Scottish Court of Session Decisions

THE LORD PRESIDENT'S OPINION.—[After the narrative quoted supra]—

On the above basis I was asked in the first instance to dismiss the action on the ground that the Scottish Courts had no jurisdiction or that the pursuer's averments on this subject were irrelevant. As if the case were not already sufficiently complicated, the defender further argued in support of his fifth plea in law that, even assuming jurisdiction in this Court, the law applicable for determining the validity of the marriage and the question whether it now falls to be annulled is the law of Poland, the alleged lex domicilii of both parties at the date of the pretended marriage; and that by the law of Poland the pretended marriage cannot now be annulled, the previous marriage of the defender having in 1949 ceased to exist.

It is plain that the case trenches upon a number of interlocking questions of private international law of more than usual difficulty, on some of which the decisions and authoritative pronouncements to which I was referred are incapable of being reconciled. It has been observed with regard to certain of the earlier decisions on the international law applicable to marriage and to actions affecting the married status that the outlook of the Courts very properly changed after 1857, when the English law of divorce was altered—Von Lorang, 1927 S. C. (H. L.) 80, per Lord Haldane and Lord Dunedin. By parity of reasoning I venture to suggest that the notorious happenings which have occurred since 1939 would amply warrant a much more radical change of outlook. To those who have knowledge of the fact that millions of "displaced persons" and "stateless refugees" from Central Europe have in recent years been forced to search for a new home, with or without the aid of U.N.O. and other public or charitable organisations, the classic doctrines of domicile and change of domicile, elaborated against the static background of the mid-nineteenth century, have come to wear an aspect of painful unreality; and a like unreality attaches to the old insistence upon comity and mutual recognition of foreign judgments, pronounced by Courts assumed to possess exclusive jurisdiction, when that mutual recognition and comity are expected to operate across the barrier of the Iron Curtain. It is to be hoped that the recommendations of the Royal Commission on Marriage and Divorce will lead to a legislative solution for the problems created by the judge-made law. Meantime I must do my best with the law as it appears to be.

Fortunately this case does not present one of the difficulties which have recently perplexed the Courts. The ground of nullity on which the action is rested is that this was a bigamous marriage, and its quality in this respect is specifically admitted. Leaving aside for the moment the question of Polish law, it follows that this marriage was in the eyes of Christendom void ab initio, and (subject to the requirement of formal proof in a consistorial case) we may take the case on this footing without arguing in a circle or, as Lord Greene, M.R., put it in De Reneville, [1948] P. 100, at p. 112, without assigning proleptic operation to a decree which may or may not be obtained. The defender has in effect tendered a plea of guilty to the crime of bigamy, for technically it was a crime which he committed in 1940, though it would have been open to him, if prosecuted, to establish in defence reasonable grounds for his alleged belief that his wife was already dead—Hume, vol. i, p. 461; Alison, vol. i, p. 539. We can thus discard the difficulties which arose in many of the cases where the ground of nullity relied upon was one of the supervening causes which render a marriage not void but only voidable, and in which "the substance of the matter" requires the Court arguendo to treat the marriage as a valid and subsisting marriage, no decree of nullity having yet been pronounced—Lord Greene, loc. cit., at p. 111.

This leads me, a little out of turn, to examine the averment of Polish law. I shall assume in favour of the defender that the personal law governing the status of the parties in 1940 was Polish law, in respect that they were both then domiciled in Poland, and that the law which regulates the implications of married status is the personal law of the contracting parties at the date of the marriage. Keeping steadily in view that foreign law is presumed to be the same as Scots law except in so far as may relevantly be averred to the contrary, I turn to the defender's case on this topic as pleaded by him. It is not averred that the law of Poland now admits or ever admitted polygamous marriages. If that had been averred, I do not consider that any rule of international law or comity would require the Scottish Courts in considering a marriage celebrated in Scotland to apply to that marriage characteristics incompatible with the fundamental features of marriage as understood in Christian civilised countries—cf.Fenton v. Livingstone, (1859) 3 Macq. 497. No Scottish Court has ever done so. I am aware that in England polygamous marriages, contracted in a country where polygamy is lawful, between persons at least one of whom was domiciled in that country, have been recognised for certain purposes, I refer to the very guarded reasoning in such cases as Srini Vasan,[1946] P. 67; Baindail, [1946] P. 122; and Kenward,[1951] P. 124, and I note in passing that the modern view has so far been adopted only as a step towards granting a decree of nullity and severing the relationship between the parties, and that the marriages whose implications were examined were only potentially polygamous. It may be that the learned editors of Walton on Husband and Wife, (3rd ed.) p. 3, are right in hazarding the prophecy that the Scottish Courts would be prepared to recognise a polygamous marriage "for some purposes" provided that (a) it is valid by the lex domicilii and the lex loci celebrationis and (b)the man has in fact taken only one wife. But that is not this case. I discard from consideration the practice of the Privy Council, which is not for this purpose to be regarded as a British Court administering English law only.

