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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bridges v. Bridges [1910] ScotLR 203 (17 December 1910) URL: http://www.bailii.org/scot/cases/ScotCS/1910/48SLR0203.html Cite as: [1910] SLR 203, [1910] ScotLR 203 |
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Page: 203↓
(Single Bills.)
A husband raised an action of divorce against his wife and she raised a counter action against him. The Lord Ordinary, pronouncing judgment in both actions on the same day, in the action brought by the husband granted decree of divorce against the wife, but in the action brought by the wife assoilzied the husband. The wife reclaimed against the decree which assoilzied the husband, but she allowed the decree of divorce against herself to become final.
Held (with the concurrence of the Second Division) that the marriage having been dissolved by the decree of divorce which had become final, the wife could not proceed further with the action brought by her, and the reclaiming note refused.
Thomas Bridges raised an action of divorce against Margaret Bridges, his wife, and she raised a counter action of divorce against him. The proofs were led on the same day, and on 29th October 1910 the Lord Ordinary (Dewar) pronounced judgment in both actions. In the action by Mr Bridges he granted decree of divorce, but in the counter action by Mrs Bridges he assoilzied the defender.
On 19th November 1910 Mrs Bridges reclaimed against the interlocutor which assoilzied Mr Bridges, and on 23rd November 1910 she moved the Court to send the case to the roll, but meantime the interlocutor divorcing her pronounced in the action by Mr Bridges had become final.
The respondent (defender) objected to the competency of the reclaiming note, and argued — The wife had allowed the decree of divorce to become final, and the marriage had now been dissolved. Therefore since it was impossible for her now to commence a new action of divorce, the mere fact that she had already raised this action before the decree became final, could not make any difference, and it was equally impossible for her to continue this action. The cases of Walker v. Walker, January 27, 1871, 9 Macph. 460, 8 S.L.R. 328; and Brodie v. Brodie, June 11, 1870, 8 Macph. 854, 7 S.L.R. 535, were different from this, because there the decree of divorce had been reclaimed against, and consequently the marriage continued to subsist. Moreover, in both these cases the Court sisted a reclaiming note by the wife against the decree of divorce with the express purpose of preventing the decree being affirmed and the marriage being dissolved before the action at her instance was ripe for judgment. With regard to the pursuer's
Page: 204↓
contention that the question of her access to the children would be foreclosed if the reclaiming note were held to be incompetent, that question was foreclosed in any event, because the question of the custody of the children, which covered questions of access, had been settled by the interlocutor which the pursuer had allowed to become final. Argued for the reclaimer (pursuer)—The competency of the reclaiming note was fixed once and for all at the date when it was lodged, and at that date the decree of divorce had not become final. Accordingly since at that date the marriage was still in subsistence the reclaiming note was competent. In any event, although the marriage was now dissolved there remained the question of access to the children, and also the question of the expenses of the action, and the wife was entitled to reclaim because these questions could only be raised in this process, and their determination depended on the granting or refusal of the divorce.
At advising—
The question raised by the respondent was argued to us as one of competency. I do not think it is a question of competency, and so far as competency is concerned there is no reason why the case should not go to the roll. But as the whole question was argued before us, I see no reason for sending it to the roll, because nothing more can be said, and accordingly I think we can give judgment at once.
The point argued was that it was impossible for us now to deal with the Lord Ordinary's judgment in this case, in respect that it will be impossible for us to reach an opposite conclusion from his Lordship, because there is now no marriage to dissolve. The marriage has already been dissolved by a final decree in the husband's action, and it was argued that, that being so, it is impossible for us in this action to recal the decree of absolvitor of the husband and to pronounce decree against him. I think that that argument must prevail, and this really follows from what was said by the Lord President in the case of Walker v. Walker, 9 Macph. 460, where one action was allowed to catch up the other just in order to avoid the situation which we have here. I think the present case is in exactly the same position as if one of the parties had died. If a spouse raises an action of divorce, and during the pendency of that action the other spouse dies, the proceedings fall, because decree of divorce can no longer be pronounced. Accordingly I am of opinion here that although the question is not strictly one of competency we should refuse the reclaiming note, because really it is impossible for the case to go on.
I wish to add that as we thought the question one of general interest and of difficulty, we consulted the Second Division on the matter, and the Second Division are unanimously of the opinion I have just expressed.
But Mrs Bridges had also raised a counter action of divorce against her husband, and in this also the parties had not merely joined issue before decree in the action at Mr Bridges' instance, but the actions which could not be conjoined were running pari passu.
It is maintained that the moment the decree in the husband's action had become final, the marriage being then dissolved, the wife's action ipso facto fell and could not be proceeded with.
When the case was discussed in the Single Bills I was disposed to think, notwithstanding what was said in the case of Brodie, 8 Macph. 854, that this was not a necessary result of what has happened here.
The parties had, as I have said, joined issue on the counter action on the question whether facts and circumstances exist which require the Court to divorce and separate the husband from the wife and her society, to find and declare that he has forfeited all the rights and privileges of a lawful husband. As certain of these rights and privileges are or may be patrimonial,
Page: 205↓
The Court adhered.
Counsel for Pursuer and Reclaimer — Ingram— Mercer. Agent— J. George Reid, Solicitor.
Counsel for Defender and Respondent — A. R. Brown. Agents— Grant & Gibb, S.S.C.
