Scottish Court of Session Decisions

Robert Alexander, clerk, Glasgow, pursuer, brought an action against Mrs Ruth Crawford or Alexander and against Isabella Beveridge Alexander, a child of the said Mrs Ruth Crawford or Alexander, defenders, for declarator “that the first named defender was at the time of the pretended marriage between her and the pursuer pregnant of a child of which the pursuer is not the father, and that this fact was unknown to the pursuer at the time of the marriage and was concealed from him … that the said pretended marriage betwixt the pursuer and the defender was from the beginning, is now, and in all time coming shall be, null and void and of no avail, force, and effect; and that the pursuer is free to marry any free person; and … that the pursuer is not the father of the second defender, being the female child born to the first defender on 21st November 1917, and registered under the name of Isabella Beveridge Alexander.”

The pursuer pleaded—“1. The marriage between the pursuer and the defender Ruth Crawford or Alexander being null and void, decree of declarator of nullity should be granted as concluded for. 2. The defender Isabella Beveridge Alexander not being the child of the pursuer, declarator should be granted to that effect.”

The defenders pleaded—“1. The averments of the pursuer being irrelevant and insufficient in law to support the conclusions of the summons, the action should be dismissed. 2. The averments of the pursuer so far as material being unfounded in fact, this defender is entitled to be assoilzied from the conclusions of the summons. 3. In any event the pursuer is barred personali exceptione from insisting in the present action.”

The facts are given infra in the Lord Ordinary's opinion.

On 15th January 1919, after proof led, the Lord Ordinary ( Anderson) found and declared in terms of the declaratory conclusions of the summons.

Opinion.—“This is an action of declarator of nullity of marriage at the instance of Robert Alexander, 30 Willowbank Street, Glasgow. The defenders are Ruth Crawford, whom he purported to marry on 2nd November 1917, and a child born of the said Ruth Crawford on 21st November of that year. The legal basis of the action is that which was formulated in the case Stein, 1914 S.C. 903, namely, this, that the pursuer had been deceived into entering into the contract of marriage with the defender, a material fact having been fraudulently concealed from him by her, to wit, that at the date of the marriage she was pregnant as the result of intercourse with a man other than the pursuer. The case of Stein decided that if those facts be substantiated the pursuer is entitled to have the alleged marriage declared null and void.

The history of those young people prior to the present litigation is this—I call them young people, because even now the pursuer is 23 and the defender 22—that the parties six years ago or thereby, being then aged 17 and 16 respectively, became acquainted. They were both resident in the city of Glasgow, the pursuer living with his parents and being then an apprentice plumber, and the defender living with a Mr and Mrs Crawford, who had adopted her as their daughter, her own parentage being somewhat obscure.

“The boy and girl became intimate to the extent that carnal intercourse took place frequently between them from the time shortly after they got to know each other until the month of May 1916. They then had a quarrel and ceased to be intimate until the end of that year. On 8th November 1916 the pursuer had a very serious accident. He had his left arm torn from his body, his right arm broken in three places, and he sustained serious injuries to his head, the result of which was that his mental powers were seriously impaired then, and in my opinion have not entirely been recovered even now.

When he was in the infirmary recovering from these terrible injuries the defender Ruth Crawford visited him, being desirous to renew her friendship with him, and she continued practically daily to go and see him in the infirmary until he left the infirmary about 26th February 1917. Thereafter she saw him on a few occasions at his parents' house, but again, about the beginning of the year 1917, a coolness sprang up between the two and admittedly continued for some months.

The parties are at issue—and this is an important fact in the case—as to when intimacy

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was resumed between them, but for a time, at all events, in the spring of 1917 the two saw nothing of one another. The pursuer admits that he resumed his intercourse with Ruth Crawford in the summer of 1917, and both in Glasgow and at Rothesay and again later in Glasgow he had frequent connection with her.

Ruth Crawford became pregnant in the spring of 1917, and she communicated this fact to the pursuer towards the end of June of that year, and the pursuer, believing from her statements that he was the cause of her pregnancy, agreed to marry her and did marry her on 2nd November 1917. A female child was born, as I have said, on the 21st of that month, nineteen days after the marriage. The pursuer on the birth of the child came to the conclusion that he could not be the father of it, and he has accordingly sought this remedy in order to have the marriage declared null.

Now there is no doubt that in a case of this sort the burden of proof upon the pursuer is a heavy one even in a case more favourable in its circumstances than the present, because he is asking the Court to alter the status not only of the woman who has been made his wife but of a child who is not very directly represented in the process. In the present case I think the onus of proof upon the pursuer is exceptionally heavy.

To begin with, he married this girl knowing that she was pregnant. In most cases I have to deal with, including the case of Stein, the pursuer has come into Court averring that he was in the belief that he was about to marry a virgin and he found instead of that he was marrying a woman who was not a virgin and whose loss of virginity was occasioned by a third party.

