Acutt v Acutt
| Jurisdiction | Scotland |
| Judgment Date | 04 February 1936 |
| Date | 04 February 1936 |
| Docket Number | No. 33.,No. 53. |
| Court | Court of Session (Inner House - First Division) |
1st DIVISION.
Lord Wark.
JurisdictionCourt of SessionScope of jurisdictionAction by wife to reduce decree of divorce obtained in Scottish Courts by husbandHusband domiciled in EnglandDecree of divorce procured by husband giving false evidence on domicileHusband and WifeInternational Law.
A husband obtained decree of divorce against his wife in an undefended action in Scotland. Thereafter, while he was resident in England, his former wife brought an action against him in Scotland for reduction of the decree, on, inter alia, the ground that the Court had had no jurisdiction to entertain the action of divorce, the husband being domiciled in England. At a proof it was established that, in the divorce proceedings, the husband had deliberately misled the Court as to his domicile, and had thereby procured the decree of divorce.
Held (diss. Lord Moncrieff) that, even though the decree of divorce was one which the Court had had no jurisdiction to grant and which had been obtained only through the husband's false evidence, yet the Court could not competently entertain the action to reduce that decree, the defender not being personally subject to its jurisdiction; and action dismissed.
Longworth v. YelvertonUNK, (1868) 7 Macph. 70,followed. Corbidge v. Somerville, 1913 S. C. 858, discussed.
(Reportedante, 1935 S. C. 525.)
In an undefended action of divorce on the ground of desertion brought on 6th December 1933 by Willie Walter Percival Acutt against his wife, Mrs Gertrude Ellen Bartleet or Acutt, the Lord Ordinary (Wark), on 17th March 1934, pronounced decree of divorce.
On 9th November 1934, after Mr Acutt had remarried, Mrs Acutt brought an action against him concluding for reduction of the decree of divorce. In this action, Mr Acutt was described as resident at Weymouth. The action was undefended.
After sundry procedure, the Lord Ordinary (Wark), on 8th March 1935, allowed a proof (vide 1935 S. C. 525).
Proof was thereafter led. The following narrative, taken from the opinion of the Lord Ordinary, sets forth the circumstances of the case and the evidence led at the proof:"In this action Mrs Acutt sues for reduction of a decree of divorce granted to her husband by me on 17th March 1934 on the ground of her desertion. The action of divorce was not defended. The pursuer attacks the decree upon several grounds. The first is that the Court had no jurisdiction to pronounce the decree, in respect that the defender, at the date of the action of divorce, was not domiciled in Scotland. The second ground is that, on the merits, decree was obtained by wilful and fraudulent concealment of material facts. If these had been disclosed to the Court, she maintains, it would have been apparent that she was not in desertion of the pursuer either at the date of the action or at any other time. A third is that she was justified in living apart from her husband on account of his cruelty, and was therefore not in desertion.
"I allowed proof upon the whole averments of the pursuer, but it was not ultimately maintained that she was entitled to prefer the last as a ground of reduction. I therefore need not deal with it further.
"Mr Acutt's domicile of origin was English and he lived in England, except for occasional business visits to Scotland, until 1927. In that year he started in business for himself in Cromarty, taking a lease of a house, part of which he used as a shop in connexion with his business of naval outfitter. The Cromarty business was given up in 1930. He deponed that he had since carried on business, and that at the date of the action he was still carrying on business, in Scotland at Invergordon; that he had recently bought a house in Cromarty; that he was permanently settled in Scotland and had severed all connexion with England, and intended to remain in Scotland; that he wanted to develop his business on the Invergordon side of the Cromarty Firth, and was about to purchase property there. I am satisfied, as the result of the proof which I have now heard, that these statements were false. In fact, he had transferred the whole stock of the business at Invergordon to his eldest son as from 1st December 1931two and a half years before the date of the action. This fact is recorded in his own handwriting in the stock book No. 23 of process; and further proof of it may be found in his letter to his father No. 12 of process, dated 16th October 1933, and in the evidence of his wife and his father. The husband's statement that, prior to the proof in the action of divorce, he had bought a house in Scotland is true, but misleading. It appears from the evidence of the wife that, at the time, he was negotiating for the purchase of a house for his son, where his wife would live with her son. In a letter from his law agents to him, dated 27th March 1934, they note his instructions to take the title of the house in name of the son. So far from having settled in Scotland, it was his intention to return to England as soon as he got his decree of divorce. In the letter [of 16th October 1933] from him to his father he states that, if he fails in his action, he will return south immediately; if successful he will go to Glasgow for six or eight weeks; and when he comes south he is coming for good. Within a month of the decree of divorce he left Scotland and settled in Weymouth. He concealed the fact that he was buying houses in England in 1932, and it appears from the evidence of the witnesses Mrs Graham, Mrs Jamieson and Mrs Piper [acquaintances of the parties while in Cromarty] that he frequently spoke to them of his intention to return to England. He informed Mrs Jamieson that he was waiting in Scotland only for decree of divorce.
