Scottish Court of Session Decisions

At advising on 2nd June 1966,—

LORD STRACHAN .—This is an undefended action for divorce by a wife on the ground of her husband's cruelty. The cruelty which is alleged consists of one act of gross indecency by the defender, for which he was convicted under section 11 of the Criminal Law Amendment Act, 1885. The Lord Ordinary, after proof, refused to grant decree of divorce and assoilzied the defender. The pursuer reclaimed, and after partly hearing senior counsel we allowed the pursuer to lead further evidence. The additional proof has now been taken, and the case has to be disposed of on the evidence as a whole.

[After the narrative quoted supra, his Lordship continued]—The case raises two main questions, viz., (1) whether the defender's conduct was of such a nature as could constitute cruelty in law, and (2) whether that conduct caused danger to the pursuer's health or gave rise to a reasonable apprehension of such danger.

In regard to the second of those questions the Lord Ordinary was in favour of the pursuer. He found that some slight injury to the pursuer's health had been established and he held that that injury was "just sufficient to escape being disregarded on the principle of de minimis." I agree with the Lord Ordinary's opinion on that question and I do not find it necessary to add anything to what he has said on this branch of the case.

The other question, however, is much more difficult, and I have not found it easy to decide whether the single act of gross indecency by the defender with another man can amount to cruelty as a ground of divorce. There is no reported previous decision which is directly in point, and it is unfortunate that this question has first arisen in an undefended case with the result that the Court has heard argument on only one side.

There is ample judicial authority for the proposition that the law as to what constitutes cruelty is the same in England and Scotland. Before the English case of Gollins it had been held in both countries that conduct which is said to amount to cruelty by one spouse must be "aimed at" the other spouse: Kaslefsky;Waite. That is no longer the law, as it was held in Gollins that it is not an essential requisite of cruelty that the conduct in question should be aimed at the other spouse. In cases to which the Divorce (Scotland) Act, 1964, applies, section 5 (2) (b) of that Act seems to have the same effect. But both before and after the decision in Gollins there were some cases in England where indecent assault by a husband against a daughter of the marriage or other young girl was held to be cruelty for the purpose of divorce, and these cases must be considered in deciding the present case. In Cooper, Karminski, J., in reviewing cases of that type said (at p. 110):

"The proposition that acts of sexual perversion or sexual irregularity may, under certain circumstances, amount to cruelty to the innocent spouse, would appear to have been long established,"

and he then referred, inter alia, to Thompson, Bosworthick and Boyd. In Cooper,Lord Merriman (at p. 123) expressed the view that the three last-mentioned cases afforded authority for the proposition that sexual offences against third parties which are directly relevant to the husband's conjugal obligations may be cruelty to the wife. It is to be noted that in Cooper, this type of case was not regarded as being inconsistent with the former rule that the conduct must be "aimed at" the other spouse. It was held that in such circumstances the husband must have known, if he thought about it, that his conduct would cause the gravest distress and possibly severe injury to a normal wife and that if he was careless and indifferent whether his conduct distressed the wife or not then an intention to injure might be inferred. Dealing with the particular facts in Cooper, where the indecent assault was against a child of the marriage, Karminski, J. said (at p. 122):

"I doubt not that any man of ordinary intellectual capabilities must have known, if he paused to reflect, that an act of that kind, assuming always it was discovered by the mother or brought to her notice, would be a dreadful blow to her normal susceptibilities."

The series of cases of that type has been reviewed by the Lord Ordinary and I do not refer to them further in detail. The dicta to which I have referred have, in my opinion, a bearing on the present case and the result of the English cases and the Scots cases of Waite and Brown seems to be that an offence against the criminal law by a husband may be cruelty for the purposes of a divorce at the instance of his wife (a) if his conduct was grave and weighty and (b) if his conduct directly affected, or struck at, the matrimonial relationship.

