McMillan v McMillan
| Jurisdiction | Scotland |
| Judgment Date | 06 October 1961 |
| Docket Number | No. 11. |
| Date | 06 October 1961 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Cameron.
Husband and WifeDivorceDesertionReasonable cause for non-adherenceConduct of husband falling short of matrimonial offenceConduct suggestive of adulterous associations with other womenPossession of contraceptives.
Husband and WifeDivorceDesertionWillingness to adhereOffer by husband to resume cohabitation in house consisting of single roomConditions regarding children of marriageWhether offer such as wife bound to accept.
In an action of divorce for desertion brought by a husband, the wife averred, but failed to prove, that her husband had been guilty of both adultery and cruelty. It was, however, proved that the husband had, over a long period, so conducted himself as to arouse his wife's suspicions of his associations with other women. He frequently received letters from other women, introduced himself to women as a single man, and, while living apart from his wife, formed a close and familiar relationship with his landlady. While the parties were living together, the husband kept a supply of contraceptives in the house, although these were never used between the parties themselves. As a result of the husband's apparent association with other women and, finally, of the finding of the contraceptives, the wife refused to continue to live with him and put him out of the house. Subsequently, the husband offered to resume cohabitation. He was not, however, prepared to return to live in the former matrimonial home, nor to live with certain of the children of the marriage, whom he believed to be hostile to him, and he demanded that his wife should leave her home and come to live in a house consisting of a single room, to which she would have to bring the three or four youngest of the ten children of the marriage. In these circumstances, the wife refused to adhere.
Held that the wife had reasonable cause for refusing to adhere; and decree of divorce refused.
Opinion, per the Lord President, that the husband's offer to adhere was not an offer which the wife was bound to accept.
John M'Millan brought an action of divorce on the ground of desertion against his wife, Mrs Helena Sherrock or M'Millan.
The facts of the case appear sufficiently from the opinion of the Lord Ordinary (Cameron).
On 30th June 1960, after a proof, the Lord Ordinary assoilzied the defender.
At advising on 6th October 1961,
LORD PRESIDENT (Clyde).This is an action of divorce for desertion brought by the husband against the wife. After proof the Lord Ordinary refused decree of divorce and the pursuer has presented a reclaiming motion against his refusal. The parties were married in 1917. They lived together in various places in Ireland and settled later in Glasgow. In 1939 they separated, and in 1941 were reconciled and lived together in Glasgow until 1945, when they separated again. They have not lived together since. The proceedings began in 1958, some twelve years after the separation. There are ten children of the marriage surviving, and some three or four other children have died. In her defences to the action the wife alleged among other things that her husband had been guilty of adultery and cruelty. Neither of these allegations was established by legal evidence at the proof. The establishment of either allegation would, of course, have justified non-adherence by the wife. But the wife also pleaded that the pursuer, by
his conduct, had given the defender reasonable cause for refusing to adhere to him, and it was this plea which the Lord Ordinary sustainedTwo issues arose in the debate before us. In the first place, the question is whether the pursuer has proved that for three years from 1945 to 1948 he was willing to resume cohabitation with the defender and, in the second place, the question is: has the defender proved that during that period she had grounds for non-adherence to him? I shall deal with these two matters in that order.
First of all, let me take the position of the husband. It is clear that to succeed in his...
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