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Scottish Court of Session Decisions
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15 March 1900
Such cases as the present are necessarily rare, and there are, therefore, few reported cases which can form direct authorities. The case of Donald differs from this case in this particular, that the wife there did not marry again, but fell into illicit intercourse with another man. The case, therefore, was more unfavourable to the woman than the present one. But the case is an authority on the question whether such a plea of belief of the other spouse's death can be received where it did not rest on reasonable and probable grounds. In the words of the Lord President, the question is whether the wife did, “before holding herself free from the bonds of matrimony, make such inquiries or receive such information as she was entitled to rely on”? I feel quite unable to hold that what the pursuer here states as the grounds of her belief fulfil the requirement thus stated by the Lord President. It comes to no more than this, that someone who had been in America told her that he had heard that her husband was dead, and that he believed it, and that no reply was given to a notice in the Weekly Mail. I adopt the words of the Lord President in that case, which I think apply to this case, that such inquiry was not made as “to put her in possession of warrantable grounds for belief that her husband was dead,” and that is sufficient for the determination of the present case.
I sympathise with the pursuer, who seems to have been straightforward in what she did on discovering the mistake, but I am unable to come to any other conclusion than that which was arrived at by the Lord Ordinary. The case may be a hard one, but to give weight to that consideration in favour of the pursuer would be likely, in my opinion, to be harmful. The matrimonial relation requires to be guarded by firm rules, and the application of these rules, however hardly they may bear in particular cases, is a necessary safeguard of the important social relation which is constituted by marriage.
I must therefore hold that the judgment of the Lord Ordinary cannot, on legal grounds, be impugned.
Court must otherwise have awarded on proof of her (relevant as he thinks)averments of wilful and malicious non-adherence. “The question,” his Lordship says, “is thus raised whether the pursuer's second connection, although begun and ended in good faith, is to be regarded for the purposes of this case as being an adulterous connection.” His opinion is that the question must de plano, and without admitting evidence, be answered in the affirmative. I am, on the contrary, of opinion that a proof ought to be allowed and taken before we pronounce any judgment. Lord Moncreiff in his opinion, which has been communicated to us, says—“Personally I should have preferred to reserve consideration of the objection until the facts were ascertained.” I understand this to mean that in his Lordship's judgment it would be safer, and avoid some, and that very conceivable, risk of a miscarriage of justice, to postpone the consideration and disposal of this objection until the facts are ascertained. This is my opinion also, and leads me, I think unavoidably, to the conclusion that the Lord Ordinary ought not to have disposed of the objection until the facts were ascertained. When they are ascertained there may not even be room for the objection or need to consider it, for the pursuer may fail to prove “wilful and malicious non-adherence” although ever so relevantly averred.
But while I agree with Lord Moncreiff that it is preferable, as being safer against risk of miscarriage of justice, to reserve consideration of the objection until the facts are ascertained, and think this sufficient reason for ordering proof now, I think it my duty to say that in my opinion the pursuer is, as matter of legal right, entitled to be allowed a proof, and that the judgment dismissing her action without evidence on the ground that she is a self-confessed adulteress is wrong, and ought to be recalled.
With respect to the marriage ceremony between the pursuer and her cousin, and their subsequent cohabitation, the Lord Ordinary observes that “she avers circumstances which if proved will (I assume) instruct her good faith in the matter.” I agree, as I think anyone reading the averments will, in this observation. What the Lord Ordinary has I think failed to attach sufficient importance to is that by these averments the buna fide though erroneous belief of the pursuer and her cousin, and indeed of all the defender's relatives, is attributed to the wilful and malicious misconduct of the defender, prolonged over a period of six years and upwards.
