Marriage may be dissolved either by the death of either of the parties, or by divorce. Divorce is a judicial dissolution of the conjugal society, while both the parties are alive, the effect of which is, to leave them at liberty to intermarry with others. By the law of Scotland a divorce may be obtained on the ground either of adultery or of wilful desertion; but neither of these grounds dissolves the marriage ipso jure; and if neither party institutes a process of divorce, the marriage subsists, notwithstanding the adultery or desertion. In the case of adultery, if the injured party continue the matrimonial connexion, after knowledge of the adultery, that is held to be an irrevocable forgiveness of the offence; and an act of adultery so overlooked, cannot afterwards be the foundation of a process for divorce.
Definition source
Bell, William, A Dictionary and Digest of the Law of Scotland, 7th ed. rev. George Ross (Edinburgh: Bell & Bradfute, 1861), s.v. “Divorce.” Public domain.
Legal Subject: Divorce |
| Case | Date | Legal Subject | Abstract |
|---|---|---|---|
| Bell v. King | 1794 | Witness, Aliment, Adultery, Divorce, Mala Fides, Defamation | James Bell, Sheriff-Clerk of Berwickshire, pursued an action of divorce against his spouse Isobel King, alleging she had committed adultery with their lodger Thomas Purves. King denied the charge and sought to lead evidence from Purves himself and from her own mother and siblings, while Bell objected that Scots law rendered both the alleged adulterer and near relations incompetent witnesses for the defender. The litigation involved petitions to alter interlocutors, competing memorials on witness competency, and Bell’s answers to King’s bill of advocation regarding the separation and adultery allegations. |
| George Taylor v. Mrs. Taylor, or Binnie | 1831 | Aliment, Divorce, Adultery, Libel, Proof, Agent | George Taylor, as pursuer in a divorce action against Mrs. Taylor, or Binnie, reclaimed against Lord Newton's interlocutors and requested that the Court recall them. The Court resolved to obtain the opinions of the judges on whether proof of remissio was prejudicial and should precede proof of the adultery. The consulted judges returned answers to the questions posed by the Lords of the First Division regarding the plea of remissio in the divorce action. |
| Gibsone v. Somerville | 1802 | Contract of separation, Divorce, Debtors | Mrs. Gibson (pursuer) was married to Dewar Masterson, and while they were together, due to Mr. Masterton's dissipation and extravagance, they assumed several debts. After three years of marriage, Mrs. Gibson brought an action of divorce against her husband. As a result, there was a contract of separation, which needed the consent of all Mr. Masterton's creditors. When Mr. Masterton died, Mrs. Gibson challenged the contract of separation because the terms on which the agreement was conceded were not only highly prejudiced against her interest, but also fraudulent, on the grounds that the deceased Mr. Masterton has been released from paying his creditors, but she has left without income. John Somerville and Samuel Macknight submitted answers to Gibson’s arguments, for themselves as creditors and for the other creditors of the deceased. |
| Hay Marshall v. Anderson | 1797 | Divorce, Witness, Interlocutor | Thomas Hay Marshall (pursuer) brought an action of divorce against Rose Anderson (defender), his Wife. for adultery. |
| Houston Stewart Nicolson, Esq v. Mrs Stewart Nicolson | 1770 | Adultery, Divorce | Houston Sterwart-Nicolson was married to Mrs. Sterwart-Nicolson in 1764. Mr Nicolson having brought an action of divorce against his wife for adultery, supposedly with William Grahame a employee and servant of Sir William Maxwell of Springkell, brother-in-law of the pusuer. Mrs Nicolson made a declaration of her innocence, and she insisted that the pursuer misled the situation and created artful stories about his adultery. She, as the defender, objected to the charges and questioned the competence of the witness that her husband, Mr. Nicolson, presented because all of them were servants of Sir William Maxwell, pursuer's brother-in-law. |
| Lockhart v. Henderson | 1799 | Divorce, Infidelity, Adultery | Jean Lockhart sought a divorce from James Henderson on grounds of adultery. Henderson counterclaimed that Lockhart had committed adultery. In 1793, the couple reconciled from a previous split over accusations of infidelity. In the new case, Henderson allegedly resumed his adultery, whereas Lockhart denied any extramarital affairs. Lockhart accused Henderson of marrying for her money. The legal proceedings hinged on whether Henderson's claim that Lockhart continued her adulterous activity barred her divorce proceedings. |
| Robertson v. Inner-House Interlocutor | 1797 | Aliment, Divorce, Terce, Marriage, Infeftment, Inhibition | William Henry Ralston, defender in the action brought by Robertson, petitioned the Court to alter an interlocutor issued by Lord Swinton. Based on the single document cataloged for this case. |
