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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Harvey v. Farquhar [1872] UKHL 421 (22 February 1872)
URL: http://www.bailii.org/uk/cases/UKHL/1872/09SLR0421.html
Cite as: [1872] UKHL 421, 9 ScotLR 421
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SCOTTISH_SLR_House_of_Lords
Page: 421↓
House of Lords.
v.
(Ante, vol. viii, p. 441.)
Subject_Husband and Wife — Divorce — Adultery.
Facts:
Held (affirming the judgment of the Court of Session) that a husband divorced for adultery forfeits all the rights under his contract of marriage.
This was an appeal against a judgment of the Second Division of the Court of Session, as to the forfeiture by a husband of his rights under a marriage-settlement by reason of adultery. The appellant was the third son of the late John Harvey of Kinnettles, who died in 1830. By the father's settlements, the estate of Kinnettles was left to the eldest son, and the rest of the properly divided equally among the younger children. In 1812 the appellant married Miss Rachael Hunter, the eldest daughter of William Chambers Hunter, of Tillery and Auchiries, Esq., and her father was a party to a marriage-contract executed before marriage. By this contract the appellant bound
Page: 422↓
himself to pay to his marriage trustees, of whom the respondent is the surviving trustee, and assigned to the trustees in security thereof all his right under his father's trust-disposition. On the other hand, Miss Hunter, with her father's consent, assigned a bond of provision, executed by her father, over his entailed estates, and the interest she had in a mortgage for £4000, conditioned to be executed by her father over his unentailed estate in favour of his children. The object of these assignments was that the sums of money falling under the trust were to be held by the trustees exclusive of the husband's jus mariti and right of administration, and were not to be liable for his debts or deeds, or right legal diligence of his creditors. The funds were to be invested on security during the joint lives of husband and wife. The trustees, after deducting necessary expenses, were to pay the annual proceeds to the husband for the maintenance and support of himself and his spouse and family. It was also provided that on the dissolution of the marriage by the death of either of the contracting parties, in the event of there being issue of the marriage alive at the time, the annual proceeds were to be paid to the survivor, and on his or her death the principal sum was to be divided equally among the children at majority. There was in the marriage-contract no discharge on the part of Miss Hunter of the provisions settled upon her by the marriage-contract of her parents. The trustees of the marriage-contract had all died or resigned except the respondent. In 1844, by way of implementing his obligation, the husband granted to his marriage trustee a heritable bond for £4000 over his estate of Monecht in Aberdeenshire.
The husband (the appellant) alleged that he never could get from the trustees any satisfactory account of what sums of money they had received under the assignations of the wife's property. There were three children of the marriage, of whom one only survived—namely, a daughter, now married.
In January 1848 the appellant's wife raised an action of divorce for adultery, and obtained a decree in absence against him, as he was then in Canada, with a view to settle there. The want of pecuniary means prevented the appellant instituting an action of reduction till May 1850, but the action was then dismissed, on the ground that a year and day had elapsed since the date of the decree, and the same want of funds prevented his appealing to the House of Lords. Down to the year 1847 the appellant received from the trustees the annual proceeds of the trust funds, but they had refused to make any payment to him. In 1850 the appellant, as administrator for his infant children, raised an action of count and reckoning against the marriage trustees, but for part of the expense the trustees, in the course of the action, obtained warrant to incarcerate him, and he was compelled to execute a disposition omnium bonorum in favour of John Ligertwood, advocate in Aberdeen, as trustee for his creditors, whereby his interest under his marriage-settlement purported to be conveyed. As, however, Mr Ligertwood would not appear in the action, it was, in the absence of the appellant, dismissed. The appellant having thus been for twenty-three years deprived of any benefit from the marriage-contract even for his own property, and the trustees having contended that he had forfeited all benefit by his divorce, he raised the present action against his trustee for a count and reckoning, concluding for payment of the funds to which he was entitled, namely £3500, and interest.
The respondent, in his defence, said that after the divorce in 1847 the wife's trustees took the opinion of counsel, and were advised that the decree of divorce had the same effect on the wife's rights as his natural death would have had. Accordingly, the trustees had ever since paid the interest of the sums of £4000 and £1750 to the wife, who had since married Mr Jopp, wine merchant in Aberdeen.
In his pleas in law the appellant contended that the decree of divorce had not the effect of depriving him of his own share of the property settled by the marriage-contract, while the respondent contended the contrary. The Second Division ultimately, after ordering the appellant to find security for costs, assoilzied the defender, the now respondent. All the judges said that divorce was the same thing as the natural death of the husband. The husband now appealed from that decision.
