Bell v Bell [1940] ScotCS CSIH_2 (16 February 1940)

Bell v Bell [1940] ScotCS CSIH_2 (16 February 1940)

Under the Divorce (Scotland) Act 1938, it is sufficient for the pursuer to aver and prove willingness to adhere during the statutory three-year period of desertion. The Act does not require willingness to adhere beyond that period or up to the date of raising the action. The right to divorce arises at the end of the three-year period, subject to it not being abandoned or discharged by subsequent conduct, such as resumption of cohabitation.

Citation
[1940] ScotCS CSIH_2
Parties
Pursuer: Bell; Defender: Bell
Jurisdiction
Scotland
Judgment Date
16 February 1940
Procedural Posture
Divorce for Desertion / Appeal Before the Whole Court (court of Session, Inner House)
Outcome
Libel held relevant; action remitted for proof.
Legal Topics
Divorce, Desertion, Statutory Interpretation, Willingness to Adhere
Family Law Divorce Desertion Statutory Interpretation Willingness to Adhere

Case Brief

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Parties

Bell

Pursuer

Bell

Defender

Procedural Posture

Divorce for Desertion / Appeal Before the Whole Court (court of Session, Inner House)

Legal Issues

  1. 1 Whether, under the Divorce (Scotland) Act 1938, a pursuer must aver and prove willingness to adhere to the defender beyond the statutory three-year period of desertion and up to the date of raising the action in order to make the action for divorce relevant.

Ratio Decidendi

Under the Divorce (Scotland) Act 1938, it is sufficient for the pursuer to aver and prove willingness to adhere during the statutory three-year period of desertion. The Act does not require willingness to adhere beyond that period or up to the date of raising the action. The right to divorce arises at the end of the three-year period, subject to it not being abandoned or discharged by subsequent conduct, such as resumption of cohabitation.

Court Disposition

Libel held relevant; action remitted for proof.

Orders

  • The pursuer's averments are relevant under the Divorce (Scotland) Act 1938.
  • If the pursuer proves his averments, it is competent for the Court to grant decree of divorce.