Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1865/01SLR0045_2.html
Cite as: [1865] ScotLR 1_45_2, [1865] SLR 1_45_2

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SCOTTISH_SLR_Court_of_Session

Page: 45↓

Court of Session Inner House Second Division.

1 SLR 45_2

Ballantyne

v.

Wright or Winthrop.

Subject_1Husband and Wife
Subject_2Nullity of Marriage
Subject_3Aliment and Expenses pendente lite.
Facts:

After a Lord Ordinary has pronounced decree of nullity of marriage at the instance of a husband, the defender is not entitled to interim aliment and expenses from the pursuer.

Headnote:

This is an action of declarator of nullity of marriage, entered into in 1856 between the pursuer and defender. The pursuer is the husband; and he alleges that the defender was previously, and in 1840, regularly married to another man, who is still alive. The Lord Ordinary (Barcaple) found the libel proved; and decerned and declared in terms of its conclusions, and the defender reclaimed. The case was in the roll to-day on a motion for the defender that she should be allowed aliment and costs to enable her to prosecute her defence to a conclusion.

Judgment:

Mr W. M. Thomson, who appeared for the defender, admitted that he was unable to quote authority in

Page: 46↓

the law of Scotland in support of the motion, but he relied on two English cases. He further maintained that the marriage between the pursuer and defender being regular, there was a presumption of law in its favour until it was finally set aside.

The Court refused the motion, the Lord Justice-Clerk observing that he would like to hear argument before holding that such a motion was competent, but he had no difficulty in disposing of it in the circumstances of this case. To grant the motion would just be setting the Lord Ordinary's interlocutor at defiance without inquiring into the grounds upon which it proceeded.

Lord Neaves said he could quite conceive the existence of circumstances in which, so long as the woman was in possessorio, she might prefer a claim for aliment, but as the Lord Ordinary had declared the marriage to be null, the case that he had in view did not arise.

Counsel:

Counsel for the Defender— Mr W. M. Thomson. Agent— Mr Crawford, S.S.C.

Counsel for the Pursuer— Mr Strachan. Agent— Mr Ross, S.S.C.
1865

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