A B v. C B and G H [1912] ScotLR 68 (31 October 1912)

A B v. C B and G H [1912] ScotLR 68 (31 October 1912)

G H, as a sisted party, was entitled to a judicial determination on whether adultery was proved against him; the Lord Ordinary erred in not deciding this. The case was remitted for the Lord Ordinary to determine the factual issue and then decide whether to assoilzie or dismiss as appropriate.

Citation
[1912] ScotLR 68
Parties
Pursuer: A B; Defender: C B; Minuting Defender and Reclaimer: G H
Jurisdiction
Scotland
Judgment Date
31 October 1912
Procedural Posture
Divorce Action / Inner House Appeal and Subsequent Remit to Lord Ordinary
Outcome
Decree of divorce against C B affirmed; interlocutor recalled in so far as it declared adultery with G H; case remitted to Lord Ordinary to determine if adultery was proved against G H and to dispose of the action as just. Subsequently, G H assoilzied from the conclusion against him.
Legal Topics
Divorce, Adultery, Procedural Rights of Minuting Defender, Declaratory Relief
Family Law Civil Procedure Divorce Adultery Procedural Rights of Minuting Defender Declaratory Relief

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Parties

A B

Pursuer

C B

Defender

G H

Minuting Defender and Reclaimer

Procedural Posture

Divorce Action / Inner House Appeal and Subsequent Remit to Lord Ordinary

Legal Issues

  1. 1 Whether G H, as minuting defender, was entitled to a judgment on the question of adultery alleged against him
  2. 2 Whether the Court could pronounce absolvitor or dismissal in favour of G H without first determining if adultery was proved against him

Ratio Decidendi

G H, as a sisted party, was entitled to a judicial determination on whether adultery was proved against him; the Lord Ordinary erred in not deciding this. The case was remitted for the Lord Ordinary to determine the factual issue and then decide whether to assoilzie or dismiss as appropriate.

Court Disposition

Decree of divorce against C B affirmed; interlocutor recalled in so far as it declared adultery with G H; case remitted to Lord Ordinary to determine if adultery was proved against G H and to dispose of the action as just. Subsequently, G H assoilzied from the conclusion against him.

Orders

  • Adhere to interlocutor of 13th April 1912 in so far as it finds C B guilty of adultery and grants divorce.
  • Recall interlocutor in so far as it finds and declares in terms of the conclusion of the summons against G H.