Tullis v Tullis
| Jurisdiction | Scotland |
| Judgment Date | 25 March 1953 |
| Date | 25 March 1953 |
| Docket Number | No. 40. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Birnam.
Husband and WifeDivorceDivorce for cruelty"Cruelty"No physical violenceMental crueltyIntention to injureDivorce (Scotland) Act, 1938 (1 and 2 Geo. VI, cap. 50), sec. 1 (1) (c).
In an action of divorce by a husband against his wife on the ground of cruelty it was proved that throughout the married life of the parties, which lasted eleven years, the defender frequently created scenes in private and in public without good cause; that she constantly nagged at the pursuer and picked quarrels with him; that she continued her recriminations into the early hours of the morning, depriving the pursuer, whose work required him to rise early, of his sleep; that she frequently threatened to commit suicide and, having made the threat, left the house at all hours and for long periods; that on several occasions she packed her belongings and went home to her parents without reasonable cause, and sometimes started to pack in the middle of the night to the great disturbance of the pursuer; and that owing to the defender's conduct, of the effects of which she was aware, the pursuer's physical health deteriorated and he came to suffer from an anxiety state, as a result of which he became impotent.
Held (rev. judgment of Lord Birnam) that the defender's conduct constituted cruelty entitling the pursuer to decree of divorce.
Opinions by Lord Mackay and Lord Patrick that in an action of divorce based on mental cruelty it is not necessary to prove an intention to injure on the part of the defender. Opinions reserved on this question by the Lord Justice-Clerk and Lord Mackintosh.
EvidenceSufficiencyCorroborationHusband and WifeDivorce for crueltyNecessity of considering whole circumstancesPattern of parties' married lifeValue of denials and qualified admissions of defender.
Observations, with reference to Walker v. Walker, supra, p. 297, on the necessity, in an action of divorce for cruelty where a continuous course of conduct is founded on, of considering the evidence as a whole; and on the corroborative value of denials and qualified admissions of a defender who is recognised to be lying or prevaricating.
Per the Lord Justice-Clerk:"In consistorial cases the conduct of the parties usually follows a discernible pattern and one usually finds that if one of them reacts in a certain way to a given stimulus on one occasion, the probability is that a similar reaction will take place on other occasions. This pattern or coherence which tends to run through the conduct of spouses, particularly in their mutual relations, is an evidential factor of importance."
William Tullis brought an action of divorce against his wife, Mrs Hilda May Cooper or Tullis, on the ground of cruelty. The action was defended.
The following summary of the pursuer's averments (which the Court held to be proved) is taken from the opinion of Lord Patrick:"The pursuer and the defender were married on 5th September 1938. The pursuer is a baker and confectioner, as was his father. At the time of the marriage he was an employee of his father, earning 5 a week. He became a partner with his father in 1939. His father, died in May 1949, and he then became sole owner of the business. The business was situated, and the parties took up house, in the village of Kennoway in Fife, which had then about 1200 inhabitants. The defender came from Helmsley in Yorkshire, where her father at one time kept the Crown Hotel. The parties lived in a bungalow called Hilcrest from 1938 till May 1949. It was suitable for such a couple, as the defender now admits. In May 1949 they moved to Miller-field, which had been the pursuer's father's home, and which was adjacent to the business. Their only child, Sandra, was born in 1943. The parties finally separated on 13th October 1949, the pursuer having told the defender that she must go.
"The pursuer complains of the defender's conduct over a period of eleven years; that she has an ungovernable temper and persistently created scenes in public and private; that she persistently picked quarrels with him and nagged at him; that she continued her recriminations into the early hours of the morning, depriving him, who had to be up by five in the morning, of essential sleep; that she ventilated her unfounded grievances in public and private; that she frequently threatened to commit suicide, and, having made the threat, disappeared into the night and stayed away for long periods, to his distress; that at times she left him without just cause; and that the result of the impact of this course of conduct on him was that his health was gradually undermined, so that he became depressed, nervous and sleepless and developed an anxiety state, whereby he became impotent at the age of thirty-five and so remained until they separated about a year later."