The Lord Ordinary was of opinion that the defender's conduct in the present case was much less revolting than the conduct of the defenders in the cases which he reviewed, and that it was also much less directly relevant to the conjugal relationship. He did not think that the defender's conduct could be described as "cruel" to the pursuer unless that word were given some artificially extended and unusual meaning. After full consideration of the whole case I have reached a different conclusion. It is true that the defender's offence did not corrupt any young person; it was committed with a consenting party; and the fine imposed was a comparatively light penalty. None the less it was disgusting and degrading conduct and from the point of view of the marriage it certainly was grave and weighty in my view. It was also conduct which affected the matrimonial relationship very directly. It gave rise to feelings of revulsion in the wife against any further sexual relations with the defender and I cannot say that her revulsion is in any way unreasonable. The defender's conduct has in fact put an end to sexual relations between the spouses and has brought cohabitation to an end. In those circumstances I think that the conclusion is inevitable that his conduct struck directly at the matrimonial relationship. Further, if cohabitation were to be resumed in these circumstances the injury to the pursuer's health, slight though it may have been in the past, would almost certainly recur. There would at least be a reasonable apprehension of such danger. I doubt very much whether she could resume cohabitation now with safety to her health. I have also come to be of opinion that it is not really artificial to apply the word "cruel" to the husband's conduct, for the situation as I see it is that after only seven weeks of reasonably happy marriage he indulged in indecency for his own perverted sexual satisfaction, although he must have known that if his wife got to know of it she would thereby be caused very great distress with possible damage to her health. In any event the case must be decided according to the legal, rather than to the ordinary, meaning of the word "cruel."

While I think that the case is undoubtedly a narrow one, I am unable to find any sufficient distinction between this case and the previous decisions to which reference has been made, and I would recall the the interlocutor of the Lord Ordinary, and grant decree of divorce in favour of the pursuer.

I would add that as I have not found it necessary to rest my decision on section 5 (2) (b) of the Divorce (Scotland) Act, 1964, I have not referred to that section in any detail because I am not entirely satisfied that the Act is applicable to the present case in respect that it came into force only on 31st July 1964, which was almost three years after the ground of action arose and was also subsequent to the raising of the action, and indeed to the date of the original proof. No argument was addressed to the Court on the question whether the Act is retrospective in its application, and in the circumstances, as it is unnecessary to found on the Act, it seems to me to be undesirable to do so.

LORD WHEATLEY .—I would have contented myself with a simple concurrence in the opinion which your Lordship has just delivered, had it not been for the fact that there is a division of opinion among us as to the manner in which the case falls to be decided. I shall accordingly record briefly my reasons for agreeing with your Lordship. I, too, find it undesirable to decide this case on the basis that the relevant provisions of the Divorce (Scotland) Act, 1964, are applicable here. I feel that since no argument was presented to us on the retrospective application of the provisions of that Act it would be unfortunate if we were to make a decision on that point. As I have come to the conclusion with your Lordship that this case can be determined on the basis of the pre-existing law, that problem does not arise. My greatest difficulty has been in accepting the Lord Ordinary's finding that the defender's conduct resulted in an impairment to the pursuer's health which just avoided being disregarded under the de minimis maxim. If I had been the Lord Ordinary I might not have reached the same conclusion, but looking at the evidence as a whole I cannot hold that the Lord Ordinary was not entitled to reach his decision. Once that point has been established the pursuer's case in my opinion becomes easier. In considering whether legal cruelty has been proved the Court has to look both at the conduct of the defender and its effect on the pursuer's health. I agree with your Lordship, differing from the Lord Ordinary, that the conduct of which the defender was proved guilty was grave and weighty and struck at the root of the matrimonial relationship. While the sexual element is not the only aspect of matrimonial relationship, it is normally an integral part of it, and a husband who commits an act of indecency such as the defender committed here within seven weeks of the marriage is doing something which any reasonable person, husband or wife, would realise might strike deeply and possibly irredeemably at the matrimonial relationship. When the pursuer depones, and her evidence is accepted, that the effect which the discovery of the defender's conduct had on her was to make the thought of physical contact with him so repellent that she could not contemplate living with him again as his wife, and there is a finding that his conduct and its consequences had a not insubstantial detrimental effect on her health, then I am of the opinion that the requirements of saevitia have been established. I cannot believe that such conduct may not be as grave and weighty and strike as much at the basis of the matrimonial relationship as the type of physical assault which is considered sufficient to meet the requirements of present-day standards. Tested even by pre-1964 Act criteria, I cannot say that the wife does not require to be protected against a recurrence of such treatment because this was the only act of indecency which had been proved against the husband. When a man has given evidence of his susceptibility to resort to such conduct on one occasion it is not unreasonable to infer that it might be repeated. In any event the gross nature of a single act may be sufficient to constitute cruelty and entitle the other spouse to the protection of the Court against the reasonable possibility of a recurrence and in my opinion this was such an act. I accordingly agree that the interlocutor of the Lord Ordinary should be recalled and that decree of divorce should be granted.