To return to the defender's pleadings as regards Polish law, all that is said is that "under the said law of Poland the said marriage cannot be annulled, the previous marriage of the defender having ceased to exist," and in the plea in law the phrase is "the said marriage … being now a valid marriage." (The italics are mine.) Applying to this the critical scrutiny which I regard as necessary, I note that it is not said that by Polish law the marriage was valid ab initio. The averment cannot mean more at the highest than that the marriage was invalid by Polish law at the time when it was celebrated in 1940 and until the death of the defender's wife in 1949, and that the Polish Courts will not now annul it, because the impediment created by the subsistence of a prior marriage has now vanished. It is not averred that either pursuer or defender was domiciled in Poland in 1949 or at any time thereafter. If it is to be assumed that the law of Poland, as averred, was in operation in 1940 and that its ratio and effect were to give full retrospective validity to all bigamous marriages upon the cessation of the prior marriage, that is not a rule of foreign law which the Courts of Scotland would be under any duty to recognise, for its substantial effect would be to make every bigamous or polygamous marriage potentially and conditionally valid. If on the other hand the rule only means that in Poland an action to nullify a bigamous marriage must be brought during the subsistence of the prior marriage, that is no more than a detail of the procedural requirements of the foreign forum and does not affect the fundamental implications of the marriage status. As averred, the alleged rule deals with a matter not of substance but of process, not of the right but of the remedy. If it is more, I decline to recognise it.

In the result I consider that no proper averment has been made of foreign law and that this case must be disposed of by the application of Scots law. It is true that the pursuer has not specifically pleaded that this portion of the defences is irrelevant, but the elaborate argument to which I listened sufficiently covered this, amongst many other points, and I should be prepared to allow a plea to be added by the pursuer, in order to clarify the position.

I have dealt with the question of choice of law out of turn, because it is convenient so to do and because this is one of those cases presenting so many facets that it is not easy to know at which end to begin. I now turn to the straight question of jurisdiction uncomplicated by questions of foreign law, confining my attention to the crave for declarator of nullity. The pursuer supported the jurisdiction of this Court upon several grounds: (1) because Scotland was the locus celebrationis of the marriage sought to be reduced; (2) because both parties were domiciled in Scotland (a) in 1940, when the marriage was celebrated, or (b) in 1953, when the action was instituted, or (c) at both dates; (3) because the pursuer was domiciled in Scotland in 1940 or in 1953; (4) because jurisdiction should be assumed ex necessitate; (5) because Scottish jurisdiction arises under the Matrimonial Causes (War Marriages) Act, 1944, section 2; and (6) because, jurisdiction arises under the Law Reform (Miscellaneous Provisions) Act, 1949, section 2. With the exception of grounds (1) and (4), all these grounds of action (if relevantly averred) would involve a preliminary proof into domicile or "ordinary residence" and, in the end of the day, a difficult decision on the application of the rules of domicile to a very unusual situation. I may observe that I am unable to see what bearing the defender's domicile has, for by admission he was never the husband of the pursuer and cannot impart his domicile to her. Incidentally it seems to me quite probable on the averments that he is now domiciled in France, if it be the case that his business is in France and that he has lived and worked there with his children (and at times with the pursuer) for a matter of six or seven years. If it is possible to sidetrack all the permutations and combinations of the grounds of jurisdiction dependent on domicile, it is most desirable to do so, if only to obviate delay and expense; and I therefore turn to grounds (1) and (4).

