Scottish Court of Session Decisions

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Cite as: [1870] ScotLR 7_535_1, [1870] SLR 7_535_1

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SCOTTISH_SLR_Court_of_Session

Page: 535↓

Court of Session Inner House First Division.

Saturday, June 11 1870.

7 SLR 535_1

Brodie

v.

Brodie.

Subject_1Husband and Wife — Divorce — Process — Adultery — Recrimination — Sisting.
Facts:

In an action at the instance of the husband decree of divorce on the ground of adultery was pronounced; and against this, judgment the wife reclaimed. Previous to the decree by the Lord Ordinary being pronounced she brought an action on the same ground against her husband; but the Lord Ordinary sisted the process in it hoc statu because of the reclaiming note against his interlocutor in the first action, but gave leave to the wife to reclaim against this latter interlocutor. Held, the proper course was to have sisted the process furthest advanced, so as to let both actions be considered at the same time.

Observed, it is settled law that recrimination is no bar to divorce; and ( dub. Lord Ardmillan) decree of divorce might be pronounced against both parties.

Headnote:

On 22d October 1869 the pursuer raised an action of divorce against his wife on the ground of adultery; and on 13th January 1870 she raised an action of divorce against him on the ground of acts of adultery, which she said were committed anterior to those that he alleged she had committed. On 5th February the Lord Ordinary ( Ormidale) pronounced decree of divorce in the action at the husband's instance. The wife reclaimed, and the note was boxed to the Court on the 26th February. The record in the action at the wife's instance was closed on the 19th February; and when the wife asked a proof of her averments, the husband replied the action was incompetent in respect of the dissolution of the marriage by the decree of the 5th February. On 25th May the Lord Ordinary pronounced the following interlocutor;—“The Lord Ordinary having heard counsel for the parties, in respect of the dependence of a reclaiming note against the Lord Ordinary's judgment of divorce in the action at the instance of the defender against the pursuer, sists the present process hoc statu; and, on the motion of the pursuer, grants leave to her to reclaim against this interlocutor.

“ Note.—The Lord Ordinary was moved by the pursuer to allow her a proof in the present case, and to proceed as if the marriage in question had not been already dissolved. The Lord Ordinary did not think that this would be a correct course; but he has, in the meantime, sisted the present process, and the pursuer may again move in it in the event of the judgment in the other case being recalled. The Lord Ordinary has also granted leave to the pursuer to reclaim against the present interlocutor, in order that she may, if so advised, have both cases before the Inner-House at the same time.”

Mrs Brodie reclaimed.

Scott for her.

Fraser in answer.

At advising—

Judgment:

Lord President—Sisting is a question for the discretion of the Court. Recrimination is not a good defence for a wife to plead in an action against her. That was first expressly decided by the case of Lockhart in 1799. But that case also decided that she may raise a counter action. I cannot therefore consent to put the wife out of Court as the Lord Ordinary has done. What I think he should have done was to sist the action that was in advance of the other. And as we have the power, I think we should sist the process in the husband's action, so as to have both suits ripe for decision at the same time, and then we shall have it in our power to grant decrees against

Page: 536↓

both parties. It is important that we should follow this course; for the decision may affect status as well as patrimonial interests.

Lord Deas was of the same opinion. It had been quite settled for more than half a century that by the law of Scotland recrimination could not be pleaded in answer to an action of divorce for adultery, whatever the law might be in England. And it had been equally settled, though not for so long a time, that in mutual actions decree might go out against both.

Lord Ardmillan thought the course proposed right, but he reserved his opinion on the point whether both parties could get decree. Divorce was the remedy of an innocent party, and this view was sanctioned by some of the highest consistorial authorities in England.

Lord Kinloch agreed with his Lordship in the chair as to the proper course to be followed. He would not express a contingent opinion on the result. If he did, it would be probably not the same with that last indicated. But it was at present unnecessary to say anything on the point.

Counsel:

Agent for Mr Brodie— Lindsay Mackersy, W.S.

Agent for Mrs Brodie— James Barton, S.S.C.
1870