery. The only defence pled by the wife is mora, acquiescence and taciturnity. She, in her defence, admits the adultery complained of. A proof took place before Lord Mackintosh, who held that the evidence was insufficient to establish the adultery alleged and who dismissed the action. In the course of his opinion he considered the defender's plea to mora, acquiescence and taciturnity, and held that it was not made out on the facts. Against his interlocutor dismissing the action the pursuer has reclaimed.
The circumstances of this case are undoubtedly unusual, if not quite unprecedented. The parties were married on 2nd March 1936. The pursuer's motive for the marriage appears to have been to enable him in some way more effectively to defend a petition then pending in the
Court of Session for the appointment to him of a curator bonis.At the time he appears to have been under the influence of a Mr Jones, who had persuaded him to marry the defender and had apparently convinced him that by so doing he could more effectively oppose the granting of the prayer of this petition. He met his wife at the church immediately before the ceremony for the first time. He went through the ceremony and parted from her immediately after it had taken place. They never lived together and have not lived together since the marriage ceremony was performed. The defender, the wife, gave birth to one child a week after the marriage and to a second child on 19th August 1937. The adultery, in respect of which the present action is raised, is adultery alleged to have taken place with Mr Jones or someone else unknown in about November 1936, as a result of which this second child was born. The peculiarities of the case, however, do not end there. It appears that the pursuer learned of the birth of this child and, as a result, in 1937 brought...To continue reading
Request your trial
-
S.h. V. K.h.
...McLeod v Adam 1920 1 SLT 229; MacDougall v Chitnavis 1937 SC 390; Orlandi; Courtin 1930 SC 70; Brady v Murray; Mahmoud; Akram; Macfarlane 1956 SC 472; and Clive. The Lord Ordinary had correctly applied Clive's views. In the modern world, conjugal society was what the parties chose to make o......
-
SH v KH
...1930 SC 68; 1929 SLT 676 Hyde v HydeELR (1866) LR 1 P & D 130 MacDougall v ChitnavisSC 1937 SC 390; 1937 SLT 421 Macfarlane v MacfarlaneSC 1956 SC 472; 1956 SLT 333 McLeod v Adams 1920 1 SLT 229 Mahmud v Mahmud 1977 SLT (Notes) 17 Orlandi v CastelliSC 1961 SC 113; 1961 SLT 118; 1960 SLT (No......