Scottish Court of Session Decisions

At advising on 23rd February 1945 (when Lord Carmont was present, and Lord Russell and Lord Mackintosh were absent),—

LORD PRESIDENT (Normand).—The Lord Ordinary has reported this case in order to obtain a ruling whether the impotent spouse has, equally with the other spouse, the right to have the marriage declared null on the ground of his own impotency.

This question has not been decided in any reported case in our Courts. This is not perhaps surprising, because actions of nullity of marriage on the ground of impotency are rare, and it may be supposed that in most cases the potent spouse is willing to take proceedings.

The question is not dealt with in our institutional authorities except in Bell's Principles (section 1524). There it is said that "incapacity of conjugal duties is a ground on which marriage may be declared void, at the instance of either of the parties, but is not in itself a nullity pleadable by others." The comment of the Lord Ordinary in his report is that this passage may be read as meaning no more than that either spouse, being potent, may take the plea against the other spouse, but that no party other than one of the spouses can raise it. In my view, however, the learned editor's footnote gives the true interpretation, saying "the text here appears to recognise the competency of a challenge of the marriage by the impotent spouse himself. Lord fraser in some passages restricts the remedy to ‘the aggrieved spouse’; but there seems to the neither reason nor authority for laying down such an absolute rule" In my opinion, therefore, the pursuer is entitled to claim that the great authority of Bell supports the competency of the action. Lord Fraser in his treatise on Husband and Wife emphatically excludes the right of the impotent spouse to sue. Thus he says (2nd ed., pp. 80-81):—

"Impotency on the part either of the man or the woman is an impediment to marriage, and the marriage may be declared null from the beginning at the instance of the potent spouse, but not at the instance of the impotent, nor at the instance of any third person."

In a footnote he cites passages from Stair (I, iv, 6) and Erskine (I, vi, 7), but they do not support the

proposition that the impotent spouse cannot sue. Lord Fraser also says (pp. 83-84):—

"The fact that this plea of impotency, as a means of voiding a marriage, cannot be stated by any other than the spouse aggrieved, proves that impotency is not a bar to the constitution of marriage, though it is a means of annulling it. Of all the theories on the subject, therefore, that one seems most consistent with principle which holds that the want of consummation, arising from impotency, rather invalidates by non-performance a marriage that was otherwise complete, than makes it a nullity from the beginning by any defect in the marriage itself."

This passage adds nothing material to the passage first cited from Fraser, and the inferences which he draws from the proposition that the plea "cannot be stated by any other than the aggrieved spouse" can equally be drawn from the proposition that the plea can only be stated by one or other of the spouses. Nor can any solution of the question whether the impotent spouse can sue be found in the distinction between void and voidable marriage. It has now been decided (S. G. v. W. G. ) that a marriage, where one of the spouses is impotent, is voidable. But whether it is void or voidable, the question whether the impotent spouse has a right of action remains precisely the same. I therefore forbear from examining Lord Fraser's observations upon the distinction between void and voidable marriages in relation to impotency. In Professor Walton's treatise on Husband and Wife, edited by the late Lord Wark, it is said (p. 3):—

"Physical incapacity for sexual intercourse is a ground for annulling marriage, at the instance of the potent spouse"

(and for this the passages in Stair and Erskine on which Lord Fraser relied are again cited). "There is no authority in Scotland for the view that the impotent spouse can crave declarator on the ground of his or her own incapacity." The passage in Bell's Principles is not referred to, and appears to have been overlooked.

I turn now to the judicial dicta which bear on the question. Lord President Clyde in Von Lorang's case (at p. 616) said that "actions founded on impotency…are only competent between the spouses, and even then only at the instance of the spouse aggrieved—see the Scottish authorities collected in Fraser on Husband and Wife, vol. i, pp. 98-100." This observation was obiter, and an examination of the passages in Fraser shows that, whereas he cites ample authority for the proposition that third parties cannot sue for nullity of a marriage on the ground of the impotency of one of the spouses, he cites none which supports the proposition that the impotent spouse cannot sue and ends by saying "no case on the subject has been observed in the records of the Scottish Courts." Again it is to be observed that in Von Lorang's case Lord President Clyde was concerned with the distinction between actions of nullity based on incapacity and actions of nullity based on non-compliance with the requirements of the lex loci contractus, and to point that distinction it is sufficient to say