The defender pleaded, inter alia:"(3) The defender not having been guilty of cruelty towards the pursuer, she should be assoilzied."
On 19th July 1951, after a proof, the Lord Ordinary (Birnam) assoilzied the defender.
At advising on 25th March 1953,
LORD JUSTICE-CLERK (Thomson).The pursuer in this case is a man in the late thirties, born and brought up in the village of Kennoway, where his father had a bakery business to which he succeeded. When on holiday in the Isle of Man he met the defender, who was the daughter of the keeper of a small hotel in the small town of Helmsley in Yorkshire. Mutual attraction led to engagement, and the parties were married in September 1938. There is one child, a girl Sandra, who was born in 1943. The parties separated in October 1949. In the beginning of 1950 the pursuer raised this action against his wife for decree of divorce for cruelty. The Lord Ordinary having refused to grant decree, this reclaiming motion has been taken.
The grounds on which the action proceeds are set out on the closed record. It is averred that from the outset the marriage was unhappy and that solely by reason of the conduct of the wife. It is averred that she is a woman of apparently ungovernable temper and that throughout her married life she continually and persistently created scenes both in public and in private for no reason. It is averred that the defender continually expressed her dislike of Scotland and that she indulged in frequent and unfounded complaints on various matters which she made both in public and in private. She picked quarrels with the pursuer and nagged at him. She formed the habit of continuing her recriminations into the early hours of the morning and so depriving the pursuer of rest and sleep, although she knew that his business as a baker demanded that he should be at work at an early hour. It is averred also that she frequently proclaimed her intention of committing suicide and under such threat would disappear from the house at all hours and for long periods. The record goes on to give some specific instances of such occurrences. The pursuer then goes on to say that this persistent course of conduct, carried on as it was throughout the whole of their married life, affected his health, so that he can no longer live with her in safety to himself.
The Lord Ordinary refused decree mainly on the ground, as I understand him, that at most the proof disclosed that the defender was of a highly strung and neurotic disposition, liable to what he calls tantrums and tirrivees. Such intermittent ebullitions, while no doubt causing distress and even alarm to the pursuer, he refused to regard as sufficiently
serious to amount to cruelty in the legal sense. His attitude appears to be that it is one of the normal hazards of marriage that the wife may be of such a disposition, and he is apparently of the view that, even if injury to health results, divorce cannot be grantedTaking, as he did, an overhead view of the case, the Lord Ordinary has not favoured us with a detailed examination of the events of the marriage or with any considered judgment of the conduct of the parties. So far as he has entered into the merits, the Lord Ordinary has fastened on certain evidence given by the pursuer, which he takes to mean that the pursuer represented that the marriage was miserable from start to finish. The Lord Ordinary's view is that "it would be more true to say that the parties were on the whole reasonably happy but that there were numerous quarrels which caused temporary unhappiness to them both." He finds what he regards as "convincing evidence to that effect" in "certain letters addressed by the pursuer to the defender in the year 1948." "They," he says, "are just such letters as a reasonably happy husband and father would write." Two observations fall to be made as to this. First, I should have been happier had this matter been considered by the Lord Ordinary in the light of the whole background of the case and in particular in the light of the pursuer's explanationso far as he was asked for explanationof these letters. I am not happy about the way in which the Lord Ordinary has used this one matter in isolation as a touchstone for the decision of so difficult and complicated a case. Secondly, on an examination of the evidence, it will be matter for anxious consideration to what extent the pursuer did represent the marriage as continuously unhappy and whether continuous unhappiness is essential to his case. It does not necessarily follow that the existence of periods of reconciliation is destructive of the pursuer's case. To these topics I shall return later.
Consideration of the present case has convinced meif indeed I needed convincingof the sound common sense underlying the rule that in consistorial cases the greatest respect ought to be paid to the Judge who heard and saw the witnesses. I should have been much happier had I seen and heard the protagonists. But I am equally convinced that this is a case where I must make up my own mind as best I can on the written evidence. I do not think that I can safely accept that the...
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