Scottish Court of Session Decisions

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Cite as: [1882] SLR 19_497, [1882] ScotLR 19_497

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SCOTTISH_SLR_Court_of_Session

Page: 497↓

Court of Session.

Wednesday, March 15. 1882.

[ Lord Fraser, Ordinary.

19 SLR 497

Stevens

v.

Stevens.

Subject_1Husband and Wife
Subject_2Separation
Subject_3Res judicata.
Facts:

Cruelty or ill-usage proved by a wife against her husband, and held by the Court sufficient to justify non-adherence on her part, and to afford a satisfactory defence to an action of divorce for desertion at his instance, cannot be pleaded as res judicata in her favour in a subsequent action of separation and aliment against him, to the effect of excluding the necessity for proof in that action.

Headnote:

This was an action of separation and aliment by Mrs Catherine Duncan or Stevens against her husband William Stevens, contractor, West Calder. The pursuer alleged a prolonged course of cruelty and ill-treatment, including acts of personal violence and threats against life during fourteen years at various places in Lanarkshire and Midlothian, in consequence of which she was compelled through bodily fear to leave his house in May 1873, and had never returned to it. The pursuer had thereafter supported herself under an assumed name for several years, in the course of which she had repeatedly, through third parties, applied to her husband to send her clothes and aliment, but received neither. In the end of 1880 her husband raised against her an action of divorce for desertion ( ante, vol. xviii. p. 601). She defended the action, and led proof of her husband's cruelty, in respect of which she was assoilzied by the Second Division of the Court, on the ground that the ill-usage proved by her was sufficient to justify her in leaving her husband's house and not returning to it, without thereby being in that wilful and malicious desertion which would warrant divorce. The summons in the present action contained a conclusion for aliment. The defender denied the allegations of cruelty and ill-treatment, and averred that the pursuer had left his house without cause, offered to receive her back, and pleaded accordingly.

The pursuer pleaded, inter alia—“The defender's cruelty is res judicata under the action of divorce, and there being no new averments by him further proof is excluded.”

Judgment:

The Lord Ordinary (Fraser) repelled this plea and allowed a proof, adding this note:—“The third plea-in-law for the pursuer is in the following terms:—‘The defender's cruelty is res judicata under the action of divorce, and there being no new averments by him further proof is excluded.’ The action of divorce here referred to was one at the instance of the defender in the present action against his wife, the pursuer, wherein divorce on the ground of desertion was craved. Against this action the wife lodged defences to the effect that she was justified in not adhering to her husband by reason of his cruelty to her. The Court sustained the relevancy of this defence, and found it to be proved in fact; and the question now comes to be, whether the cruelty or ill-usage which the Court held in that action of divorce to have been proved, must be taken as res judicata in the present action of separation and aliment, in which the wife is pursuer and not defender?

“The Lord Ordinary is of opinion that it cannot be so held. The result of the first action was to find that the wife was not obliged to comply with the husband's demand to adhere to him, and thus, although not formally, at all events practically, there was separation between the spouses which the husband could not at his will disturb. If he had pleaded that the dispute between them as regards separation was thus res judicata, and that in consequence the present action was incompetent, the husband would have had a precedent for such a plea in the case of Geils

Page: 498↓

v. Geils, 1 Macq. 255. But in accordance with the decision in that case his plea would have been overruled. It is the pursuer in the present action who pleads res judicata, with the view of avoiding an order for proof in support of her averments in the present action of cruelty by her husband. She wishes to import into the present case, not the proof that was led in the action of divorce, but the judgment of the Court assoilzieing her from the conclusions of that action. This, however, she cannot be permitted to do. It may be an important fact for her to prove in this action of separation that she defeated her husband's demand for divorce on the ground of desertion, but that will not free her from the necessity of establishing substantively her right to demand judicial separation, which requires proof of personal violence or threats of personal violence, while a proof of lesser ill-usage would justify a defence against an action of adherence or divorce for desertion. The two actions have totally different effects. If the pursuer obtained decree of judicial separation, the jus mariti and right of administration of her husband would be excluded, and her domicile would no longer follow that of her husband, as is expressly provided by the Conjugal Rights Act. At present, though she successfully resisted the action of divorce, the jus mariti and right of administration are effectual, and the wife's domicile is that of her husband. The point to be determined in the present action was not determined by the judgment in the divorce action, and the husband is now entitled, when he is put upon the defensive, to vindicate himself by adducing other and additional evidence—if he possess it—than what he was able to produce in the action of divorce.”

The pursuer reclaimed.

The Lords, without calling on the defender's counsel, and without delivering opinions, unanimously adhered and found no expenses due.

Counsel:

Counsel for Pursuer (Reclaimer)— Nevay. Agent— James Barton, S.S.C.

Counsel for Defender (Respondent)— Rhind. Agent— William Officer, S.S.C.
1882