that the former class of action is not open to third parties whereas the latter is. In L. v. L. (at p. 481) Lord President Clyde repeats what he had said in Von Lorang'scase, but adds nothing to it, and again his observations are obiter. It may be noted that what was decided in L. v. L. was that a potent pursuer was barred personali exceptione from founding on the defender's impotency in respect that she entered into the marriage in knowledge of it, and that the decision is in conflict with the canon law. The observations of Lord President Dunedin in A B v. C D (at p. 606), repeated by him in G. v. G. (at p. 44), which are referred to by the Lord Ordinary in his report, while asserting as indisputable the title of the potent spouse, cannot, in my opinion, be fairly read as impliedly negativing the title of the impotent spouse, and I therefore pass them by. In S. G. v. W. G. the question now in issue was treated as open, but Lord Murray, after a careful review of the authorities, says (at p.735):—ldquo;In this state of the authorities I am not satisfied that it can be affirmed that in no case is it competent for the spouse who is incapax to maintain a suit for nullity. The law on the matter is ultimately rested on public policy, although other considerations no doubt enter. But, so far as public policy is concerned, I do not see why it should favour restriction of the remedy in all cases to the potent spouse; for public policy does not favour the maintaining of the marriage bond where one of the essential conditions of the bond is not capable of fulfilment. The potent spouse may perhaps be willing to waive his or her right to annul the marriage, but this personal waiver should not override public policy. In my opinion it lies upon those who affirm that there is such a limitation of remedy to point to some authority or decision in support of this view." The Lord Ordinary's report deals with this opinion of Lord Murray, and makes what I respectfully think a sound criticism that Lord Murray read more into a passage in Hume on Crimes (i, 456) than is warranted by the text. But apart from that criticism I agree with Lord Murray's review of the authorities.

The opinions of Lord President Clyde and Lord Murray are entitled to the greatest respect. But it may fairly be said that the Lord President, in the two opinions cited, touched merely incidentally on the problem and accepted for his purposes the law stated by Lord Fraser. Lord Murray, on the other hand, addressed himself directly to the question after consideration of the authorities. He referred to an Irish case and to an English case as illustrating the law of England. I agree with his comment on these two cases (A. v. A. and G. v. G. ). Nevertheless these cases show that a suit at the instance of the impotent spouse is not incompetent, and the English case illustrates how inequitable the contrary view would be. For in that case the

impotence resulted from the physical peculiarities of both spouses, so that each was impotent quoad the other, but each might have been potent if married to another party. Lord Murray also refers to the canon law, which allows the remedy to either spouse, and again I agree with his comment that the canon law, while not of binding authority, affords a guide and will receive due weight in our law if it appears to be secundum bonum et oequum. The case of L. v. L., however, is a reminder of the limitations on the application of the canon law.

In principle any person who has a title and interest in the subject matter of an action is a competent pursuer, and it is a general rule of our law that title rests upon interest. There are exceptions to this general rule, but I know of none which bears relevantly on the present question. Taking the general rule as a useful test, it can hardly be questioned that the impotent spouse has an equal interest with the potent spouse in a question which vitally affects his or status. The bond of a marriage which cannot be consummated, it may be added, can be as irksome and humiliating to the impotent as to the other spouse. If, therefore, the impotent spouse is to be denied the remedy, it is necessary to enquire what is the supposed ground for this denial. Lord Fraser speaks of the potent spouse as the party aggrieved. But, with respect, both alike are aggrieved; and to treat the potent spouse as alone aggrieved is to imply that the impotent spouse is in some sense a defaulter, as though he or she had failed to implement a contract and was debarred from founding on his or her default. The condition of impotency which is a ground of nullity is not voluntary; and the voluntary refusal to have intercourse, though it may be dealt with as desertion, is not a ground for an action of nullity. Where the incapacity results from a physical or temperamental condition, for which the sufferer is not responsible, he cannot be debarred from the remedy on the ground that he has defaulted in his obligations. There may, of course, be circumstances which will bar the potent spouse. If, for example, he or she entered into marriage knowing the defect, the other spouse would indeed be entitled to complain, and to plead the suppressio veri in bar of the action. But the report in the present case does not mention any facts suggestive of a plea of personal bar, and it is not necessary to consider further what circumstances would properly give rise to it. The only other ground for refusing the remedy to the impotent spouse that has been put forward is that it is contrary to public policy that the remedy should be open to anyone but the potent spouse. But I cannot see any reason for thinking that the public interest is injured by allowing the impotent spouse an equal right to sue, and on this I agree entirely with the opinion of Lord Murray.

To sum up, I am of opinion that the impotent spouse has an obvious title and interest to sue; that his right to sue is supported by the

authority of Bell; and that we can accept in this matter the guidance of the canon law in respect that it accords with equity, and that no public right or interest is imperilled.

I therefore propose that we should instruct the Lord Ordinary that the instance is good, and that the action should be allowed to proceed.

