Waite v Waite
| Jurisdiction | Scotland |
| Judgment Date | 30 June 1961 |
| Date | 30 June 1961 |
| Docket Number | No. 30. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Walker.
Husband and wifeDivorceCrueltyConduct constituting crueltyDishonest and criminal conduct by husbandConduct not directed against wife or striking at the root of the matrimonial relationship.
A wife brought an action of divorce against her husband on the ground of cruelty. It was found proved that the husband had carried out a course of dishonest and criminal conduct which had injured his wife's health. The dishonest and criminal conduct consisted of contracting debts which could not be met and the commission of fraud.
Held (rev. judgment of Lord Walker) that, as the dishonest and criminal conduct of which the wife complained was not directed against her, and did not strike at the root of the matrimonial relationship, the conduct did not amount to cruelty, and decree of divorce refused.
Mrs Dorothy May Warren Or Waite brought an action of divorce against her husband, Alexander M'Farlane Waite, on the ground of cruelty.
The following statement of the material facts is taken from the opinion of the Lord Ordinary (Walker):"In this action Mrs Dorothy May Waite seeks divorce from her husband, Alexander M'Farlane Waite, on the ground of his cruelty. The parties were married at Fylde, Lancaster, on 26th January 1951. On 26th August 1957 the defender left the home of the marriage and the parties have not cohabited since then. There is one child of the marriage, Malcolm Alexander, who was born on 10th November 1954.
"Prior to the marriage the defender had been an able seaman in the Royal Navy, but in 1941 he had been invalided out of the service on account of arthritis in the shoulder, for which he received a pension of 37s. 1d. per week. For a time thereafter he held the honorary appointment of Lieutenant-Commander in charge of a company of Sea Cadets. When that appointment came to an end, he was employed as companion to a Mr Ford, since deceased. It was about 1944, while driving his employer's car, that he first met the pursuer. She was then employed as a petrol pump attendant at a garage in Colinton Road, Edinubrgh. The defender at that time was a married man, aged about thirty-three years. The pursuer was about eighteen years old. She had been born of unmarried parents and had been adopted by a Mr and Mrs Warren. It appears that the defender informed the pursuer that he was a married man, but that he was obtaining a divorce. About 1946 they commenced to cohabit as man and mistress. At that time, the defender was travelling about the country selling goods on commission, and they led a nomadic life staying in hotels and boarding houses in various places in Scotland and England.
"It is plain from the records of Court that, on 17th July 1948, in an undefended action, the defender's first wife, Violet, obtained a decree of divorce on the ground of desertion, the defender's address being stated as unknown. There is much in his evidence in this case, which, if it could be accepted as true, would suggest that no grounds existed in fact for that divorce. He also says that, prior to that action being raised, he met his first wife in London, where he discussed divorce with her and informed her that if she raised such an action he would not defend it. Notwithstanding those unsatisfactory features relating to his status, I must hold that the pursuer has established that she was validly married to him in 1951.
"At the time of his marriage to the pursuer, the defender was in trouble with the police in Aberdeen. He had been apprehended and released on bail, but according to the pursuer he had given her a false explanation of the trouble. She says he told her that he had sold a camera, apparently with the owner's authority, that the owner wanted the camera back, and that the matter would soon be settled. On 8th March 1951, he pleaded guilty to two charges of obtaining money by false pretences and was sentenced to sixty days' imprisonment. In these proceedings he was described as being a commercial traveller of no fixed abode. While he was in prison, the pursuer obtained employment and lived at 22 East Preston Street, Edinburgh. On his release from prison, he was taken to Blackpool where he was also wanted by the police. However, he persuaded the pursuer to send him what money they had in their joint bank account, and no further proceedings were taken. He then returned to his wife, and they lived together in a room at East Preston Street, Millerfield Place, and East Claremont Street, successively, until she left him for a time in September 1953.