It is also a feature in this case unfavourable to the pursuer that he admits that he had carnal connection with this woman prior to the time when the child must have been conceived and subsequent to that date, and it is common ground that there was, at all events, opportunity of connection between the two parties at the time when the child was procreated, because then both were living in Glasgow and their respective residences were well known to each other.

But the pursuer meets those two points of difficulty by stating frankly that he understood that the pregnancy of Ruth Crawford at the date of the marriage was due to himself, and he maintains as regards the antenuptial intercourse that it was just because he thought that condition of pregnancy was due to intercourse which he admits having taken place between them in the month of May and subsequent months that he agreed to marry her.

But there is a third unfavourable circumstance, and it is the most serious point which the pursuer has to meet, namely, that after the child was born he went to the registrar, gave the information to the registrar from which the entry of registration was filled up, that information being that the child was legitimate and was his child, and he chose the names, being the names of his own mother, which the female child was to bear.

Now that undoubtedly is a most serious difficulty which the pursuer has to overcome. But it must not be left out of account that a letter was written, and I hold it proved that that letter was written and was intended to be sent to the registrar but was not sent, in which the pursuer interpels the registrar from proceeding to register the birth of that child until he (the pursuer) has communicated with the registrar; and later on, to wit, in the month of January 1918, I hold it proved that the father of the pursuer, acting on pursuer's behalf, went to the registrar and made an effort to get the entry changed from the entry of a legitimate birth into the entry of an illegitimate birth. He was only interpelled from proceeding to get that carried into effect from considerations of expense, because it was necessary to go before the Sheriff by way of petition, which would cost a considerable amount of money.

Accordingly I am not prepared, although this is a serious point against the pursuer, to hold the matter concluded against him and adversely to his case because he did go and register the child as legitimate. I accept the explanation that he gives of his action in connection with that matter.” … [His Lordship on the evidence held that the pursuer was not the father of the child.] …

There is only one other matter which perhaps I should allude to. There is a plea of personal bar upon record. Mr Maclaren did not deal separately or specially with the plea, but I understand that it is based upon two things—(1) the fact that this man registered this child as his, and (2) upon the allegation that after he got to know all about Hunter he cohabited with his wife and treated her as his wife. I have already dealt with the birth of the child. I do not think that he is personally barred from sueing this action and from succeeding in it because in the circumstances in which he did act he registered the child as a legitimate child.

With regard to the other matter, it is a new point, but I do not see why there should not be a condonation in a case of this sort just as in a case stante matrimonio. The pursuer admits that he occupied the same bed as Ruth Crawford after the marriage, but he says he did not have intercourse, and I believe him on the point.

Therefore the onus of proof on this matter being on the defender, I reach the conclusion that she has not proved marital intercourse took place subsequent to the date when the pursuer got to know of her lapse with the man Hunter. Accordingly I am prepared to repel this plea of personal bar.

On the whole matter I propose to grant decree as concluded for.”

The defender Mrs Ruth Crawford or Alexander reclaimed, and argued—Assuming that at the time of the marriage the defender's pregnancy was due to her connection with another man, nevertheless that fact was not a ground for declaring the marriage null. (1) The pursuer knew

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that the date of his first connection with the defender after intimacy was resumed between them was 20th May; (2) the defender had told him that the other man had had connection with her; (3) yet the pursuer registered the child as his own giving it his mother's names; and (4) resumed sleeping in the same bed with the defender, from which fact it was to be presumed that sexual connection had taken place— Walker v. Walker, 1911 S.C. 163, 48 S.L.R. 70, per Lord President (Dunedin) at 1911 S.C. 170, 48 S.L.R. 75; X v. Y, [1914] 1 S.L.T. 366. Accordingly the pursuer had condoned the defender's conduct and had homologated the marriage— Walker v. Walker, cit., per Lord President (Dunedin) at 1911 S.C. 168, 169, and 170, 48 S.L.R. 74 and 75; Bankton, Inst., book i, tit. v, section 2, 34; Fraser, Husband and Wife (2nd ed.) vol i, p. 456, and vol. ii, p. 1178; Stair, Inst., i, 4, 6, (referred to by Lord Justice-Clerk).

Argued for the respondent—At the time of the marriage the defender's pregnancy was due to her connection with another man, and her conduct had not been condoned by the pursuer and the marriage had not been homologated. A marriage which was null on the ground of fraud could not be set up by the condonation of the fraud, because there was no contract which could be set up. In any event nothing short of proof of actual intercourse between the pursuer and the defender would amount to condonation— Hunt v. Hunt, 1893, 31 S.L.R. 244—but there was no such proof in the present case, and apart from such proof it was a question of circumstances as to whether the conduct of the aggrieved party showed that he had remitted the injury— Edgar v. Edgar, 1902, 4 F. 632, 39 S.L.R. 424; Collins v. Collins, 1884, 11 R. (H.L.) 19, 21 S.L.R. 579, per Lord Watson at 11 R. 39, 21 S.L.R. 589. The onus was on the defender to prove intercourse and she had not discharged it.

At advising—