I cannot assent to the Lord Ordinary's remark that for two and a-half years before her marriage with her cousin the pursuer “had on her own statement been in a position to obtain a divorce from her husband on the ground of desertion,” and might then have availed herself of the remedy which the law allows if she desired to be free again. I have no ground for forming and acting judicially on an opinion that in 1892, on the expiry of the statutory period of four years, the pursuer was in a position to bring, and possessed of evidence to support, an action of divorce. She was, if her averments are true, left deserted and destitute, except in so far as she could support herself by the labour of her hands. In the end of 1894, when her cousin came to her rescue, and he and all the defender's relations had become honestly convinced of his death, it may have been, and probably was, considered whether an action of divorce for non-adherence was needful or desirable, and whether there was evidence to support it. Had such action been then brought, the pursuer stating “with creditable frankness” that the defender was, as she and all his relations honestly believed, dead, and that the action was to obtain a decree of divorce which would enable her to marry her consin, how would it have been dealt with? I think it not improbable that Lord Pearson would have dismissed it in respect of the creditably frank statement that the pursuer believed that the person called as defender was dead. But suppose he allowed evidence, and that circumstances were proved which produced in his judicial mind the same bona fide belief which the pursuer acknowledged they had produced in her mind, would he have given decree of divorce? I am not surprised that she was not advised to bring the action when honestly believing that the only possible defender was dead.
The pursuer's bona fide belief that the defender was dead was not corrected till towards the end of 1898, when he returned to this country. She raised her action in June 1899, and I have already expressed why I am unable to concur in the Lord Ordinary's censure of her failure to bring it seven years earlier. The defender is now resident in Scotland, and the summons was served on him personally. He has stated no defence, and not hitherto appeared. But should the case be allowed to proceed in the usual way, he may appear at any stage, and state such pleas and lead such evidence as he thinks fit. He has as yet offered no explanation of his desertion of his wife, prolonged over a period of ten years, with such successful concealment of his whereabouts and anything which might suggest his existence as to produce the honest belief in her and all his relations and friends that he was dead. He may at any time give such account as he pleases, good or bad, and the pursuer may call him as a witness, and for aught I or any of us know, prove by his evidence that the honest belief of his wife and relations in his death was induced by his conduct, and intended by himself to be so.
Personally I should have preferred to reserve consideration of the objection until the facts were ascertained. But I cannot say that the Lord Ordinary was not justified in disposing of the case on relevancy; and as the pursuer's counsel frankly admitted that he was not in a position to strengthen the averments on record, we must assume that the pursuer has stated all the facts which she is able to prove.
The question therefore is, whether the pursuer, when she married again, had on her own shewing reasonable grounds for thinking that the defender was dead. I see no reason to doubt that she bona fide believed that he was dead, but that is not enough; it must be shewn that her belief rested on reasonable and probable grounds sufficient to justify such a serious step. Now, when the pursuer's averments are sifted they come to this, that the only foundation for her belief was the unsupported statement of Archibald Campbell in 1894, to the effect that it was generally reported and believed that the defender had been frozen to death. He did not state of his own knowledge that the defender was dead, but merely that he had heard the report and believed it. It is to be observed that the pursuer's belief was not induced by the defender's previous long-continued silence; because, as she says, he had neither corresponded with the pursuer nor let her know of his whereabouts for six years prior to the date of his supposed death, from which she naturally inferred, not that he was dead, but that he had deserted her. Therefore the only ground for the pursuer's belief that the defender was dead when she married again was this report spoken of by Archibald Campbell, and the question is whether she was justified in marrying again on the faith of such a rumour.
If it had been averred and proved that the rumour was intentionally circulated by the defender, or even if it had been averred and proved that the defender was aware of the rumour and aware that his wife believed it, and yet kept silence, I should have been disposed to hold that the defender would have been barred from stating the objection in defence to the pursuer's action. But in the absence of any such averments I am not prepared to hold that a married woman who contracts a second marriage upon such slender grounds, however honestly she may believe that her husband is dead, can escape the consequences of her error. Her bona fides may be a good defence to a prosecution for bigamy, but it will not deprive the husband of his right to refuse to adhere, and if he is not bound to adhere he cannot be divorced for desertion. I therefore think that the Lord Ordinary's interlocutor should be affirmed.
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