Scottish Court of Session Decisions

This was an action of separation at the instance of John Nisbet, miner, Galston, against his wife on the ground of her cruelty. No defences were lodged. Evidence was led, from which it appeared that the parties were married in August 1882, and had lived together up to the date of the proof. There were five children of the marriage, and the defender was now forty years of age. It was proved that the defender was addicted to drink; that she neglected her household duties, and kept the house and children in a filthy condition; and that she was habitually violent in her conduct towards her husband and her children. Their doctor deponed that in his opinion her conduct was likely to endanger the health of the children.

Counsel for the pursuer stated that this was the first instance in Scotland of an action of separation at the instance of the husband, but the competency of such an action was recognised by Lord Fraser—Husband and Wife (2nd ed.), p. 906; and in England— Kirkman v. Kirkman, 1807, 1 Hag. Con. Rep. 409; Furlonger v. Furdlonger, 5 Notes of Cases, 422; White v. White, 1859, 1 Swab & Tris. 591; Pickard v. Pickard, 3 Swab. & Tris. 523; Forth v. Forth, 1867, 36 L.J., Pro. and Mat. 122. In the two most recent cases cited ( Pickard and Forth) it had been made a condition that the husband should provide a reasonable aliment for the wife. In this case the husband's income was £37 per annum, and he was willing to undertake to allow his wife 3s. per week.

On 7th November 1896 the Lord Ordinary granted decree in terms of the conclusions of the summons.

Opinion.—“Actions of separation and aliment on the ground of cruelty are usually brought by a wife, but there is no doubt of the right of a husband to bring such an action. In this case it has, I think, been established that the conduct of the wife has been so violent to the pursuer and to the children as to entitle the pursuer to decree. It may be that the pursuer is able to take care of himself. But he could only protect himself from his wife's violence by retaliation, and his mere ability to retaliate cannot disentitle him to decree of separation. It has, in my opinion, been proved that the children, for whose safety the pursuer is bound to provide, have been endangered

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by the defender's violence, and I consider I am entitled to take this into account in granting decree of separation. I think, however, that provision must be made for the maintenance of the wife, and decree has been granted on the pursuer's undertaking to afford his wife aliment at the rate of 3s. per week.”