The Solicitor-General ( Sir G. Jessel), for the appellant, said this was an appeal on a very important point of law in Scotland. This marriage-contract contained a clause which amounted to this, that the husband sets apart his own property to form a provision for himself, independent of his creditors. That was a perfectly competent and legal thing to do in Scotland, being what is called an alimentary provision, though in England it was not allowable. The law of England was, no doubt, peculiar in that particular. The object of this appeal was to upset a series of decisions under one of the old Divorce Acts, but as those decisions had never been reviewed by this House, it was proposed that this shall now be done. The Scotch Courts had, by an extraordinary misapprehension of a very plain statute, interpreted it in such a way as to create a new law altogether, and it was clear law that however old a statute may be, no length of misreading or misconstruing it is to be allowed to alter that statute, and in effect to make a new statute. The theory the Scotch Courts had gone upon was this—That when a man committed adultery, and a divorce followed, the divorce had the same effect on the marriage-contract as if he were naturally dead, and that he was to lose not merely the property of his wife given to him, but his own property included in the settlement. How could it be possible to arrive at this result on any legal principle? The Courts had proceeded on what they call analogy to the law as to desertion. They thought because forfeiture was said to follow on desertion, it would be strange if the same thing did not follow on adultery. Such a mode of construing a statute would not be allowed in modern times. There was no common law on the subject, for divorce was not allowed at all till the Reformation, when some statutes passed on the subject. By the first Act of 1551 notour adultery was punished by escheat of moveables, but no loss of patrimonial rights by the offending party to the other was declared. By the later Act of 1573, if one party maliciously deserted the other, the party, on an action of adherence, would tyne and lose the tocher and marriage gifts. But there was no such consequence declared in case of adultery, nor has any Court power to say that divorce for adultery means the same thing as death, unless the marriage-contract say so. Nothing but a contract could declare it to be so.
Page: 423↓
Solicitor-General—That may be so. It is, no doubt, a delicate thing to do to introduce on such occasions, but I have met with one or two instances of it.
Solicitor-General—I believe that until the adultery was brought before the kirk-session, and an ecclesiastical censure pronounced, it was not notour adultery.
Lord Chancellor—The kirk-session might look over the matter once or twice, perhaps.
Solicitor-General—Yes; and when the person became incorrigible, the church then dealt with him. It was true there were several decisions in the Scotch Courts which assumed that adultery was equivalent to civil death, and Stair and Erskine were said to be authorities to that effect. But it has been suspected that both those works, having been posthumous, or printed from an incorrect copy, the whole doctrine originated from some printer's error. But, at all events, it was admitted that the Courts had reasoned by analogy as to adultery from the statute as to desertion.
Solicitor-General—That is clearly so. It is a loose and uncertain way of arriving at a conclusion. Therefore the decisions, even though apparently against me, ought now to be overruled by the House.
Solicitor-General—I say, if it contradicts the plain meaning of a statute, never.
Lord Chancellor—But statutes may go into desuetude in Scotland.
Solicitor-General—However the error may have originated, the error is plain, and the whole series of the decisions ought to be overruled at once.
Mr Anderson followed on the same side, and called their Lordships' attention to the terms of the marriage-contract, that the provision to the husband was alimentary, and not to be attached for any of the husband's debts and deeds.
Mr Anderson—Yes. The adultery is the deed of the husband. The divorce follows upon the adultery.
Mr Anderson contended that the word “deed,” and the word “misdeed” too, was used in the law of Scotland so as to include acts of adultery, and the divorce might well be called the deed of the husband who committed adultery. There was in this case, no doubt, a series of decisions, but these were all founded on an erroneous construction of a statute, and this House had on several occasions reversed decisions, though they had been of long standing.
The Lord Advocate said that the law in question was too ancient to be now overruled. There were no authorities that did not treat this doctrine as the part of the then existing law. Indeed, it was part of the common law, and should not at all depend on statute. The rule was that the delinquent party who committed adultery forfeited all the provisions contained in the marriage-contract for his or her benefit.
The Lord Advocate said he would show both doctrines to be well founded on authority in the law of Scotland. The doctrine in question was well settled, and the appellant's counsel were wrong in assuming that it originated in the construction of the old statute as to wilful desertion. It was founded on the common law and the law of Europe prevalent before the Reformation statutes; and though it was insinuated that the text of Stair and Erskine on this point was corrupt, that assumption was not founded on fact, for all the manuscripts from which “Stair's Institutes” were printed were in the Advocates' Library, and contained the words which are said to be since inserted without authority.
Lord Advocate—I am not frightened at all by it, and will contend that it is sound law. The husband by the old law would have been hanged for his conduct; and though that part of the old statute has gone into desuetude, there is no reason why the more lenient consequence should not follow. This was so ancient a part of the law of Scotland that it was impossible to find the origin of it. At the same time, I may incidentally mention that it is a law which might now be very properly altered, and I had it in my intention to propose some alteration at an early date, so as to introduce into Scotland the law that was applied to England by a recent statute.