LORD WALKER .—This case has I think become unnecessarily complicated by the citation of a number of authorities in which the circumstances differed widely from those of the present case. The proposition which counsel sought to draw from them is recorded in the Lord Ordinary's opinion and is "that any misconduct, or any conduct which was in itself reprehensible, and which in fact had an adverse effect on the pursuer's health, would entitle the pursuer to divorce on the ground of cruelty." If that proposition is intended to be stated without regard to the degree of reprehensibility or the extent to which health is affected, then, if the proposition were accepted, the pursuer would probably be entitled to divorce. The Lord Ordinary however rejected the proposition and in doing so he was clearly right. The question whether cruelty is established depends in my opinion on whether the husband's conduct and its consequences to the wife's health are so serious that the wife requires protection.

In this case the wife speaks to her husband drinking and using foul language, but from her brother-in-law's evidence it would seem that he had been fond of his drink and had used foul language in her presence even before marriage. No complaint is made about drinking and using foul language. He was employed as charge-hand in a butcher's shop and was considerably older than his wife, who was about twenty one years of age. On the evening of Friday 25th August 1961, in the seventh week of their marriage, he in company with another man called Thomson entered one of the incompletely enclosed cubicles in the lavatory in the Central Station, Glasgow. There each handled the private member of the other. They came under observation by railway policemen. They were caught in the act and taken into custody. Each was charged on summary complaint with a contravention of section 11 of the Criminal Law Amendment Act, 1885. The other man pled guilty on 30th August. The husband pled not guilty but was convicted on evidence on 26th January 1962. In each case a fine of £15 was imposed. Although the evidence suggests that the other man may have been a known homosexual there is nothing to indicate whether the husband had engaged in such practices in the past or was likely to do so in the future. The case is presented as being simply one of homosexual conduct on a single occasion.

In the early morning of Saturday 26th August the police came and informed the wife that her husband was in custody but without indicating the nature of any charge against him. She was upset and worried about him. Later on the Saturday forenoon she called on his sister but was unable to ascertain the nature of any charge against him. It was not until Sunday the 27th that she learned the nature of the charge. She then learned through the police and her brother-in-law that he had been caught in the act of committing a sexual offence with another man. As her information was to the effect that he had been "caught in the act" she believed that he must have been guilty. She was then greatly upset and shocked. On the Monday she learned that the other man was pleading guilty and that her husband was pleading not guilty, but she still believed her husband guilty. She suffered from worry and want of sleep. She consulted her doctor, who prescribed sleeping pills. She went to stay with friends for a change of scene. She decided not to resume cohabitation. She has never seen her husband since he was taken into custody.

The Lord Ordinary held that she sustained some slight injury to her health but only just sufficient to escape being disregarded on the principle of de minimis. He also held that the effect on her health did not last beyond the month of October. The doctor who saw her twice in September speaks to her being in an upset and distressed frame of mind. She could not sleep and was off work and he prescribed sleeping tablets. He does not however say in terms that there was any injury or apprehension of injury to her health. I doubt whether the evidence establishes any injury to health either actual or apprehended but my doubt does not go the length of persuading me to differ from the Lord Ordinary's finding on this matter.

In the additional evidence which was led before me the wife deponed:

"To me that is rather a repulsive act. I don't think a woman could go back to her husband after a thing like that."

That is probably a fair description of the impact made on this wife by her husband's conduct. And it probably describes the reaction of most young wives to such conduct. I think that from the matrimonial point of view therefore the husband's conduct must be regarded as being serious misconduct. The difficulty as I see it is whether such misconduct on one occasion resulting in an injury to health so slight as almost to be disregarded, justifies the Court in interfering with the obligations of marriage. The basis of the Court's jurisdiction to interfere is the need to protect the wife's health from the conduct of her husband. Here there is no evidence to suggest that the husband's conduct is likely to be repeated. Nor is there any evidence to suggest that the wife's feelings of repulsion might adversely affect her health if she resumed cohabitation. What did affect her health was I think the sudden shock on learning of what her husband had done. As that is not likely to be repeated I have come to the conclusion that no ground has been made out for interfering with the marriage tie. In my opinion the Lord Ordinary reached a sound conclusion and I would refuse the reclaiming motion.

I should add however that I am not to be taken as agreeing with the Lord Ordinary when he thinks that the ratio of the decision in Waite v. Waite has been superseded by the Divorce (Scotland) Act, 1964. It is not necessary to consider what the result might have been had the husband acted with malicious intention towards his wife. Clearly he had no such intention. Even if the recent Act requires the matter of intention to be left out of consideration altogether it is still necessary for the wife to prove cruelty, and that I think she has failed to do.