Scottish Court of Session Decisions

The general rule of law relative to the effect of the dissolution of a marriage by divorce for adultery on the patrimonial rights of parties, where one of the spouses only is guilty appears to be clearly fixed, viz., that the innocent party has the just benefit of all legal and conventional provisions, just as if the offenders were naturally dead, while the guilty party forfeits all benefit accruing through the marriage. The law is so laid down in Stair, i, 4, 20; Bankn. i, 5, 134; and in Erskine, i, 6, 46, and 48, and has been authoritatively recognised in disposing of the case of Thom, 11th June 1852, and the more recent case of Johnston, 5th February 1867. But while these institutional writers are thus explicit as to the effect of divorce upon the respective rights of an offending and of an innocent spouse, they are silent as to its effect where the guilt of the parties is mutual, probably because at the time when they wrote recrimination was understood to operate as an absolute bar to divorce. And the opinion of Professor Bell that recrimination or mutual guilt may entitle ‘the party first injured to have divorce preferably to the other, with all the benefits thence accruing,’ does not seem to be borne out by the case of Cunningham Fairlie, 3d July 1815 ( 6 Pat. Appeals, p. 117), to which he refers.

Mr Ferguson, again, in his work on Consistorial Law, although he gives no decided opinion on the point, speaks (p. 194) of the ‘defence which arises from mutual guilt and injury against the forfeiture of the patrimonial rights of a pecuniary description which would accrue to the survivor from dissolution of the marriage by natural death of the spouse, or to the successful party in an ordinary action of divorce for adultery,’ thus evidently implying that in such a case the forfeiture of pecuniary rights would probably not be held to take place in the same way as in the case where one party only was guilty. And, in dealing with this subject, Mr Fraser (vol. i, p. 673) indicates the opinion that in such a case ‘neither party can claim any right or interest in the estate of the other that would have been competent to him or her had decree been obtained on one side only.’ The Lord Ordinary, in the absence of all express authority on the subject, is disposed to think that the solution of the question raised in the present case may be found in the application of the principle here pointed out by Mr Fraser.

In considering this question, it appears to the Lord Ordinary to be important to keep distinctly in view the manner in which the ordinary rule of law would operate where one party only is guilty. In that case the offending wife, if there had been a contract of marriage, would, as the Lord Ordinary conceives, have forfeited the tocher and conventional provisions, and her share of the goods in communion; and had she been possessed of heritable estate, the husband would have been entitled to his courtesy as if the wife had been naturally dead; Innerwick, March 1589, D. 329. If, on the other hand, the wife had been the injured party, she would have had right to her conventional provisions, to her terce, and to her share of the goods in communion at the date of the divorce; and the husband, on the other hand, would have forfeited all right of courtesy, or, in other words, would have been deprived of the administration which, in respect of his jus mariti, he had had during the marriage of the rents of the heritable estate of the wife.

Under the operation of this rule, then, there would thus be a forfeiture on the part of an offending wife, in favour of an injured husband, of all benefit provided to her by the marriage-contract, and also of her share of the goods in communion, and of her right to the rents of her own heritable property; and the justice of so applying the rule seems clear when it is borne in mind that, but for the dissolution of the marriage through the guilty conduct of the wife, the husband would have been entitled to continue, during the subsistence of the marriage, his uncontrolled administration both of the whole goods in communion and of the rents and profits of the heritable property of the wife. But when the husband is also an offending party, there seems no good reason why this rule should be applied to the extent of allowing him either to continue the administration of the wife's share of the goods in communion, or to draw the rents of her heritable property, any more than there would be for allowing her to claim terce out of his heritable estate; and the fair rule, in such circumstances, appears to the Lord Ordinary to be that neither party should be allowed to claim any right or interest in the estate of the other.

The propriety of applying this rule with reference to any heritable property which may belong to the spouses does not, in the opinion of the Lord Ordinary, admit of question. Each spouse ought, he thinks, in that case to be allowed to take full and complete possession of her or his respective properties. But its application relative to the goods in communion is attended with more difficulty. Because, although they are property in which the spouses have a common interest, and the wife takes absolute possession of the half when a marriage is dissolved, the right of administration during the marriage, which belongs to the husband alone, is of so exclusive a nature as to be almost equivalent to a right of property in him, inasmuch as the whole goods may be expended and disposed of by him, or attached by his creditors for debt. A husband's right of administration, however, is in this respect not more absolute than it is in regard to the rents of the wife's heritable estate, which belong exclusively to the husband during the marriage, and his right to which may be attached by his creditors by adjudication. And as this right so to deal with each depends solely upon the jus mariti which comes to an end by the dissolution of the marriage, it appears to the Lord Ordinary that there is no sufficient ground for holding that the husband should be allowed to retain the wife's share of the goods in communion any more than he would have been to retain the rents of her heritable estate in a case where, as here, the marriage has been dissolved in consequence of the guilty conduct of both.

Such is the view which the Lord Ordinary thinks must have been taken of the case had the question been raised immediately after the date of the divorce; and he does not see, nor did he understand it to be pleaded, that there was room for the application of any different rule now that the husband is dead. The plea in law founded on the discharge granted by the pursuer when the appeal to the House of Lords was withdrawn, was

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