Scottish Court of Session Decisions

This is an action of separation and aliment, at the instance of a wife against her husband, on the ground of the defender's adultery and cruelty. The parties have been living apart for the last nine years, the pursuer alleging that in consequence of her husband's ill-treatment of her she was compelled to absent herself from his society. In 1864, shortly after the date of the defender's adultery, an action of divorce was raised by him against his wife on the ground of her desertion of him. This action was reported to the Inner House on an objection to the competency, and does not appear to have since been moved in. Thereafter the present action was instituted by the wife, and a proof was allowed her as to her husband's adultery. This having been led, the Lord Ordinary has now pronounced an interlocutor granting decree of separation and ailment, to which is appended the following note:—

“It is clear on the proof that the defender has been guilty of adultery; but the defender's counsel maintained in argument, that although adultery was a good ground for the fuller remedy of divorce a vinculo, it did not warrant the lesser remedy of separation and aliment. It was, however, at the same time conceded on the part of the defender, that if the defender had committed adultery with a domestic servant or other inmate of the house in which he and the pursuer resided, that would not only have been a sufficient ground for a divorce, but

Page: 225↓

also for a decree of separation and aliment. The distinction thus suggested is not one which recommends itself to the Lord Ordinary; and he is of opinion, on principle as well as authority, that the husband's adultery, whether committed within or without the dwelling-house of the spouses, is an equally good foundation for a decree of separation and aliment at the instance of the wife as for a divorce a vinculo. He can see no reason for holding that the offending husband is to be allowed to dictate to his wife the redress she is to demand, and to maintain that she must divorce him, the very object, it may be, he had in view and was desirous to attain—and so be allowed to derive the benefit of his own misconduct, of not only being made free to marry his paramour, but also to relieve himself from all pecuniary obligation towards his innocent wife. Nor does the Lord Ordinary think that the circumstance of the pursuer in the present case having been living apart from her husband, the defender, at the time he committed adultery is any such speciality as to take the case from within the scope of what he holds to be an established general principle of law, that adultery is a good ground for separation and aliment. The pursuer could not adhere to the defender (her husband) after his adultery had come to her knowledge without forfeiting her right to the remedy not only of separation and aliment but of divorce, and she only asks for aliment for a period subsequent to the adultery; or, to put it differently, the husband's adultery would be an unanswerable defence by her to an action of adherence at his instance; and if so, by parity of reasoning, it appears to the Lord Ordinary to be an equally good ground of action at her instance for a separate aliment.

The Lord Ordinary was referred to the authorities cited by Mr Fraser (Domestic Relations, vol. i., pp. 264–5), they appear to support the views he has expressed.”