Scottish Court of Session Decisions

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Cite as: [1888] SLR 26_46, [1888] ScotLR 26_46

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House Second Division.

Thursday, November 8. 1888.

[ Lord Lee, Ordinary.

26 SLR 46

Henderson

v.

Henderson.

Subject_1Expenses
Subject_2Husband and Wife
Subject_3Divorce
Subject_4Wife's Expenses of Reclaiming-note.
Facts:

Held ( diss. Lord Young) that a wife who had unsuccessfully reclaimed against a decree of divorce on the ground of adultery, and who had by her own earnings acquired separate estate to the extent of £500, was bound to pay her own expenses in both the Outer and the Inner House.

Headnote:

Upon 25th January 1888 Isabella Middler Burd or Henderson, wife of Andrew Henderson, blacksmith, Little Collieston, Slains, Aberdeenshire, brought an action of divorce against her husband on the ground of adultery, and upon 12th March 1888 the said Andrew Henderson brought an action of divorce against his said wife also on the ground of adultery. These actions were conjoined, and after hearing evidence the Lord Ordinary ( Lee) upon 22nd June 1888 pronounced decree of divorce in both actions, and with regard to expenses found the wife entitled to the expenses incurred by her in the action at her instance, and quoad ultra found neither party entitled to expenses. The wife reclaimed to the Second Division, but unsuccessfully.

It was admitted that for some years the husband had absented himself from his wife, and had not contributed anything to her support; that the wife had maintained herself by carrying on business as a farmer and innkeeper, and that by her earnings she had amassed a sum of £500, which was her own separate estate.

Upon the question of expenses it was argued by the reclaimer—She was entitled, in accordance with a well-established rule, to her expenses in both Courts, even in the action in which she was defender. In the case of Hoey, June 6, 1884, 11 R. 905, the wife, although unsuccessful, was found entitled to the expenses of her reclaiming-note, and that too from a perfectly innocent husband. It was only where a reclaiming-note was manifestly hopeless that expenses were refused. Here the evidence was such as to justify a reclaiming-note.

Argued by the respondent—If the rule was well fixed, the exception was as well established, that a wife with estate of her own must litigate at her own expense, and this specially applied to the case of a guilty wife reclaiming with a judgment of the Lord Ordinary against her—Fraser on Husband and Wife, 1231, 1235.

At advising—

Judgment:

Lord Young—It is my opinion that the general rule is as stated by Mr Young, that where a husband raises an action of divorce against his wife he must pay not only his own expenses but hers also, even although her defence has been unsuccessful. That is the general rule, and it was stated with some emphasis by the Lord President in a recent case cited to us, where a wife had reclaimed against a judgment which was against her. She had unsuccessfully defended the action; she had unsuccessfully reclaimed; and yet she was held entitled to get her whole expenses in both Courts, and that too in a case where she alone had been the guilty party. I understand an exception will be allowed where a wife has separate estate—that is, where she has independent means, but I would be loth to bring under that exception, which only may and not necessarily must be acted upon, a case where the wife has maintained herself for so many years, and where all her separate estate is due to her own earnings and savings. If out of this little account of savings she were to pay her expenses in this action, it would leave her practically with nothing to live upon. I think that because of a balance in the bank in her favour from the fruits of her own industry we should not take this case out of the general rule. But I look also to the behaviour of the husband, who has never performed towards her the duty of a husband. I think he ought to be subjected to the whole expenses of this action, which will have the effect, not that she will get one farthing out of him, but that her earnings will be protected from his claims.

Lord Rutherfurd Clark—I have no doubt about the general rule. Even although guilty of adultery a wife is entitled to her expenses in the Outer House, and in the Inner House also if there are reasonable grounds for her reclaiming. The question here is, whether this case should be brought under the exception to this rule. The ground for so bringing it is that the wife has separate estate of her own to the extent of £500, and on that ground the Lord Ordinary did not find the husband liable to the wife for the expenses incurred by her in the Outer House. I am not disposed to hold that a wife when she has such estate of her own, and is guilty of adultery, should be allowed to throw all the expense of the action upon her husband. I am therefore for affirming the Lord Ordinary's interlocutor as regards the expenses in the Outer House, and for finding no expenses due to or by either party in the Inner House.

Lord Lee—I concur with Lord Rutherfurd Clark.

Lord Justice-Clerk—I concur with the majority of your Lordships. I think there is not much room here for sympathy with either party. The wife has separate estate, she is in

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fault, and is therefore bound to pay her own expenses.

The Court adhered.

Counsel:

Counsel for the Reclaimer— A. J. Young—Salvesen. Agent— D. Howard Smith, Solicitor.

Counsel for the Respondent— Comrie Thomson—Rhind. Agent— William Officer, S. S. C.
1888