Balshaw v Balshaw
| Jurisdiction | Scotland |
| Judgment Date | 18 November 1966 |
| Date | 18 November 1966 |
| Docket Number | No. 9. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Kissen.
International LawJurisdictionDeclarator of nullity of marriage sought by manMan domiciled in ScotlandWoman domiciled in England if marriage voidMarriage celebrated in EnglandWhether jurisdiction in Court of Session.
It is settled in the law of Scotland that the court of the domicile of the man has jurisdiction to entertain an action of declarator of nullity of marriage, whether the man is the pursuer or the defender, and whether or not the parties have a common domicile.
So held in sustaining the jurisdiction of the Court of Session in an action of declarator of nullity brought by the man on the ground of the woman's prior subsisting marriage or, alternatively, her failure to give true conjugal consent, in which it was common ground that both parties were originally domiciled in England; that the marriage was celebrated in England; and that the woman had all along resided in England and was domiciled there if there was no common domicile; and in which the man averred, but the woman did not admit, that he had acquired a domicile of choice in Scotland.
JurisdictionCourt of SessionForum conveniensDeclarator of nullity of marriageAction by man against woman and childrenWoman averring that action in England could also determine children's legitimacy and her own entitlement to alimony even if marriage held voidWhether Court of Session forum non conveniens.
Husband and WifeMan seeking declarator of nullity of marriage on ground of no true conjugal consentAverment of want of consent on part of one party onlyRelevancy.
In an action of declarator of nullity brought by the man against the woman and the children of the marriage, on the ground of the woman's prior subsisting marriage or, alternatively, of her failure to give true conjugal consent, the woman, who alone defended the action, contended (1) that the Court of Session was forum non conveniens, in respect that, if the action was brought in England, as she averred it could be, the children could avail themselves of it to have their legitimacy declared and she herself might be awarded alimony even if the marriage were held void; and (2) that the case as pled against her on the alternative ground was irrelevant, in respect that averments that only one party to the marriage had not given true conjugal consent in entering into it were insufficient to entitle the pursuer to proof, and that, while he averred that she did not know at the time of the second marriage whether her first husband was dead or not and that she had intended only to go through a pretended form of marriage in order to give her child a name, he did not aver that he had not given true consent. The Lord Ordinary having repelled the plea of forum non conveniens and, quoad ultra, allowed a proof before answer,
Held, in affirming his judgment, (1) that no sufficient reason had been shown for interfering with his exercise of his discretion in regard to the plea of forum non conveniens;and (2) that the averments in question might be relevant to support the case that the defender had intended only to enter into a bigamous union for her own purposes, and so could be dealt with only after proof.
Percy James Meteyard Balshaw brought an action against (first) Mrs Mary M'Farlane or Kelly or Balshaw, (second) Mrs Edith Mary Meteyard Balshaw or O'Brien and (third) Mary Balshaw (the second and third defenders being the children of the pursuer and the first defender), in which he concluded for declarator "that a pretended marriage between the pursuer and first defender at Fylde, Blackpool, Lancashire, on 30th July 1931 is null (1) on the ground that the first defender was at the time of the pretended marriage already married; (2) or, alternatively, on the ground that the first defender did not give true and proper conjugal consent and that the ceremony took place without proper conjugal consent having been given on the part of the first defender." The action, the summons in which was signeted on 8th October 1964, was defended only by the first defender.
