Scottish Court of Session Decisions

On 18th July 1893 the Lord Ordinary ( Stormonth Darling) pronounced the following interlocutor—“Finds facts, circumstances, and qualifications proved relevant to infer the defender's guilt of adultery with the co-defender: Finds the defender guilty of adultery with the co-defender accordingly: Therefore divorces and separates the defender from the pursuer and from his society, fellowship, and company: Finds, decerns, and declares in terms of the conclusions of the summons for divorce: … Decerns against the co-defender for payment to the pursuer of the sum of £50 sterling in name of damages, with interest thereon as concluded for: Finds the codefender liable to the pursuer in expenses as well for those incurred by the pursuer himself as for those for which the pursuer may be liable in respect of the expenses of the defender: Further, finds that the pursuer is liable to pay the expenses incurred by the defender, &c.

“ Note.—… I therefore think that on the night of 16th February he was in a state of mind which made it very likely that he would condone his wife's offence, but I do not think it is proved that he ever actually did.

That being so, it is unnecessary for me to come to any conclusion on a question which has never been conclusively settled in our law, whether there can be condonation without cohabitation. The canon law says there can, the law of England says there cannot. The opinion of the Judges who decided the case of Ralston, 8 R. 371, are rather in favour of the English view though the point was left open, and Lord Watson, in the case of Collins, 11 R. (H.L.) 39, 9 App. Ca. 205 (p. 257), speaks as if the resumption of cohabitation were necessary to constitute plena condonatio according to the law of Scotland. I should not like to say that condonation might not be constitututed in certain circumstances by a distinct and deliberate declaration of forgiveness though no cohabitation followed. But I am clearly of opinion that, to have the effect of remitting the injury, the declaration of forgiveness would require to be very deliberate and quite unequivocal. I do not think it could be inferred from any act short of cohabitation. In the present case I think there is no sufficient evidence of express condonation, and there is admittedly no cohabitation from which it can be inferred.” …

The defender reclaimed, but on 21st December 1893 the Court adhered to the interlocutor of the Lord Ordinary without calling on the pursuer's counsel.

The defender thereafter moved that the pursuer should be found liable for the expenses incurred by her since the date of the Lord Ordinary's interlobutor. The defence raised a difficult question concerning the law of condonation which the defender was entitled to submit to the review of the Court— Donald v. Donald, March 30, 1863, 1 Macph. 141; Hoey v. Hoey, June 6, 1884, 11 R. 905.

Argued for the pursuer—He should not be found liable to pay the expenses of his wife since the date of the Lord Ordinary's interlocutor. No reclaiming-note should have been brought, and the case was so plainly made out that the Court had adhered to the Lord Ordinary's interlocutor without calling for a reply— Montgomery v. Montgomery, January 21, 1881, 8 R. 404.

At advising—

Lord Young—We think no expenses in connection with this reclaiming-note ought to be allowed to the wife. That is the opinion of the Court.