Richardson v Richardson
| Jurisdiction | Scotland |
| Judgment Date | 23 March 1956 |
| Date | 23 March 1956 |
| Docket Number | No. 39. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Justice-Clerk. Lord Patrick. Lord Mackintosh. Lord Blades.
Husband and WifeDivorceDesertionIntroduction by husband of woman business associate into parties' social lifeNo allegation of improprietyWhether wife justified in refusing to adhereWhether conduct not amounting to matrimonial offence sufficient to justify non-adherence.
In an action of divorce brought by a husband against his wife on the ground of her desertion the defender contended that she was justified in refusing to adhere, on account of her husband's association with a woman named F. The parties were married in 1945 and lived together till August 1950. The pursuer was managing director of a private company of which F. was the secretary and also a director. The defender deponed that the marriage was happy until August 1949, when F. invited the pursuer and herself to spend the day with her at Prestwick, where she was then on holiday; that after that visit their relationship began to be strained; that in the ensuing year F. accompanied the pursuer and herself on a number of short holidays, outings and social occasions; that on one occasion F. and the pursuer went together on an omnibus trip, on which she was invited, but refused, to go; and that on another occasion F. drove the pursuer in her car from the parties' home in Hamilton to Glasgow, where he had to see a heart specialist, after having a heart attack. The defender did not suggest, nor was there any evidence, that the pursuer and F. were sexually attracted to each other or that there was any impropriety in their relationship, her case being that the pursuer obtruded F., whom she did not like, into their social life, in the face of her protests, and that as a result of this her nervous health deteriorated until she was forced to leave him. It was established that just after the parties separated the defender was on the verge of a nervous breakdown.
Held (rev. judgment of Lord Cameron) that the defender had failed to establish that she had reasonable ground for refusing to adhere; and decree of divorce granted.
Opinions by the Lord Justice-Clerk and Lord Patrick that it is no longer the law of Scotland that nothing short of proved adultery, cruelty or sodomy will justify non-adherence, but that, in order to do so, the conduct complained of must be grave and weighty, and such that it would shock the conscience of reasonable persons to ordain the offended spouse to adhere to the offender.
Hastings v. HastingsUNK, 1941 S. L. T. 323,Hamilton v. Hamilton, 1953 S. C. 383, andThomas v. Thomas, 1947 S.C. (H.L.) 45, [19471 A.C. 484, commented on.
William Thomas Richardson brought an action of divorce against his wife, Mrs Jean Duff or Colquhoun or Richardson on the ground of desertion.1 The action was defended. The
following narrative of the facts (so far as not in dispute2) and of the parties' averments is taken from the opinion of the Lord Ordinary (Cameron):"The parties to this action of divorce for desertion were married at Luss on 27th April 1945. Both spouses were of mature years, both had been previously married and both had children by their first marriages. The parties lived together first at Gartcosh, and thereafter at Hamilton, where they were living when they parted on 31st August 1950. On that date the wife left the matrimonial home in Hamilton, taking with her certain of her personal belongings and without giving her husband any warning or intimation of her intention to do so. On leaving her home the defender went to live with a married daughter at Kirkintilloch. A brief correspondence between the parties' solicitors followed this event, the first letter from the defender's solicitors being dated 1st September 1950, but no reconciliation or resumption of married life arose out of the correspondence. In March 1951 the wife instituted an action of separation and aliment in the Sheriff Court at Hamilton on allegations of cruelty. In his defences to the action the husband averred upon record his willingness to resume married life with the present defender. The action was dismissed as irrelevant by the Sheriff-substitute on 1st August 1951, and his decision was affirmed by the Sheriff on 31st January 1952. Thereafter no communication apparently passed between the parties, nor was any initiative taken by either until the pursuer raised the present proceedings seeking divorce on the ground of desertion on 10th December 1953"In his pleadings the pursuer avers in condescendence 2 that the marriage was happy at first, but that the relations between the parties began to deteriorate about October 1949. He also averred that the defender adopted a wholly unreasonable attitude towards the pursuer's relations with a Miss Forsyth, who had been for over twenty years in the service of the company of which the pursuer was and is managing director. This Miss Forsyth was formerly secretary and since