Scottish Court of Session Decisions

In this case the Court some time ago pronounced decree of separation a mensa et thoro in favour of the wife, on the ground of the husband's cruelty. The case then was brought before the Lord Ordinary on the question of aliment, and his Lordship having found the wife entitled to &100, a reclaiming note was boxed against the Lord Ordinary's interlocutor, and the Court modified the award of the aliment. The pursuer of the action (wife) then make a motion before the Lord Ordinary (Jekviswoode) praying for an order to regulate the custody of two of the pupil children of the family. The Lord Ordinary appointed the children to be under the custody of the mother. The defender reclaimed.

Pattison and Crichton for her.

Clark and Black in answer.

The Court held that the Lord Ordinary had no power, either under the Conjugal Rights Act or at common law, to entertain this motion after final decree had been pronounced in the action, and accordingly recalled the Lord Ordinary's judgment. Lord Benholme was absent, but his dissent, on the ground of the expediency of recognising the power of the Court to deal with such a matter, was intimated by the Lord Justice-Clerk.

In answer to a question by Mr Clark, it was stated by the Lord Justice-Clerk that it was not contemplated that in such an action, or in an action of divorce, there should be conditions applicable to the custody of children.