McKenzie v McKenzie
| Jurisdiction | Scotland |
| Judgment Date | 29 June 1960 |
| Date | 29 June 1960 |
| Docket Number | No. 38. |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Walker.
Husband and WifeDivorce for crueltyAction defended by curator ad litem on ground of defender's insanityRelevancy of defenceM'Naghten rules.
A wife brought an action of divorce against her husband on the ground of his cruelty. The defender was an inmate of a mental hospital and the action was defended by a curator ad litem appointed on his behalf. It was averred on behalf of the defender that he was insane at the time of the acts complained of, and that accordingly, even if these acts were proved against him, he could not be guilty of cruelty. The case went to proof before answer.
Held by the Lord Ordinary (Walker) that the insanity of the defender was not a relevant defence to an action of divorce for cruelty, and that cruelty had in fact been proved.
Observed that, whatever the position in the past, theM'Naghten rules were not now part of the law of Scotland.
Mrs Williamina Sinclair Or M'Kenzie brought an action of Lord Walker, divorce against John Wilson M'Kenzie, her husband, on the ground of his cruelty towards her. The defender was an inmate of the State Mental Hospital, Carstairs, under a Sheriff Court order in terms of section 23 (2) (a) of the Criminal Justice (Scotland) Act, 1949, finding him to be of unsound mind and ordering his detention there. A curator ad litem to the defender was appointed by the Court. The curator defended the action.
The circumstances are summarised in the rubric and are fully set forth in the opinion of the Lord Ordinary.
The pursuer pleaded:"(1) The defender having been guilty of cruelty towards the pursuer as condescended...
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Breen v Breen
...rules are not part of the law of Scotland. M'Lachlan v. M'Lachlan, 1945 8. C. 382,explained and commented upon. M'Kenzie v. M'Kenzie, 1960 S. C. 322,disapproved. Mrs Janet M'Murray Or Breen brought an action of divorce against her husband, Martin Breen. A curator ad litem appointed to the d......
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Williams v Williams
...Lord Moncrieff's view prevailed, and this case was followed in Dobbie v. Dobbie, 1953 S.C. 379, 1955 S.C. 371. In M'Kenzie v. M'Kenzie 1960 S.C. 322, Lord Walker held that insanity was no defence, but in Breen v. Breen, 1961 S.C. 158, the Second Division held that insanity was a defence. Th......