"Moreover, it is, I think, clearly proved that, on the merits of the case, Acutt's evidence was equally false and fraudulent. He deponed that he was all along willing and anxious to have his wife back, and had repeatedly so informed her. He stated that he had had only two letters from his wife since 1930, viz., a letter dated 23rd August 1931 and another in September 1931, and that he had written to her frequently thereafter and never received any reply. He added that, during the time the action was pending, he had refrained from writing to her. The pursuer depones that, in September 1933, he wrote to her telling her that his Scottish domicile was very weak, and that, if she would abstain from defending an action of divorce, he would make her an allowance and buy her a house. This letter is not extant, and I should hesitate, upon the wife's evidence alone, to hold this offer proved. But, apart from that, it is in my opinion quite clearly established that the case which Acutt put before me was a false case on the question of desertion. He concealed from the Court the fact that, right up to the date of the action, he was in friendly correspondence with his wife, and that she was willing to start a boarding-house with him in Weymouth. Moreover, I think it is proved by the witnesses Mrs Jamieson and Mrs Graham that he was quite pleased when his wife left him; that he was paying court to Mrs Piper's niece during the period of alleged desertion; and that he had no desire whatever to have his wife back."
On 14th November 1935 the Lord Ordinary, having considered the cause, dismissed the action.
At advising on 4th February 1936,
LORD PRESIDENT (Normand).This is an action for the reduction of a decree of divorce impetrated by wilful and fraudulent evidence both on the question of domicile and on the merits.
On 17th March 1934 Mr Acutt, the defender in the present action, obtained a decree of divorce in an undefended action in the Court of Session. In November 1934 his wife raised the present action. Her husband, the defender in it, was not domiciled in Scotland at any material time according to the pursuer's averment (which the Lord Ordinary has held proved), nor was he resident in Scotland when the present action was raised.
This action also is undefended, and at the outset a question arose whether it would be competent to dispose of the case without proof, or whether the action fell to be dealt with as a consistorial action and therefore one requiring proof of the grounds on which it is based before decree could be granted. The Lord Ordinary reported the case for direction on this question to the First Division.1 It was unanimously held that the action was consistorial, and therefore that proof was necessary. It is clear from their opinions that the ground on which their Lordships proceeded was that the action affected the status of husband and wife and also the status of third parties. Lord Blackburn said2 that the present action is, for that reason, in every respect as consistorial as was the action of divorce itself. Proof accordingly took place and the Lord Ordinary has held that it is established that there was deliberate and fraudulent concealment of facts, which, if disclosed, would have shown that the pursuer in the original action was domiciled in England and therefore that the Court had no jurisdiction, and which would have shown also that, assuming that there had been jurisdiction, there were no grounds for divorce.
But then the objection arose that the defender in the present case is not subject to the jurisdiction of the Court, and therefore that it has no more power to entertain and determine this action than it had to entertain and determine the action of divorce. The Lord Ordinary has given effect to the objection and has therefore dismissed the action, holding that the question is determined by the decision inLongworth v. YelvertonUNK.3 I agree with the Lord Ordinary.
An attempt was made to distinguish the case from Longworth v. YelvertonUNK3 on three grounds: (1) the decree which it is sought to reduce in this action is a decree of divorce; (2) the decree was obtained by fraud; and (3) the process in the action of divorce has not been
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