LORD MONCRIEFF .—after a comprehensive survey of the authorities such as they are, but without the elucidation of any principle which should be apt to determine the question, it is stated by the Lord Ordinary at the conclusion of his report that, but for the express reservation of the point by all the learned judges who took part in the decision of the recent case of S. G. v. W. G., he would have dismissed the action as "incompetent." It is therefore necessary in the first place to examine the authorities, in order to ascertain whether the question is still open to be determined on principle. In any case it is the relevancy of the averments rather than the competency of the action which would appear to require consideration.

In my opinion, and this was the opinion of the court which decided the case of S.G. v. W. G., the authorities are still entirely inconclusive. I do not find that the opinion of Lord Fraser (see Husband and Wife, p. 98), which is adverse to the pursuer, is supported by the two authorities upon which he professes to found it. On the other hand the passage from Bell's Principles, and this, of course, is institutional authority, may be read more easily, as it was read by Lord Murray in S. G. v. W. G., as supporting a directly contrary opinion. Walton, at p. 3 of his second edition, merely repeats what is said by Lord Fraser, under reference only to the same authorities. Lord President Clyde appears to rely only on Lord Fraser for the support (when dealing with a question which was not argued in the cases of Von Lorang and of G. v. G. ) of his merely incidental observations against such a title as is now asserted by the pursuer. I do not find that Lord Dunedin's recognition of the title of the spouse who is not impotent is pregnant to affirm that the impotent spouse has no title. The reference in my report in L. v. L. to "the privative title of the aggrieved spouse to state the plea" was not an expression of my own opinion, but was a summary of the treatment of the subject in a particular passage by Lord Fraser.

The authorities upon which the pursuer's title may be supported; although again not yet conclusive, in my opinion are not only more determinate but are such as should outweigh what, upon the above analysis, seems to be little more than a succession of assents to an unsupported ipse dixit of Lord Fraser. It is difficult to read the passage in section 1524 of Bell's Principles without recognising that, had this lucid writer regarded the title as one which could not be

asserted by the impotent spouse, he would have described the instance as open only to "the other spouse" in place of recognising it as open to "either spouse." The decision by the Court of Appeal in England in the case of G. v. G. is directly in point and is unambiguous. I remain of the opinion which I expressed in my report in L. v. L. that the consistorial law of Scotland should not consult English decisions. In cases in which the question to be determined is, however, a broad humanitarian question which is independent of proper consistorial law, I think that our Courts are entitled, and may do well, to accept guidance from what has been decided by learned judges in England. The canon law (as now formulated in the Codex Canonici Juris of 1917) merely enacts in Canon 1068 that the impotency of either spouse "by the very law of nature" annuls a marriage. By Canon 1971, however, a title to take action is subsequently conferred (and so conferred only) upon (1) the spouses, without distinction between them, and (2) the diocesan procurator as representing the ecclesiastical authorities. The title of the spouses will only be sustained "nisi ipsi fuerint impedimenti causa"; but this has been interpreted by an eminent canonist as imposing a disqualification in respect of voluntary malicious action and not of innocent misfortune. See Augustine's Commentary. (St Louis and London, 1919) vol. 5, p. 418. The title of the pursuer in such a case as this would thus be sustained by the canon law.

Even if I had regarded the decision as turning only on a balance of the authorities, I should accordingly have been prepared to sustain the pursuer's title to raise the action. In the absence of decided cases and in view of the silence of the other institutional writers, the authority of Bell is indisputably of the greatest weight. Standing alone, the single passage cited from the Principles would, I do not question, prevail against the opinion of Lord Fraser; and it may be noted that my construction of the passage has the assent (while the passage as so construed has the approval) of the learned editor the ninth edition of the Principles. But Bell's authority does not stand alone. It is supported not only by an express decision of the Court of Appeal, but also by the principles enunciated in the canon law and by the practice in operation under that system. As regards the extent and limits of the recognition of the canon law by the law of Scotland, I refer to the authorities (including the authority of Lord Fraser) which are cited in my report to the Court in L. v. L., together with the opinion of Lord Murray in the subsequent case of S. G. v. W. G., and the opinion of Lord Skerrington (which is adopted by Lord Johnston) in Stein v. Stein, at p. 911. The title of the pursuer is thus, as I find, supported by authority in Scotland, in England and even Urbe et Orbi; and, if only as so supported, ought to be sustained.

Even in the absence of authority, however, and determining the

question only upon principle, I should have arrived at a similar decision. Whereas marriage is constituted in Scotland by a contract following upon an exchange of consent, the consent so exchanges is for a joint entry upon a status which envisages a physical relation. Before such a consent can be given, it is manifest that the consenting party must have all the faculties required for giving it. It is recognised, no doubt, in our law on less than by the canon law of which it is a maxim, that consensus non concubitus facit matrimonium. None the less, the required consent is not passed by a bare exchange of words of consent; but, from the very necessity of the legal act which is contemplated, requires not only the mental capacity which all legal acts require, but the physical faculty which, whether exercised or not exercised at the discretion of the spouses, is required by law to qualify legal consent for marriage. See Fraser, Husband and Wife, p. 83. If there be, in fact though latent, a defect of physical faculty, the ostensible marriage will, of course, endure for all practical purposes until after discovery the marriage is avoided; but this is in like manner exactly true in cases of defect of mental capacity.