Lord Advocate—They are a moral people, without the superlative “very.” I think there are no statistics of the kind.
Lord Advocate—That may be so. It is probably a very rare case, but we go that length. The doctrine of forfeiture by reason of adultery is laid down by all the authorities—by Stair, Erskine, Kames, and Bell; and there are numerous authorities all assuming this law as indisputable. There was also a case before Lord Eldon on appeal from Scotland, which recognised the same doctrine.
Page: 424↓
Lord Advocate—That would be so if the same effect would follow upon his death at the date of the divorce. The doctrine having been acted on for hundreds of years, it was too late now to overrule it.
Sir R. Palmer, Q.C., followed on the same side, and said that, whether the law was right or not, still it could not be described as intrinsically unjust; and though the consequences might be startling in the case of large sums being settled by the husband, still, that would no doubt be corrected by legal advisers warning parties against such possible consequences if large funds were included in the settlement.
Mr Anderson, Q.C., replied, and said that the appellant's counsel had quite failed to show that this doctrine was founded on the common law before the Reformation. The utmost that was then accepted as law was that the guilty party should not profit by the marriage gifts. There was no forfeiture, but merely a restitution to the wife of what had been her own. The proper meaning of a donatio propter nuptias did not include what property came from the husband, and was settled on himself. The old Act as to forfeiture upon wilful desertion was not interpreted to mean what the respondent contended, but it was limited only to this—that the husband forfeited what he got from the wife, and what he had given to the wife, but he did not lose the benefit of the settlement arising from his own property settled upon himself. If there had been any ambiguity in the statute, and a series of decisions had interpreted in one way, the House would no doubt be slow to overturn such a rule; but as the statute was clear, there was nothing unusual in the House overruling erroneous decisions and restoring to the statute its natural meaning. The interlocutor ought therefore to be reversed.
At advising—
Lord Chancellor—In the first case the appellant Mr Harvey seeks a reversal of the judgment of the Court of Session as to certain rights which he put forward to the interest of some of the funds settled on his contract of marriage with a Miss Hunter. The marriage proved not to be a happy one, for it was some years after dissolved by a decree of divorce, on the ground of the appellant's adultery. It was said that the decree had been obtained in his absence, but however that may be, or whatever was the reason, it was never, at all events, set aside. The wife so divorced had since married Mr Keith Jopp. The question that arose was as to the effect of the divorce so obtained in the interest of the appellant in the funds vested in the marriage trustees. On the marriage a sum of £4000 was settled by the husband, and about £1700 by the wife and her father. Those funds were vested in the marriage trustees, and they were held to be not liable for the husband's debts or deeds, or the legal diligence of his creditors. The interest was to be paid during the joint lives of the married parties to the husband for the maintenance and support of himself and his spouse and family: and at the dissolution of the marriage by death of either party, if there were issue alive, the income to be paid to the survivor, and on the survivor's death the principal to be equally divided among the children. There was one child now alive and married. The Court of Session had held that, by virtue of the divorce, all the interest of the husband in this fund had ceased as if he had been actually dead, and that the wife's interest came into full operation. That was so decided on the authority of a law which had existed for 200 or 300 years in Scotland, but it had been argued at the bar that there had never been an opportunity for the House of Lords to review and confirm the doctrine. It was said that in 1573 a statute had passed, providing that in case of wilful desertion by a married person, that person, after decree, should lose and forfeit all the donationes propter nuptias. It was said that the Court had, by analogy, without authority, extended the statute to the case of divorce for adultery, and that by an error in Lord Stair's work there had grown up a doctrine of this kind, which had been acted on ever since, though quite unwarranted. Now, it seemed to him (the Lord Chancellor) that the error alleged could not be relied on as the source of this doctrine. Nor could it be contended that there was no common law on the subject before the Reformation, for it had always been allowed in the Church to obtain a divorce a mensa et thoro, and an old authority in the books in Scotland in 1540 showed that was then the law of Scotland, and that a forfeiture like that now in question then existed as a consequence of the divorce. The doctrine of the law of Scotland as to adultery had always been more severe than that of the law of England, and an early statute in Scotland made adultery a capital offence. Then the series of decisions for two hundred years was too strong an authority in favour of this doctrine to justify any Court in now disregarding it. The House could not take upon itself to overrule all the chain of authority merely because some dicta of Judges and text writers occasionally suggested doubts as to the true origin of the rule. Then, if the doctrine was well founded, did it apply to the property brought into the marriage-settlement by the husband as well as by the wife? There seemed no ground for any distinction between them. For these reasons, the judgment of the Court below should be affirmed, with costs.
Page: 425↓
Judgment affirmed with costs accordingly.