M'Callum v. M'Callum

Subject_1 Parent and Child Subject_2 Action of Divorce Subject_3 Interim Custody of Children Subject_4 Conjugal Rights (Scotland) Amendment Act 1861 (24 and 25 Vict. cap. 86), sec. 9. Facts: Section 9 of the Conjugal Rights Act 1861 provides that in any action of separation or divorce the Court may make such interim orders as to it shall seem proper, with respect to the custody of the pupil children of the marriage to which the action relates.

A husband, after raising an action of divorce against his wife on the ground of adultery, presented a petition to the Inner House for the custody of his children pending the result of the action of divorce.

Held that where an action of divorce was in dependence, it was, in general, more expedient that questions as to the interim custody of the children of the parties should be determined by the judge in such action, and petition refused .

This was a petition presented by James M'Callum, quarryman, Pretoria, South Africa, on 21st December 1892, in which the petitioner craved the Court to find him entitled to the custody of the four children of the marriage between him and Alice Carlyle or M'Callum, his wife, the eldest of whom was nine, and the youngest three years of age, and to ordain his wife to deliver the said children to his sister, who resided at North Queensferry.

At the discussion the respondent also produced and founded on letters which she alleged had been written to her by the petitioner from Africa, and which she alleged to be most indecent in their character. Counsel for the petitioner did not admit that said letters had been written by the petitioner.