Scottish Court of Session Decisions

The pursuer in this case, Alexander Glen Collins, was married to the defender in Glasgow in June 1872, and the parties thereafter cohabited there as man and wife. In February 1882 the present action of divorce on the ground of adultery was raised by the husband against his wife, and against the co-defender Eayres, a fiddler, for damages. The pursuer alleged that in July 1881 he, for the first time, became aware of a guilty intimacy between his wife and the co-defender, and libelled several specific acts of adultery in that year; averring also that his wife had admitted to him her misconduct, but that he had, however, for the sake of his children, of whom there were four born of the marriage, condoned his wife's misconduct on the express condition, undertaken by her at the time, that she should never again speak or write to the co-defender. He further averred that in the months of December 1881 and January 1882 the defender had renewed her intimacy with the co-defender, who had then come from London, where he usually resided, to fulfil a musical engagement in Glasgow; that they had been in the habit of meeting and walking together alone; that on or about the 26th of January they had committed a specific act of adultery; and that he had in consequence since withdrawn from his wife's society.

The defender denied adultery, and averred that the pursuer, in belief of the prior intimacy alleged by him in May and June, and in knowledge of the meetings with the co-defender in December and January, which she admitted, had continued his cohabitation up to the 2d of February. The co-defender also denied adultery, but admitted having on one or two occasions met and spoken to the defender.

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The defender and co-defender pleaded that the acts of adultery libelled as prior to the condonation could not be admitted to probation.

The Lord Ordinary repelled the plea and allowed proof, adding the following opinion:—“The defender maintained that no proof ought to be allowed of acts of adultery prior to the condonation, which the pursuer himself states that he had made in favour of the defender, as set forth in his condescendence. If it had not been for the qualified terms in which the condonation was given, the Lord Ordinary would have sustained this plea. He is of opinion that the law of Scotland, following in this respect the canon law, absolutely wipes out any guilt prior to condonation, and it cannot be brought up again to the prejudice of the pardoned spouse for any purpose whatever— Lockhart v. Lockhart, Morison, App. v., Adultery, No. 1—‘that reconciliation is a complete objection on both sides to proof of prior guilt then known to the parties.’ The exact point decided in the case was, that condoned adultery could not be revived with the view of making it a substantive charge entitling to divorce, and this is the length to which Erskine carries the effect of remissio injuriæ. He says—‘Cohabitation by the injured party, after being in the knowledge of acts of adultery committed by the other spouse, if it has not been constrained by force or menaces, imports a passing from or forgiveness of the prior injury, and is therefore sufficient to elide any action of divorce that may afterwards be pursued upon those injurious acts’ (i. 6, 45).

“The pursuer, however, says that he does not mean to found upon the condoned adultery as a ground for divorce, but as showing how intimate the defender and co-defender were with each other, and the high probability that if they had opportunity they would repeat their adulterous conduct. Even to this limited extent (and the demand is plausible enough) the Lord Ordinary could not admit any proof of what the condonation had swept away. He conceives that the authorities upon this subject, such as Sanchez, which have guided the Consistorial Courts in Scotland, forbid any reference whatever to the wife's former adultery. The case is to be treated the same as if the marriage had just begun, and the wife were pure and innocent. The case is different, according to English law, which treats all condonations as conditional, and as being repealed by any subsequent conjugal misconduct. A striking illustration of this will be found in the most recent cases on the subject ( Newsome v. Newsome, 6th June 1871, 1071 L.R., Prob. and Div. 306), and the import of the English cases is, that to revive condoned adultery it is not necessary that the new injury should be of the same nature, but that cruelty, desertion, or other improper conduct was sufficient— Snow v. Snow, 2 Notes Cases, Supp. XIII.; Bramwell v. Bramwell, 3 Hags. 619; Westmeath v. Westmeath, 2 Hag. Supp. 113, and other cases noted in Pritchard's Digt., p. 74, No. 71).

This is not the law of Scotland, as the case of Lockhart shows. Sanchez states the doctrines (10, 5, 21) in a sentence—‘Primum illud adulterium est remissione extinctum at crimen semel transactione aut indulgentia accusatoris extinctum non potest amplius ab eodem in judicium deduci.’ Had, therefore, this been the simple case of the innocent husband claiming right to prove condoned adultery against a wife who had relapsed, with the view merely of showing the intimate relationship between her and her paramour, the proof would not have been allowed. But the specialty in the case is, that the pursuer avers that condonation was given ‘on the express condition undertaken by the defender at the time, as the condition of the condonation, that she should never again speak or write to the co-defender. The said condition has been broken by the defender as after mentioned.’ That a husband who has been wronged by the infidelity of his wife may attach a condition to his pardon is a proposition to which no sound objections are apparent. It was within his power to give or to withhold the pardon, and if so, there is nothing contrary to principle or to public policy to hold that he could state the terms and conditions upon which she was to be again reinstated in her place as wife. This, in truth, is shown by the present state of the law of England, which is the same, without any express condition, as the alleged express condition would make the present case.

In these circumstances it is necessary to allow the pursuer a proof of the conditional nature of the remissio, and seeing this proof must be taken, it would divide the case without any apparent advantage if a proof were not allowed at the same time of the condoned adultery. Of course, if the condonation was unconditional, no attention whatever will be given to such proof.”

The defender reclaimed, and argued against the Lord Ordinary's opinion in regard to the specialty in the case, and that condonation—which was to be inferred from cohabitation—was absolute and unconditional, and excluded all inquiry into the past, whether for the purpose of establishing a substantive ground of divorce on prior acts of adultery or for strengthening the case as to alleged subsequent acts, and referred to the authorities quoted by the Lord Ordinary, and to Fraser on Husband and Wife, p. 1180.

The pursuer argued that condonation was always conditional on future good behaviour on the part of the erring and forgiven spouse, and did not exclude inquiry into previous conduct in an action founded on an allegation of subsequent acts of adultery. This was the law of England as well as of Scotland ( Keats v. Keats, 28 L. J. 57).