Gallacher v Gallacher [1928] ScotCS CSIH_3 (14 March 1928)

Gallacher v Gallacher [1928] ScotCS CSIH_3 (14 March 1928)

The pursuer's letter constituted a deliberate and active incitement to his wife to commit adultery, and the subsequent adultery followed closely in time. The natural inference is that the pursuer's instigation contributed to the adultery. The onus was on the pursuer to rebut this presumption, which he failed to do. Therefore, the plea of lenocinium is sustained, barring the pursuer from obtaining a decree of divorce.

Citation
[1928] ScotCS CSIH_3
Parties
Pursuer: Hugh Gallacher; Defender: Annie Gallacher; Co Defender: David White
Jurisdiction
Scotland
Judgment Date
14 March 1928
Procedural Posture
Divorce Action / Appeal (reclaiming Motion) Before the Second Division
Outcome
Appeal refused; decree of divorce denied; defender assoilzied (absolved).
Legal Topics
Divorce, Adultery, Connivance (lenocinium), Public Policy in Matrimonial Causes
Family Law Divorce Adultery Connivance (lenocinium) Public Policy in Matrimonial Causes

Case Brief

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Parties

Hugh Gallacher

Pursuer

Annie Gallacher

Defender

David White

Co Defender

Procedural Posture

Divorce Action / Appeal (reclaiming Motion) Before the Second Division

Legal Issues

  1. 1 Whether the pursuer is disentitled to divorce on grounds of connivance (lenocinium) after inciting his wife to commit adultery
  2. 2 Whether the defender's adultery was caused by the pursuer's invitation

Ratio Decidendi

The pursuer's letter constituted a deliberate and active incitement to his wife to commit adultery, and the subsequent adultery followed closely in time. The natural inference is that the pursuer's instigation contributed to the adultery. The onus was on the pursuer to rebut this presumption, which he failed to do. Therefore, the plea of lenocinium is sustained, barring the pursuer from obtaining a decree of divorce.

Court Disposition

Appeal refused; decree of divorce denied; defender assoilzied (absolved).

Orders

  • Interlocutor of the Lord Ordinary affirmed.
  • Finding that the defender committed adultery but that the pursuer connived at it, barring divorce.