Henderson (Sometime Wilkie) v. Wilkie [1908] ScotLR 451 (20 February 1908)

Henderson (Sometime Wilkie) v. Wilkie [1908] ScotLR 451 (20 February 1908)

Where a marriage is declared null, property entrusted for a specific purpose and not donated or consented to be spent must be restored; the analogy of divorce does not apply, and the pursuer is entitled to repayment.

Citation
[1908] ScotLR 451
Parties
Pursuer: Elizabeth Henderson (Sometime Wilkie); Defender: Wilkie
Jurisdiction
Scotland
Judgment Date
20 February 1908
Procedural Posture
Civil / Appeal (reclaiming Motion)
Outcome
interlocutor recalled; judgment for pursuer
Legal Topics
Nullity of Marriage, Donation Between Spouses, Mutual Purposes, Restitution of Property
Family Law Property Law Nullity of Marriage Donation Between Spouses Mutual Purposes Restitution of Property

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Parties

Elizabeth Henderson (Sometime Wilkie)

Pursuer

Wilkie

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion)

Legal Issues

  1. 1 Whether a spouse can recover a donation made during a void marriage and spent on mutual purposes
  2. 2 Whether the analogy of marriage dissolved by divorce applies to nullity cases
  3. 3 Whether the defender appropriated the pursuer's property without consent

Ratio Decidendi

Where a marriage is declared null, property entrusted for a specific purpose and not donated or consented to be spent must be restored; the analogy of divorce does not apply, and the pursuer is entitled to repayment.

Court Disposition

interlocutor recalled; judgment for pursuer

Orders

  • Defender ordained to pay pursuer £100