Sharp v Sharp
| Jurisdiction | Scotland |
| Judgment Date | 12 July 1898 |
| Date | 12 July 1898 |
| Docket Number | No. 180. |
| Court | Court of Session |
Lord Pearson, Lord Justice-Clerk, Lord Trayner, Lord Moncreiff, Lord Young.
Husband and WifeTitle to SueSeparation and AlimentCompetency of proving nullity of marriage by way of exception.
In 1897 A, a woman who had in 1875 gone through a regular ceremony of marriage with B, brought an action of separation and aliment against him. B pleaded in defence, inter alia, that he was not the pursuer's husband, in respect that she was the wife of C. It was proved that, in 1868, the pursuer had entered into a regular marriage with C, who was then twenty-six years of age, that C deserted her in 1871, and that she had not heard of him since. There was nothing in the evidence, apart from the lapse of time, to shew that C was dead at the date of the action.
The Court (aff. judgment of Lord Pearson) dismissed the action, holding that the pursuer had not instructed a title to sue, in respect that the presumption was that C was alive, and consequently that the pursuer was not the defender's wifediss. Lord Moncreiff, on the ground that it was incompetent, in a consistorial cause, to sustain the defence of nullity of marriage by way of exception.
In May 1897 Janet Craigie or Sharp, designing herself as the wife of William Sharp, moulder, 11 Berwick Place, Kirkcaldy, brought an action of separation and aliment against William Sharp.
The pursuer averred that she was regularly married to the defender on 14th May 1875, and that after a long course of cruelty and maltreatment on his part she was obliged to leave him in January 1897.
The defender, besides denying the cruelty averred, pleaded that the pursuer was not entitled to decree of separation and aliment, on the ground that the marriage between himself and the pursuer was null, in respect that, at the date of the ceremony, she was married to a man named Scott, and that Scott was, or might be, still alive.
A proof was allowed. The following statement of the result of the evidence is taken from the opinion of the Lord Ordinary:The pursuer was regularly married to Thomas Scott, banksman at a coalpit, on 18th December 1868, their ages at that time being twenty-five and twenty-six. The pursuer admitted this marriage, and an extract marriage certificate was produced. Scott left her in February 1871, and she has not heard of him since. If he is still alive, his age is fifty-five. Apart from the lapse of time, there are no circumstances proved which tend to shew that he is dead.
After waiting four years and three months, the pursuer went through the form of a regular marriage with the defender. On her own shewing, she could have obtained a divorce from Scott on the ground of desertion. What she did was to consult a lawyer (now dead), whose advice to her was, according to her recollection, that there was no obstacle to her taking another husband, but that if Scott
turned up she would need to go back to him. It is difficult to believe that this is an accurate statement of the advice given. But I take it that it expresses the footing on which she lived with the defender.
Whether the defender's bona fides was of a higher order may be doubted. But his own account is, that before the marriage he asked her if her man was dead, and she replied that she had made inquiries, and was at liberty to marry.
In the opinion of the Lord Ordinary the cruelty averred was proved.
On 27th January 1898 the Lord Ordinary (Pearson) pronounced this interlocutor:The Lord Ordinary having considered the cause, dismisses the action: Finds neither party entitled to expenses, and decerns.*
The pursuer reclaimed.
After hearing counsel, the Court, on 3d March 1898, recalled the interlocutor reclaimed against hoc...
To continue reading
Request your trial