There is a long series of decisions, both Scottish and English, beginning with Simonin v. Mallac, (1860) 2 Sw. & Tr. 67, in which Scottish and English Courts have assumed jurisdiction to annul a void marriage which had been celebrated in Scotland or England respectively, irrespective of the domicile or residence of the parties, or at any rate of the respondent. To avoid repetition I cannot do better than refer to Lord Jamieson's analysis of the chief decisions in his opinion in MacDougall v. Chitnavis, 1937 S. C. 390, at pp. 393 ff. The competency (though not necessarily the exclusive competency) of the forum loci celebrationis has been affirmed by all the leading writers on the subject, including Dicey, Westlake, Foote, Duncan and Dykes and Cheshire, who in the 1952 edition of his standard work on Private International Law states the same proposition without qualification (p. 346). It is true that in Von Lorang,1927 S. C. (H. L.) 80, there are certain dicta, notably in the opinion of Lord Phillimore, which suggest a different solution where both parties are subject to the same personal law, whether that law falls to be discovered by reference to domicile or to nationality. It is also true that in MacDougall Lord President Normand thought that the whole question ought to be more fully considered, but he did not carry his misgivings beyond the expression of a doubt. Later English decisions, culminating in De Reneville, [1948] P. 100, and the discussion in Cheshire, Private International Law, (4th ed.) pp. 342 ff., rather suggest that the alternative solution adumbrated by the learned judges who have indicated doubts may create a new difficulty for every difficulty overcome. Sitting in the Outer House I am happily absolved from the task of carrying the matter any further by pursuing the doubts, for the long tract of high authority amply justifies and indeed requires me, so long as MacDougall remains on our books, to accept the jurisdiction of the forum loci celebrationis in such a case as the present, and I so hold. I would only add that I feel the force of one point taken by the classic writers on the subject (notably Westlake, (5th ed.) p. 98) but latterly overlooked, that, if parties come to this country to celebrate a marriage which is void, they have, deliberately or unintentionally, vitiated the national vital statistics, and the Courts of this country have an interest to correct the civil register.

For these reasons I reject the plea of no jurisdiction, so far as relates to annulment of this marriage. No separate argument was addressed to me on the jurisdiction of this Court to deal with custody of the children, probably because the point was lost sight of in the intricacies of the main argument and possibly because the question of custody is better reserved until the validity or invalidity of the marriage has been formally disposed of. I may say, however, that, whatever the position as regards the declarator of nullity or the domicile of the two parties, the fact that the two children have de facto been resident in France with their father for six or seven years and are still there seems to me to raise a question of the expediency of the Scottish Courts' pronouncing a decree on custody, assuming they have jurisdiction to do so, in view of the obvious difficulties which would inevitably arise in the enforcement of any such order. This I reserve.

While the views already expressed suffice for the disposal of the immediate questions affecting nullity, it is desirable, lest this case is carried further, that I should also deal briefly with the point taken as regards jurisdiction under the Act of 1949. The defender's argument was rested on Hopkins, [1951] P. 116, in which it was held that a wife who had spent five months in Canada and thirty-one months in England out of the material three years had not been "ordinarily resident" in England for three years. I think that that case is distinguishable in respect that during the five months in question the wife had joined her husband in Canada and become temporarily reconciled with him, thereby, as Pilcher, J., observes at p. 123, condoning and wiping out his previous matrimonial offences which were alleged to amount to cruelty. It is easy to understand why such a period of resumed cohabitation in a different country should have been treated as a fatal interruption of the running of the three years. But in this case it appears from the pursuer's averments that her recent visits to France were dictated by no such intention, but were forced upon her by the law affecting aliens and doubtless by a desire to visit her children from time to time. Her averments are not very specific, but in my view they will suffice; and, if I had not found a sufficient ground of jurisdiction in the forum loci celebrationis, I should have allowed her a preliminary proof on "ordinary residence" within the meaning of the Act.

I shall only add that I feel myself precluded by the opinions in Acutt, 1936 S. C. 386, and Mangrulkar, 1939 S. C. 239, from affirming that jurisdiction ex necessitate is recognised by the Scottish Courts. Nevertheless I venture to question whether the pre-war views carry much weight in the fundamentally changed political situation of the present day, and I desire to associate myself with the reservation expressed by Lord Moncrieff in Mangrulkar as to whether or not in an appropriate case the Scottish Courts ought not to assume such a jurisdiction. Upon one view of the present case, it would be such an appropriate case.

If the pursuer proposes to add a plea attacking the relevancy of the averments in support of the defender's fifth plea, I shall allow her to do so and sustain that added plea. I shall repel the first and fifth pleas for the defender and allow a proof of the pursuer's averments in support of her first and second pleas, meantime reserving all questions affecting the pursuer's third plea and the defender's third plea [the pleas in regard to custody]. I grant leave to reclaim.