Courtin v Elder
| Jurisdiction | Scotland |
| Judgment Date | 19 November 1929 |
| Date | 19 November 1929 |
| Docket Number | No. 7. |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
Ld. Moncrieff.
Husband and WifeMarriageConstitutionDeclaration de prsentiView subsequently formed by one spouse that mere exchange of consent insufficient to constitute marriageWhether validity of marriage affected.
Mere consent makes marriage, and the validity of the contract is not affected by the fact that one of the parties subsequently forms an erroneous view that it was invalid for lack of some formality.
So held (rev. judgment of Lord Moncrieff) where, after the interchange of consent in a solicitor's office, the woman was led, by a remark of the solicitor, to suppose that registration was necessary to complete the marriage.
ProcessDeclaratorHusband and WifeDeclarator of nullity of marriageConclusion that defender already marriedCompetency.
Held, per Lord Moncrieff and acquiesced in by the Inner House, that it was competent to include, in a summons for declarator of nullity of marriage, a conclusion that the defender (the husband) was already married to another woman.
Tressie Henrietta Courtin (otherwise Elder) brought an action against James Elder, whose address was unknown, and also against Mrs Annie Collins or Elder, for any interest she might have. The leading conclusions of the summons were:"Therefore it ought and should be found and declared by decree of the Lords of our Council and Session, that at the time when the aftermentioned pretended marriage was entered into between the pursuer and the defender, the defender was married and still is married to Mrs Annie Collins or Elder, residing care of Mr George, 'Deans Hurst,' 14 Ashburton Road, Addiscombe, Croydon, Surrey, and it ought and should be found and declared, by decree of our said Lords, that the pretended marriage entered into between the pursuer and the defender on or about 5th June 1926 was from the beginning is now and in all time coming shall be null and void and of no avail, force, strength, or effect." Then followed conclusions for damages and for aliment for the child of the pretended marriage between the pursuer and the defender.
The pursuer averred that she had gone through a pretended ceremony of marriage with the defender in New South Wales in 1926, and that the defender had been married to Mrs Annie Collins or Elder, who was still alive, by declaration de prsenti in a solicitor's office in Glasgow in September 1924.
The pursuer pleaded:"The defender being lawfully married and his wife being alive at the time of his pretended marriage to the pursuer, as condescended upon, the pursuer is entitled to declarator of nullity as concluded for."
The action was undefended, and a proof was allowed and led. The important of the evidence is set forth in the opinion of the Lord Ordinary and of the judges in the Inner House.
On 16th July 1929 the Lord Ordinary (Moncrieff) dismissed the action.
LORD JUSTICE-CLERK (Alness).This is an action of declarator of nullity of marriage brought by the pursuer (the alleged wife) against the defender (the alleged husband). The ground upon which the action is based is that the defender, at the time when he went through a ceremony of marriage with the pursuer, was already a married man. That marriage is alleged to have been effected in a solicitor's office in Glasgow in the year 1924 by declaration and exchange of consent between the defender and a woman named Miss Annie Collins. The solicitor is now dead, but evidence is given by a gentlemen who was, I think, in partnership with him, or who, at any rate, looked after his business for him when he was absent, and also by Miss Collins and by a lady whose name appeared as one of the witnesses to the marriage.
Two things are quite clear in limine. The first is that Miss Collins, who was a party to the ceremony of marriage, intended to marry the defender on that occasion. She says in terms that when she went to the solicitor's office that was her intention. The second thing which is clear and undisputed is that, in the course of the proceedings in the solicitor's office, the defender and the lady exchanged a ring, which is described as a wedding ring. The Lord Ordinary says: "As was admitted by Annie Collinsthey went to the office in Bath Street on the understanding that they were to be married there. In the course of the ceremony in the office in Bath Street, James Elder placed a ring on the finger of Annie Collins. If there had been no further evidence in the case, I should have found it a reasonable inference from these facts that conjugal consent had been exchanged". So, far, therefore, the Lord Ordinary is with the pursuer. But then his Lordship goes on to say that, in light of the subsequent conduct both of Annie Collins and of the defender, he is constrained to hold that no
consent to marriage was exchanged between them in the solicitor's office, and therefore that the ceremony was inept.
It is, of course, trite law, and no citation of authority is needed in order to establish it, that mere consent makes marriage according to the law of Scotland. In this case that consent was evidenced by a declaration which was signed by the parties, and which the witnesses also signed. We have not the advantage of having the precise terms of that declaration before us; but when one has regard to the forms which are appended to Mr Lewis's book on Practice and to the form which has been handed up to...
To continue reading
Request your trial
-
SH v KH
...SLT (Notes) 87 Allen (1773) 2 Hunters' JP 213 Brady v Murray 1933 SLT 534; 1933 SN 75 Cameron v Malcolm (1756) Mor 12680 Courtin v ElderSC 1930 SC 68; 1929 SLT 676 Hyde v HydeELR (1866) LR 1 P & D 130 MacDougall v ChitnavisSC 1937 SC 390; 1937 SLT 421 Macfarlane v MacfarlaneSC 1956 SC 472; ......