Scottish Court of Session Decisions

Fraser, for the defender, argued—This action was rested on allegations of cruelty, and of one act of adultery. The averments of cruelty were held irrelevant, and that judgment is final. The parties have been living separate for ten years. The wife deserted the husband, not on account of his misconduct. She thus violated her conjugal vow to adhere to her husband. At the end of these ten years, she complains of an act of adultery. In these circumstances, a wife is not entitled to aliment. Had she only asked separation, the action would not have been opposed. The Lord Ordinary has treated this case as involving a general question. The abstract proposition which he lays down is not sound. There is no remedy for adultery but divorce. But, besides, this case is a special one, in consequence of the wife's desertion for so long a time. He cited the following cases: — Duchess of Gordon v. The Duke, 8th June 1697, M. 5902; Cook v. Johnston, 23d February 1700, M. 5905; Seton v. Seton, 1705, Ferguson's Reports, p. 428; and Letham v. Letham, 8th March 1823, 2 S. 250 (284).

Asher, for the pursuer, answered — The sole question is whether in law adultery is a ground for granting separation and aliment. It is laid down in Fraser, vol. i., p. 464, that it is. The injured party is entitled, if she pleases, to select the lesser remedy. Before the Reformation in 1560, when marriage was regarded as a sacrament, separation was the only remedy for adultery. There is no authority for saying that after 1560, when divorce a vinculo matrimonii was introduced for adultery, separation ceased to be a competent remedy. Divorce is generally the preferable remedy; but in some cases, such as the present, it is not. The wrong-doer is not entitled to compel the injured party to select the remedy most beneficial to himself, and least beneficial to his injured wife. In the cases of Seaton v. Seaton, and Letham v. Letham, separation was granted for adultery.

Fraser, in reply—This woman, if living in adultery, could not have sued this action. She has been guilty of malicious desertion, which is at least as great an offence against marriage. He also referred to Leslie v Nairn, 4 Br. Supp. 880.

The Lord President—I have very great doubts whether a wife living with her father and mother, and apart from her husband for ten years, is necessarily guilty of wilful and malicious desertion, such as would entitle the husband to divorce her. The circumstances of the desertion in this case have not been proved. I think that the allegations of cruelty in this case, apart from adultery, though irrelevant as the ground of an action of separation, may be relevant, to preclude the husband from insisting upon the wife's return. There is no proof here, on either side, of the circumstances of the wife's absence. We are, therefore, brought back to the general question, whether adultery on the part of a husband entitles his wife to separation and aliment, as well as divorce. On that point I am of opinion that separation and aliment is a competent remedy. I do not think that the remedy of separation, which existed at a very early period, has been abrogated. The adultery here is proved and admitted. It appears that after commission of the adultery, the husband raised an action of divorce against his wife, on the ground of desertion, but we know nothing about that action. The wife was living with her parents; and it may be, for anything we know, that she was doing so with her husband's concurrence. She is not now, after the adultery, bound to return and adhere. I think, therefore, that the Lord Ordinary's interlocutor should be adhered to.

Lord Curriehill—I concur. Adultery has been a relevant ground for obtaining separation from the earliest period, and continues to be so. Is then, the wife in this case barred by her absence with her father and mother from seeking that remedy? I don't think she is. I think further, that the husband is not entitled in this case to say that his wife was guilty of wilful desertion. She put upon record allegations which she offered to prove, and, which, if true, showed that her desertion was not wilful. These averments were objected to by the husband as irrelevant, and she was thus prevented from proving them. I think, therefore, that we must deal with this case in ignorance of the cause of the absence, and on the footing that we do not know what it was.

Lord Deas—I have no doubt that a wife may bring an action of separation on the ground of adultery, and that she is not confined to the remedy of divorce. I think, too, that she may bring such an action whether the adultery is committed in the house where she and her husband are living or elsewhere. Farther, I have no doubt that if the wife in this case is entitled to separation, she is also entitled to aliment. The difficulty which I have lies here. It is plausibly maintained to us that we must assume that the wife during her absence unjustifiably absented herself from her husband. Such desertion would not have barred a divorce, but it may be a bar to separation and aliment. I think it is unfortunate that this matter should have been made to turn on a mere presumption, or rather on a question of onus, namely, whether it was incumbent on the husband or on the wife to prove that the absence was wilful desertion. I doubt very much whether, ten years' absence being admitted by the wife, it did not lie upon her to explain it. It is quite true her allegations were found irrelevant; but although irrelevant in one sense, they may be quite relevant in regard to this matter. I do not see that the interlocutor finding the allegations irrelevant must be laid at the door of the husband. In consistorial

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