Montgomery v Zarifi
| Jurisdiction | England & Wales |
| Judgment Date | 28 June 1918 |
| Docket Number | No. 13. |
| Date | 28 June 1918 |
| Court | House of Lords |
Ld. Chancellor (Finlay), Viscount Haldane, Ld. Dunedin, Lord Shaw of Dunfermline.
Husband and WifeDivorceEffect of divorce on marriage-contract funds ForeignTrustMarriage-contract invoking English lawEffect of Scottish divorce on property held under English trust.
A domiciled Scotsman and a domiciled Englishwoman, prior to their marriage, executed a marriage-settlement in English form, which contained a declaration that its provisions should be construed, and the rights of parties claiming thereunder should be regulated, according to the law of England in the same manner as though the husband were then, and the spouses during marriage should continue to be, domiciled in England. The deed provided that the income of the funds settled by the wife should be paid to her during her life for her separate use without power of anticipation, and after her death to the husband should he survive her. The trustees were domiciled in England, and the trust was managed, and the trust funds were invested, there.
The husband obtained divorce in the Scottish Court. There were no children of the marriage. Thereafter he brought an action in the Scottish Court against his divorced wife (who had left Scotland prior to the divorce), and also against the marriage-settlement trustees for any interest they might have, the primary conclusions of which were for declarator that the wife had forfeited all her legal rights and conventional provisions under the settlement; that her life interest in the funds settled by her had ceased as if she were dead; and that the income thereof now fell to him. There were also alternative conclusions for declarator that the husband was entitled to such equitable modification of the provisions of the settlement as would have been allowed by English law had the spouses been domiciled, and divorce granted, in England.
Held (aff. judgment of the First Division) (1) that, as the primary conclusions of the action depended upon the application of Scots law, and as the application of that law to the rights of parties had been excluded by the settlement, the defenders fell to be assoilzied from the primary conclusions of the action; and (2) that, quoad the alternative conclusions, the action fell to be dismissed, in respect that the the English Divorce Court alone had the powers of modification referred to.
Opinion (per Lord Dunedin) that, the settlement being an English settlement and the funds held by English trustees, the husband's rights under the settlement would have fallen to be determined according to the law of England, even had there been no clause in the settlement invoking that law.
(In the Court of Session, 6th July 19171917 S. C. 627.)
The pursuer appealed to the House of Lords. The case was heard on 13th, 14th, and 15th May 1918, when the undernoted authorities were cited.1
At delivering judgment on 28th June 1918,
Lord Chancellor.The appellant in this case is, and always has been, domiciled in Scotland. On 31st October 1912 he was married to the respondent Fanny Zarifi, who, prior to her marriage, was domiciled in England. The other respondents are the trustees of the settlement, dated 31st October 1912, made in contemplation of the marriage, who were then and are now domiciled in England.
On 12th October 1914 the appellant, in an action raised in the Court of Session in Scotland, obtained a decree of divorce against the respondent Fanny Zarifi on the ground of her adultery. There are no children of the marriage. This action was instituted by the appellant on 15th June 1915 to have it found and declared that since, and by virtue of, the said decree of divorce the respondent Fanny Zarifi had lost and amitted
any provisions and rights provided to her during the lifetime of the appellant in the said settlement of 31st October 1912 as if she were naturally dead as at the date of the said decree of divorce; that she is bound to concur in the payment by the trustees of the said settlement to the appellant of the provisions made in her favour during the lifetime of the respondent by the said settlement; that it should be declared that the life interest of the respondent Fanny Zarifi in the property vested in the trustees of the said settlement ceased and determined as at the date of the said decree of divorce; and that the income should be paid to the appellant as if she were dead: and, as an alternative, to have it found and declared that, under the said settlement, the appellant is entitled to such equitable modification of the provisions of the settlement as he would have obtained according to the law of England if the domicile and the decree of divorce had been in England; and that there should be paid over to the appellant such portion of the income under the said settlement as shall be determined to be in accordance with the practice of the English Courts, or as shall be found to be just and equitable in the circumstances of the case.
Lord Dewar, before whom as Lord Ordinary the action was tried, dismissed it on the ground that the Court of Session had no jurisdiction to entertain the action. His decision was reversed by the First Division of the Inner House, where it was held that the Court of Session had jurisdiction, and no point is now raised as to this in the present appeal. The First Division, having held that there was jurisdiction in the Court of Session and having repelled a plea by the respondent of forum non conveniens, proceeded to adjudicate upon the merits of the case, and it is from their decision on these that the present appeal is brought. The Lord President, Lord Mackenzie, and Lord Skerrington concurred in holding that the respondent should be assoilzied from the earlier conclusions of the summons and that the alternative conclusions should be dismissed. Lord Johnston concurred as regards the earlier conclusions, but as regards the alternative conclusions he was of opinion that a case should be stated for the opinion of an English Court. In accordance with the opinion of the majority of the Judges of the First Division, the interlocutor of 6th July 1917 was pronounced, by which the defenders, now respondents, were assoilzied from the first three conclusions of the summons as laid, and the remaining conclusions were dismissed. It is against that interlocutor that the present appeal is brought.
The settlement of 31st October 1912, which was executed in view of the marriage of the appellant and the respondent Fanny Zarifi, recited a marriage-settlement which had been executed on the marriage of her parents and the will of her deceased father, under both of which her mother had a life interest and a power of appointment. The settlement then contained a release by the mother of her life interests under the previous settlement and the will, and an appointment by her of all the property under either of these instruments in favour of the respondent Fanny Zarifi to be held by the respondents the trustees on the trusts of the marriage-settlement. Under these trusts the income was to be paid to the wife (the present respondent) during her life for her separate use without power of anticipation, and after her death to the husband and his assigns during his life, and subject to these life interests the property was to be held in trust for the issue of the marriage. If no issue took under the settlement, the property so brought into the settlement by the wife was to go as she should appoint, and in default of appointment was to be held in trust for such persons as would have become entitled to the wife's fortune under the statutes for distribution of personal estate at the death of the wife had she died possessed thereof intestate, and without having married. In the last clause but one of the settlement there are found the following provisions, on which the decision of this appeal must turn:It is hereby agreed and declared by all the parties hereto and particularly by the husband that these presents shall be construed and that the rights of all persons claiming hereunder shall be regulated according to the law of England in the same manner as if the husband were now domiciled in England and as if the husband and wife were to remain henceforth during their respective lives domiciled in England. It is not necessary for the present purpose to refer to any of the other provisions of this settlement.
As the domicile of the spouses was in Scotland the Court of Session had jurisdiction to grant the divorce of 12th October 1914. The effect of divorce on the interests of the guilty party is thus stated by Lord Stair1: 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 foresaid Act of Parl. 1573, c. 55, concerning non-adherence,) but the party injured hath the same benefit as by the other's natural death. I may refer to the case of Harvey v. Farquhar,2 decided in this House in 1872 by Lord Hatherley, L.C., Lord Chelmsford, and Lord Westbury, as finally establishing the correctness of this statement of the law.
The decision of the First Division3 against the appellant proceeded, as regards the earlier conclusions, upon the ground that the terms of the marriage-settlement excluded these conclusions. The Lord President says (at p.645): The question at issue, and the sole question at issue, isWhat is the legal effect on the rights of the parties under the indenture and settlement dated 31st October 1912 of a decree of divorce between the parties pronounced by the Court of Session? The answer is that the legal effect of this Scottish decree of divorce upon the provisions of the deed must be regulated exclusively by the law of England, exactly as if the parties were now, and all along had been, domiciled in England. That is the answer which the law of Scotland makes, because the parties have so contracted, and...
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