"The pursuer complains that, after their marriage, the defender's attitude towards her changed, but the defender's counsel has criticised that complaint as being incredible when regard is had to their happy pre-marital cohabitation. There would be much force in that criticism had nothing occurred to account for the change except the fact of marriage. But in cross-examination the pursuer says that the change became mostly noticeable when she started trying to get him to go to the Labour Exchange about a job, and that, I think, relates to the period when they lived at East Preston Street after his release from prison. By that time there had been significant changes in their lives. The old wandering life together had come to an end and they had their home in a room in Edinburgh. The pursuer, who had not worked during their pre-marital cohabitation, was in regular employment in a shop in Newington from the time her husband was in prison until shortly before the birth of her child in November 1954. As for the defender, he seems, both before and after the marriage, to have followed the somewhat precarious occupation of travelling about the country, selling goods on commission, but until March 1951 he had never been convicted and sentenced to imprisonment. According to the pursuer, her own attitude was that she thought his conviction might have taught him a lesson, and that it was time he gave up selling goods on commission and settled down to some regular job with a fixed wage and an employer who would see to his insurance card being stamped. She says she repeatedly urged him to apply at the Labour Exchange for such a job, and it was on such occasions that he lost his temper with her and replied rudely, using expressions such as shut your bloody mouth. In these circumstances, I do not see anything inherently improbable about the pursuer's account of her husband's changed attitude.
"The defender's counsel also sought to discredit the pursuer on the ground that in much of her evidence she was making mountains out of molehills and thus showing undue bias against her husband. It is of course true that in cruelty cases, and particularly in cases of mental cruelty, it is necessary to examine the married life as a whole, and it is not always easy to draw the line between those circumstances which are material and those which are not. Nevertheless, the criticism of her evidence has I think some justification. At times her complaints appeared to me to be at once volunteered and trivial. On the other hand, whether or not he was guilty of cruelty, the defender at least let her down badly by his flagrantly dishonest conduct towards the end of their cohabitation. It was therefore not unnatural that she should seek to tell all that she could against him, but I do not think that that led to her recounting incidents for which there was no foundation in fact. I was favourably impressed by her appearance in the witness-box, and I think that she was an honest witness. As for the defender, I regret to have to say that I can place no reliance on his testimony.
"While the parties lived in a room in Edinburgh, the pursuer's main complaints were as follows. He sometimes lost his temper and spoke rudely to her. At other times he belittled her origin, reminding her that she was an illegitimate child who had been adopted. He often boasted about himself, and lied to her and to others in her presence. For example, he said he had been wounded in the shoulder and had had a silver plate inserted, although she knew his shoulder bore no sign of such a wound. He also boasted of having been awarded medals for meritorious services, of having disdained to collect them, and of having, as a commander, associated with admirals. The pursuer says she told him that there was nothing worse to live with than a liar and that she could not stand always being lied to. When she was ill at Millerfield Place, she says that he showed her no sympathy, but told her that she was imagining things. About that time he was travelling for a firm who sold pre-heaters for furnaces in nursery gardens, and for that purpose had the use of a motor car. The pursuer has a general complaint that he went away on his rounds without telling her when he was going or when returning, and, at other times, she says he stayed at home experimenting with a tape recorder and apparently neglecting his work. She says that, apart from paying the rent of the room, he did not contribute to the housekeeping expenses. In September 1953 she learned from the bank that their joint account was overdrawn. She herself had not been drawing on that account and had been led to believe that he was saving money to buy a home. She spoke to her husband about his actings in connexion with the account and finally said You are nothing but a liar and a cheat. Whereupon he replied I will kick your guts in if you speak to me like that. You can get to hell out of it. As a result of this row, the pursuer left her husband and went to live for a time with her parents.
"While the pursuer lived with her parents, the defender called on her at her place of business in an endeavour to persuade her to return to him. Ultimately he produced 200, which was used as a deposit to purchase a house through a building society. Accordingly, in November 1953, they resumed cohabitation at 207 Dalkeith Road. For a time their relationship improved, but when the...
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