Such a consequence (while it is sufficient to protect "in solatium vitae" what Erskine styles (Inst. I, vi, 7) perpetual companions "in the way of" marriage) thus affords no implication that the marriage was valid till annulled. Nor is any such interim validity affirmed (unless, indeed, this be suggested by the Lord Justice-Clerk in S. G. v. W. G., at p. 732) by the recent application to such marriages of the description which classifies them as "voidable not void." Unless this description be taken as affirming validity ad interim (see per Lord Kinnear in Smyth v. Muir, at p. 89), the terminology, unless by some cryptic misapplication of well known words, does not readily suggest a possible interpretation. Yet interim validity (unless as above noted) is nowhere suggested; as it is agreed on all hands that such a marriage, once it has been avoided, exactly as in the case of other nullities upon discovery, is void ab initio. See Bankt. I, v, 27, Ersk. I, vi, 7, and Stair, I, iv, 6. See also Fraser, Husband and Wife, pp. 49 and 50. An explanation of the distinction does not immediately suggest itself. Such an explanation, with a recognition of what I can only style a cryptic misuse of the words, is however given by Lord Fraser in the passage last cited from p. 50. In defiance of its terms it there appears that the distinction must be understood as merely affirming that, whereas such a marriage is ab initio a nullity exactly as are other nullities, an action at law to declare this particular exception is subject to special limitations of the right to raise the action and, in cases where there is separation of judicatories, can only be brought before a consistorial court. Although the distinction is re-affirmed in S. G. v. W. G., I do not find that further light is thrown upon it; and can only suppose that Lord Fraser's suggestion must be accepted. As so interpreted the description of such a marriage as

"voidable not void" operates only for procedural purposes, and leaves the marriage in point of substance (as in other cases of defect of consent) ab initio null.

But whether or not such a marriage be regarded as valid until it be avoided, I fail to see that either such conclusion throws light upon the present question. Be the marriage valid ad interim or void ab initio, the spouse who is not impotent has an indisputable title to conclude for decree declaring it void. I merely fail to see how any interim validity of such a marriage should disentitle the spouse who is impotent from asserting a similar right.

So far as the proposition that such a marriage is "voidable not void" has been utilised as a reason for limiting the right of action in such cases, and for conferring this right upon the spouses only to the exclusion of all third parties, the proposition, be it true or be it false, has only served a salutary purpose. But for this purpose, while it may have been so applied, I cannot see that any such proposition was required. The purpose can be attained, as it is attained in the canon law, by a more direct and less bewildering road: by the recognition of the nullity of the marriage on the one hand, while on the other hand imposing a limitation upon the title to take action at law. I find no inconsistency between the recognition by law of an initial nullity of marriage, and an imposition by law of the proper reticence which should be insisted on in order to screen from uninformed general enquiry what can be known only to the spouses to be other than the marriage bed.

Whether the pursuer's marriage be regarded upon his averments as voidable or void, using these words in the sense in which they have been applied, his challenge is of a marriage which, unless for purposes of procedure, is in law ab initio null. As one of the spouses he makes no trespass upon sanctioned reticence when he makes that challenge. As the impotent spouse he may have suffered even more than his more fortunate partner from the endurance of that merely ostensible marriage. He has suffered in like manner as a victim and not as a delinquent. As such a victim he had, in my opinion, whether the decision be guided by principle or by authority, an unanswerable right to claim the relief which law impartially should afford to either victim of a marriage which ab initio is null.

As regards the procedure to be followed in cases in which the Lord Ordinary makes a report to the Court, it would appear that there has been some irregularity in practice. Although the question was overlooked, and the Lord Ordinary was invited to sit with the Court in this case at the debate, I have no difficulty as to the proper practice. The error was afterwards corrected, and the Lord Ordinary was not invited to be present at the advising. It seems inexplicable that the Lord Ordinary should on occasion have been asked to guide the tribunal to which he himself had applied for guidance. If the Lord Ordinary be prepared himself to decide the question, he, of course, can always do so.

LORD CARMONT , who was absent at the hearing, delivered no opinion.

LORD RUSSELL (who was absent at the advising, and whose opinion was read by the Lord President).—I have had the privilege of considering the opinion which has just been delivered by your Lordship in the chair, and I desire to express my complete agreement with it.