Lady Selsdon v Lord Selsdon
| Jurisdiction | England & Wales |
| Judge | Lord Tomlin,Lord Warrington of Clyffe,Lord Thankerton,Lord Rusell of Killowen,Lord Macmillan,. |
| Judgment Date | 18 June 1934 |
| Judgment citation (vLex) | [1934] UKHL J0618-2 |
| Court | House of Lords |
| Docket Number | No. 4. |
| Date | 18 June 1934 |
[1934] UKHL J0618-2
House of Lords
Lord Tomlin.
Lord Warrington of Clyffe.
Lord Thankerton.
Lord Russel of Killowen.
Lord Macmillan.
After hearing Counsel, as well on Monday the 23d, as on Tuesday the 24th and Thursday the 26th, days of April last, upon the Petition and Appeal of the Right Honourable William, Baron Selsdon, of Croydon, residing at Whitehall Court, London, S.W.1, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division, of the 21st of December, 1933, so far as regards the words "Find, Declare and Decern in terms of the conclusions of the summons as amended: Find the pursuer entitled to expenses and remit the Account thereof, when lodged, to the Auditor to tax and to report." might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor, so far as aforesaid, might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the Right Honourable Anne Madeleine, Baroness Selsdon, of Croydon, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor, of the 21st day of December 1933, in part complained of in the said Appeal, and the Interlocutor of the Lord Ordinary in Scotland (Lord Pitman), of the 16th day of June, 1933, thereby Recalled, be, and the same are hereby, Discharged, and that the Cause be, and the same is hereby, remitted back to the Court of Session in Scotland, with a Direction to enter Judgment in terms of the first conclusion only of the summons as amended: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondent, the Costs incurred by her in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within One Calendar Month from the date of the Certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Lord Ordinary officiating on the Bills during the Vacation, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
This is an Appeal against an interlocutor of the First Division of the Court of Session in an action in which the Respondent was pursuer and the Appellant and the trustees of the trust disposition and settlement of the Appellant's late father were defenders.
The facts are simple and are not in dispute.
In 1909 the Appellant was married to the Respondent. There was issue of the marriage.
By decree of divorce of the Court of Session dated the 18th March, 1932, the marriage of the Appellant and Respondent was at the instance of the Respondent dissolved in respect of the Appellant's desertion.
At the date of the dissolution of the marriage the Appellant was entitled amongst other moveable estate to a life rent interest under his father's trust disposition and settlement in a share of the trust estate comprised in such trust disposition and settlement.
The action out of which this Appeal arises was raised by the Respondent to establish her right to her legal provision of jus relictae which under Scots law the dissolution of the marriage conferred upon her, the real question between the parties being whether the life rent interest of the Appellant under his father's trust disposition and settlement ought to be taken into account in determining the amount of such jus relictae.
The summons as originally framed contained a declaratory conclusion that the Respondent on the dissolution of her marriage with the Appellant by the decree to which I have referred became and was entitled to her legal provision of jus relictae out of the moveable estate then belonging to the Appellant and that the Appellant's estate then included and includes the share of the trust estate of his late father under his trust disposition and settlement and the whole rights of the Appellant in such share.
The case came before the Lord Ordinary, who held, following the case of Scott v. Scott, 1930 S.C. 903, by which he regarded himself bound, that the Respondent was entitled to jus relictae out of the life rent, and he declared and decerned in terms of the declaratory conclusions of the summons.
The Appellant reclaimed against the interlocutor of the Lord Ordinary to the First Division of the Court of Session, and the case was sent for hearing before seven judges in respect of the novelty and importance of the points at issue.
In the course of the hearing an amendment to the summons was allowed whereby there was added to the declaratory conclusion a second declaratory conclusion to the effect that the Respondent was entitled as from the 18th March, 1932, to payments in name of jus relictae from the Appellant of one-third of the nett sum or sums accruing as from that date and thereafter paid and to be paid over annually or termly to him by the Defenders, the trustees of the trust disposition and settlement, in respect of the life rent interest of the Appellant in the share of his father's trust estate and that in each year at such time or times as the nett sum or sums were paid over by the trustees to the Appellant.
In the result the Court by a majority of five to two (the Lord President and Lord Murray dissenting) sustained the Respondent's claim and declared and decerned in terms of the conclusions of the summons as amended.
The point though of importance and of considerable difficulty is a short one and does not admit of much debate. It is, moreover, a pure question of law into which no considerations of hardship or of equity can enter.
It is not in dispute that on a dissolution of marriage at the instance of an innocent wife, the wife is entitled to a share of the husband's moveable estate upon the basis of the fiction that as between husband and wife the husband is to be treated as civilly dead at the date of the decree of dissolution.
The general law in regard to the matter was in 1681 formulated by Lord Stair (see Stair's Instit., 1, 4, 20) in the following terms:—
"Marriage dissolved by divorce, either upon wilful non-adherence (or wilful desertion) or adultery, the party injurer loseth all benefit accruing through the marriage (as is expressly provided by the Act of Parliament, 1573 c. 55, concerning non-adherence), but the party injured hath the same benefit as by the other's natural death."
This passage has been treated as authoritative in your Lordships' House on at least two occasions (see Harvey v. Farquhar, 10 M. (H.L.) 26, and Montgomery v. Zarifi, 1918 S.C. (H.L.) 128).
It does not, however, resolve in terms the problem which arises in the present case and which appears to have arisen for the first time in 1930 in the case of Scott v. Scott to which reference was made by the Lord Ordinary.
Before your Lordships' House the case has been ably argued on both sides.
On the part of the Appellant it has been urged that when an innocent wife divorces a husband her right is the right of a widow, neither more nor less, and that she can claim nothing except in respect of moveable estate which is transmissible on the husband's natural death and which would on his natural death pass to his executors, and that it is of the essential quality of the " jus" that it is a succession or in the nature of a succession, and therefore consists in a sharing only in those things to which there can be a succession and which will form part of the "executry" estate of the husband on his natural death. Upon this view of the matter a life rent of the husband can never be brought into account for the purpose of determining the amount of jus relictae whether the husband be naturally or only fictionally dead.
On the other side the matter is presented thus. The argument that jus relictae arising on divorce is to be ascertained as though the husband were actually dead and upon the footing of the amount of his net personal estate in the hands of his executor available for distribution among his successors breaks down at the threshold, because where the husband is fictionally dead the account falls admittedly to be taken in important respects on the basis of fact and not of fiction. For example, on one side of the account no allowance is or ought to be made for such matters as death duties and funeral and testamentary expenses, all of which would necessarily appear in an executor's account, while on the other side of the account there may be items such as policies on the husband's life which cannot be brought in at their maturity value as they would be at his natural death, but can only be taken at their value ascertained at the date of the divorce.
Now it is not questioned that jus relictae like legitim is jus crediti. On the natural death of the husband it is a claim of the widow against the husband's executor. On the fictional or civil death of the husband resulting from divorce it is a claim by the wife against the husband himself.
In the latter case jus relictae is not in any real sense a succession at all. The wife is in truth and in fact the creditor of the husband fictionally dead and can in fact by due process of law recover the amount of the debt from him because he is alive though fictionally dead. It may well be that jus relictae whether arising on natural or fictional death has...
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