Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION X.

Deeds betwixt Husband and Wife during marriage.
Subject_3 SECT. XI.

Contract of Separation, bona gratia.

Forbes
v.
Abernethy

Date: 12 February 1713
Case No. No 363.

A contract of separation bona gratia found to be effectual till revoked, and when revoked all things are revoked in statu quo.

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Alexander Forbes of Blacktoun entered into a contract of separation with Isobel Hacket his spouse, and John Abernethy her son of a first marriage, whereby the man and wife agreed to live separately. Alexander Forbes renounced in favours of the said Isobel Hacket, her heirs, executors and assignees, all right he had or could pretend to the jointure, provided to her by her first husband, and obliged him never to molest her in her person or goods, and thereby renounced his jus mariti as if he had never been married to her: Isobel Hacket renounced and discharged in his favours, all right or claim of right which she had or could pretend to his means or estate, by contract, jure relictæ, or otherways, as if their marriage had never been. Both parties obliged themselves never to quarrel or revoke this deed; and John Abernethy took burden for, and obliged himself, conjunctly and severally with his mother for her performance of the premises. After the parties had thus separated bona gratia, Isobel Hacket agreed with John Abernethy her son to restrict her annuity of 600 merks, which he was obliged to pay her, to 300 merks. Many years after this, Alexander Forbes and Isobel Hacket thought fit to go together again, and pursued John Abernethy for payment of the full 600 merks of annuity for all years and terms bygone notwithstanding the contract and rights following thereupon.

The Lords found the Lady's agreement with Mayen her son during the standing of the contract of separation, restricting her jointure to 300 merks yearly, is binding from the date of that restriction; but found the restriction to fall with the contract, and the Lady and her husband to have right to her former jointure of 600 merks per annum, how soon the separation was by mutual consent past from, and the parties came to be reconciled and cohabit.

Albeit it was alleged for the defender. That man and wife may contract, L. 7. § 6. D. De denoation. inter vir. et uxor. And though true donations were revocable, remuneratory donations, such as this, are not, though the wife should have squandered away what she had received, L. 7. § 2. D. eod. Blacktoun, who disponed his wife's jointure to her, her heirs and assignees, cannot quarrel the same after it is come in the assignee's person who bona fide contracted for onerous causes with the wife, especially considering, that husbands are liable institoria actione for contracts entered into with their wives, while præpositæ negotiis. Laws both divince and human allow of conjugal separation bona gratia, when neither party can live comfortably together, and our custom sustains pactions upon that head, March 14. 1634. Gib contra Milller. No. 331. p. 6116.

In respect it was answered for the pursuers, that such a contract of separation is contra bonos mores et fidem nuptiurum, reprobated by the civil law, L. 8. C. de repudiis. Novel 117. C. 10. & 12. and by our law, February 11. 1634, Drummond against Rollock, No 361. p. 6152.; February 6. 1666, Livingston against Begg, No 362. p. 6152. the renunciation of the jus mariti by the contract, doth still redound upon and accrue to the husband, Stair, Instit. B. 1. T. 4. § 17. Vallange of Possils against M'Dowal of Freugh, No 54. p. 5840, so that we need not run to the civil law, to distinguish betwixt pure and remuneratory donations. The decision betwixt Gib and Miller doth not meet this, for there the woman who had judicially ratified the contract, died without quarrelling the same, and her executor who impugned it, refused to restore what she received.

Fol. Dic. v. 1. p. 413. Forbes, p. 662.