BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Barkworth v. Barkworth [1913] ScotLR 504 (12 March 1913) URL: http://www.bailii.org/scot/cases/ScotCS/1913/50SLR0504.html Cite as: [1913] SLR 504, [1913] ScotLR 504 |
||
[New search] [Printable PDF version] [Help]
Page: 504↓
A wife from whom the Lord Ordinary had granted her husband decree of divorce on the ground of desertion presented a petition to the Court for access to her children, who were in minority. Before the petition was heard the Court had, on a reclaiming note by the wife, recalled the decree of divorce, holding that there was no jurisdiction. Thereafter the petition for access was heard.
Held (1) that it followed from the former decision that neither had the Court jurisdiction to regulate family arrangements about the children; and (2)that the wife was entitled to her expenses because she was entitled to bring the petition at the time she did.
On 26th September 1912 Mrs Fanny Susannah Copeland or Barkworth, petitioner, presented a petition for access to the children of the marriage (who were all in minority) between her and John Edward Barkworth, respondent, for whom answers were lodged.
The petitioner and respondent were married on 15th February 1894. On 25th October 1911 the respondent raised an action of divorce against the petitioner on the ground of desertion, and on 9th July 1912 the Lord Ordinary ( Dewar) granted decree. On 15th August 1912 the petitioner presented a reclaiming note, and on 4th February 1913 the Court recalled the interlocutor on the ground of no jurisdiction.
Thereafter this petition was heard on 18th February when various authorities were cited for the petitioner and respondent on the question of access, but no authorities were cited on the question of jurisdiction.
At advising—
When the petition was brought affairs were in this position—An action for divorce for desertion had been brought by the husband against the wife, and on 5th July 1912 the Lord Ordinary, who had previously repelled a plea of no jurisdiction which had been tabled by the defender, pronounced decree of divorce. This petition was boxed upon the 26th September 1912. A reclaiming note was taken against the decree of divorce, and when that reclaiming note came up here in the month of February the interlocutor of the Lord Ordinary was recalled upon the ground that there was no jurisdiction in the matter, the Division holding that the domicile of the husband was not Scotch but was English.
That fact seems to me to alter entirely the position of affairs when this petition was presented, because we have this petition now at the instance of a lady who has successfully pled in the action of divorce that the marriage is not liable to be dissolved by the Scots Court because of want of jurisdiction over the spouses. I think that that fact necessitates as a corollary the domicile of this petition, for I think it is impossible that we should have no jurisdiction to settle the question of the marriage and at the same time have a jurisdiction to deal with the family arrangements about the children.
The parties to this petition are at this present moment married people. If the wife does not choose to live with the husband that is her own matter, but I am quite clear that if she wants any redress upon the question of the children she must apply for it in the Court where the domicile of the spouses is, namely, the Court of England. The only fact in regard to the husband is that he has got a house and lives in Scotland. The children themselves are in England for a large part of the year because the boys are at school there. I need scarcely say that if there was any order of the English Court upon the matter we should give the assistance of this Court to see that it was carried out in Scotland, but as matters stand I think the petition falls to be dismissed.
I think the petitioner here is entitled to her expenses. I do not go upon any question of the conduct of the parties, because that would be deciding upon a fact as to which I know nothing, but I think that in the position in which the wife was, namely, a wife divorced for desertion and the husband not seeing eye to eye with her as to what access should be given to her children, she was entitled to bring the petition at the time she did.
The Court dismissed the petition and found the petitioner entitled to expenses.
Counsel for the Petitioner— Horne,K.C.—MacRobert. Agents— Bell, Bannerman, & Finlay,W.S.
Counsel for the Respondent— Wilson, K.C.—Lord Kinross. Agents— Gillespie & Paterson,W.S.