The parties averred:"(Cond. 1) On or about 30th July 1931 the pursuer and first defender went through a form of marriage at Fylde, Blackpool, Lancashire. At said time the first defender asserted that she was a spinster. A certified copy of the appropriate entry in the Register of Marriages is produced. There were two children born of the union, Edith Mary Meteyard (sic) Balshaw, who was born at Blackpool on 22nd September 1930, and Mary Balshaw, who was born at Penworthan, near Preston, Lancashire, in or about November 1933. The said children are the second and third defenders. The pursuer was born in England of English parents. He came to Scotland in 1945 and has since resided in Scotland. He owns property in Scotland and intends to reside permanently in Scotland. He has abandoned his domicile of origin and prior to the raising of the present action he had acquired a domicile of choice in Scotland. He is a domiciled Scotsman. With reference to the first defender's averments in answer, not known and not admitted that the said children reside at the addresses stated by the first defender. Explained and averred that the pursuer took no part in either the registration of the birth of, or the baptism of, the child Edith Mary Meteyard Balshaw. All the information connected therewith was provided by the first defender. Quoad ultra the first defender's averments in answer are denied, except in so far as coinciding herewith. (Ans. 1) Admitted that the pursuer and first defender went through a form of marriage on or about 30th July 1931. Said certified copy entry is referred to for its terms. Admitted that the said two children are the children of the marriage. The said child Edith resides at 1 Burnham Road, Preston. The said child Mary resides at 11 Whitmore Place, Preston. Relative copy certificate of baptism of the said child Edith Mary Balshaw is produced herewith and referred to for its terms. Explained and averred that the pursuer provided the information on the basis of which the entry in the appropriate Register was made. Quoad ultra not known and not admitted. Explained and averred that the said marriage is valid and subsisting. Esto said marriage is null (which is denied), the first defender being a domiciled English-woman and the said marriage having been celebrated in England, the Scottish courts have no jurisdiction to entertain the present action. (Cond. 2) Unknown to the pursuer at the time of the said pretended marriage the first defender had previously married Peter Kelly at Whitehaven, Cumberland, on 21st April 1921 The pursuer has no knowledge of the present whereabouts of the said Peter Kelly. The pursuer avers that the said Peter Kelly was not dead on 30th July 1931 and that his marriage to the first defender had not been dissolved. With reference to the first defender's averments in answer the circumstances under which the said Peter Kelly left the first defender and any steps the first defender or her father may have taken to attempt to obtain maintenance are not known and not admitted. Not known and not admitted that she has had no communication from him. The nature and extent of any inquiries she has made are not known and not admitted. Quoad ultra the first defender's averments in answer in so far as not coinciding herewith are denied. The first defender is called on to specify the newspaper in which she alleges the said list appeared. It is explained and averred that shortly before the parties separated, as hereinafter condescended upon, the first defender told the pursuer that she had been informed by a friend that her husband had been killed. (Ans. 2) Admitted that the first defender was married to Peter Kelly at Whitehaven, Cumberland, on or about 21st April 1921 Admitted that the pursuer has no knowledge of the present whereabouts of the said Peter Kelly. Quoad ultra denied. Explained and averred that in or about the summer of 1923 the said Peter Kelly left the first defender with the express intention of finding work in the coal mines at Barnsley and sending for the first defender when he was established there. At said time the relationship between the first defender and the said Peter Kelly was a happy one and the first defender had no reason to believe that he would not send for her. Since then the first defender has not seen the said Peter Kelly. He failed to maintain her and in or about the end of 1923 her father instituted proceedings for maintenance on her behalf against the said Peter Kelly. An order against him was granted in her favour in the Magistrates' Court at Whitehaven on 5th November 1923. Thereafter the said Court made further orders on 4th December 1924 and 12th February 1925 Since then neither the first defender nor anyone she knows has had any communication from the said Peter Kelly. She made inquiries of his sister Eileen Kelly, residing in County Longford, Eire, and the police at Barnsley concerning him without success. In or about February 1927 the name Peter Kelly appeared in a newspaper list of persons killed in a mine disaster at Barnsley. The first defender wrote to the manager of said mine but received no reply. The first defender believes and avers that the Peter Kelly in said list was the said Peter Kelly, and that he was in fact killed in said disaster. (Cond. 3) After the said pretended marriage the pursuer and first defender lived together at various addresses in England. At about the beginning of the Second World War the pursuer found a diary which suggested that the first defender had been married prior to her marriage to the pursuer. The first defender admitted that she had been married to Peter Kelly on 21st April 1921 at Whitehaven and had had four children to him. She stated that in or about 1926 the said Peter Kelly had left her and that prior to her marriage to the pursuer she had heard that Peter Kelly had been killed in a pit disaster...
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