Bennet Clark v. Bennet Clark [1909] ScotLR 529 (20 February 1909)

Bennet Clark v. Bennet Clark [1909] ScotLR 529 (20 February 1909)

The court held that, although the defender's conduct with Miss Hodgson was indiscreet and open to suspicion, there was no corroborated evidence of familiarity or guilty intention sufficient to prove adultery. The evidence relied on by the pursuer was uncorroborated, contradicted, or explained, and the law requires more than opportunity or suspicion to infer adultery. Accordingly, adultery was not proved.

Citation
[1909] ScotLR 529
Parties
Pursuer: Mrs M. L. Tennent or Bennet Clark, otherwise Clark Tennent; Defender: David Bennet Clark
Jurisdiction
Scotland
Judgment Date
20 February 1909
Procedural Posture
Divorce Action / Appeal (reclaiming Note) After Outer House Judgment
Outcome
Defender assoilzied (absolved); divorce refused.
Legal Topics
Divorce, Adultery, Evidence, Corroboration, Expenses
Family Law Divorce Adultery Evidence Corroboration Expenses

Case Brief

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Parties

Mrs M. L. Tennent or Bennet Clark, otherwise Clark Tennent

Pursuer

David Bennet Clark

Defender

Procedural Posture

Divorce Action / Appeal (reclaiming Note) After Outer House Judgment

Legal Issues

  1. 1 Whether adultery by the defender with Miss Hodgson was proved to the standard required for divorce.
  2. 2 Whether the evidence of opportunity and suspicious circumstances, without corroborated proof of familiarity, is sufficient to infer adultery.

Ratio Decidendi

The court held that, although the defender's conduct with Miss Hodgson was indiscreet and open to suspicion, there was no corroborated evidence of familiarity or guilty intention sufficient to prove adultery. The evidence relied on by the pursuer was uncorroborated, contradicted, or explained, and the law requires more than opportunity or suspicion to infer adultery. Accordingly, adultery was not proved.

Court Disposition

Defender assoilzied (absolved); divorce refused.

Orders

  • Decree of absolvitor granted in favour of defender.
  • Defender awarded one half of his expenses in the Outer House and full expenses in the Inner House.