December 1949 has been both secretary and director of this company. The substantial defences tabled by the wife allege that she had reasonable cause for non-adherence to the pursuer and that in any event the pursuer was not willing during the triennium that his wife should return to him. In support of her defence that she was not guilty of wilful desertion without reasonable cause the defender made specific and detailed averments of a series of incidents between August 1949 and July 1950, in which she alleged she was subjected to humiliation by being compelled to accompany her husband and Miss Forsyth in various social activities and on certain holiday occasions. She maintained that the pursuer in insisting that Miss Forsyth should form a third with herself and the pursuer at the various entertainments and outings condescended on was aware
that he was causing her great grief and humiliation, and that his conduct was having an adverse effect upon her health. She also made averments that during the period from October 1949 to August 1950 the pursuer was drinking to excess, and was on several occasions so intoxicated that he had to be assisted to bed by the defender. She further averred that in August 1950 she had been warned by her doctor that she was in danger of having a nervous breakdown, and that she was advised to leave the pursuer for the sake of her health"At the proof certain matters were not in dispute. It was common ground that the earlier years of the marriage at least until the summer of 1949 were happy. During that period there was no evidence that Miss Forsyth was playing any substantial part in the social life of the pursuer and defender. It was also, not in dispute that in July 1950, when the parties were spending a holiday at the Hydropathic Hotel, Pitlochry, the defender, without informing her husband of her intention, left him after an episode in which he admitted he had taken too much to drink and returned to the matrimonial home at Hamilton, whither she was followed within a couple of days by the pursuer. It is further common ground that after several weeks of an unhappy and strained existence together, during which the parties were scarcely on speaking terms, the defender on 31st August, after consultation with her solicitor, packed up her belongings and, again without prior intimation, left her home and did not return, leaving behind the keys of the house accompanied by a brief' and cryptic note. It was also common ground that when the pursuer arrived back from Pitlochry to find his wife in the house, he neither sought nor was given any explanation of her unprecedented action in leaving him as she did in Pitlochry and that at this point the question of a separation to be legally adjusted was raised by the defender. These are the admitted circumstances in which this marriage broke up and out of which arises, the pursuer's claim that the defender wilfully deserted him without, reasonable cause."
On 22nd July 1955, after a proof, the Lord Ordinary (Cameron) assoilzied the defender.
At advising on 23rd March 1956,
LORD JUSTICE-CLERK (Thomson).The pursuer's wife left him in August 1950. In December 1953 he raised this action of divorce on the ground of desertion. Under the statute23 he must establish that her remaining apart was wilful and without reasonable cause. Where a defender is in a position to establish that she has grounds which would have entitled her to succeed in an action of separation or divorce, the remaining apart on her side can no longer be said to be wilful and without reasonable cause, as the pursuer's conduct has struck at the root of the marriage. So, if it turns out that the pursuer has been guilty of adultery or crueltyand to these two grounds sodomy must now be addedhe has not established that her remaining apart was wilful and without reasonable cause.
In the present case the wife put forward to the Lord Ordinary two grounds of defence, both of which were also maintained before us. The first was that the pursuer has not been willing to adhere during thetriennium. This was rejected by the Lord Ordinary and, in my opinion, rightly so. The second ground was that the pursuer had been guilty of "mental cruelty" in the sense of Jamieson v. JamiesonSCSC.24 The conclusion reached by the Lord Ordinary is expressed thus:"Whether such conduct as I have found proved in the circumstances might be held to amount tosvitia I am not prepared to affirm, but I have come to be of opinion that the cause shown by the defender in the matter of Miss Forsyth's association with the pursuer is sufficiently grave and weighty to justify the contention of her counsel that the pursuer has failed to prove that the defender was in wilful desertion without reasonable cause." I can read that conclusion only as one which negatives cruelty. It was argued that this was not so and that the Lord Ordinary, having found a sufficient ground of judgment, had not required to make his mind up on the major issue. I cannot accept this. It is...
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