Fortington v Lord Kinnaird [1942] ScotCS CSIH_1 (26 March 1942)

Fortington v Lord Kinnaird [1942] ScotCS CSIH_1 (26 March 1942)

The fiction that the guilty spouse is treated as dead upon divorce applies only in questions between the innocent and guilty spouse, not between the innocent spouse and third parties to the marriage contract. Since the annuity was not enjoyed by the guilty spouse and was only payable on his death, the innocent spouse cannot claim it upon divorce. The pursuer's claim fails because the obligation was not forfeited by the guilty spouse and does not fall within the rights enforceable by the innocent spouse upon divorce.

Citation
[1942] ScotCS CSIH_1
Parties
Pursuer: Fortington; Defender: Lord Kinnaird; Defender (for Interest): Trustees named in the antenuptial contract; Defender (for Interest): Pursuer's father
Jurisdiction
Scotland
Judgment Date
26 March 1942
Procedural Posture
Civil (family Law, Patrimonial Consequences of Divorce) / Appeal (reclaiming Motion Before Enlarged Court After Outer House Dismissal)
Outcome
Action dismissed; reclaiming motion refused.
Legal Topics
Antenuptial Contracts, Divorce Consequences, Forfeiture of Matrimonial Provisions, Rights of Innocent Spouse, Obligations of Third Parties in Marriage Contracts
Family Law Trusts and Estates Antenuptial Contracts Divorce Consequences Forfeiture of Matrimonial Provisions Rights of Innocent Spouse Obligations of Third Parties in Marriage Contracts

Case Brief

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Parties

Fortington

Pursuer

Lord Kinnaird

Defender

Trustees named in the antenuptial contract

Defender (for Interest)

Pursuer's father

Defender (for Interest)

Procedural Posture

Civil (family Law, Patrimonial Consequences of Divorce) / Appeal (reclaiming Motion Before Enlarged Court After Outer House Dismissal)

Legal Issues

  1. 1 Whether an innocent spouse, upon divorce, is entitled to enforce against a third party (the guilty spouse's father) an obligation to pay an annuity under an antenuptial contract, where the annuity was not enjoyed by the guilty spouse and was only payable on the spouse's death.

Ratio Decidendi

The fiction that the guilty spouse is treated as dead upon divorce applies only in questions between the innocent and guilty spouse, not between the innocent spouse and third parties to the marriage contract. Since the annuity was not enjoyed by the guilty spouse and was only payable on his death, the innocent spouse cannot claim it upon divorce. The pursuer's claim fails because the obligation was not forfeited by the guilty spouse and does not fall within the rights enforceable by the innocent spouse upon divorce.

Court Disposition

Action dismissed; reclaiming motion refused.

Orders

  • Sustain the defender's first plea in law and dismiss the action.
  • Repel the pursuer's pleas in law.