Murison v Murison
| Jurisdiction | Scotland |
| Judgment Date | 20 March 1923 |
| Docket Number | No. 65. |
| Date | 20 March 1923 |
| Court | Court of Session |
Lord Morison, Lord Justice-Clerk (Alness), Lord Ormidale, Lord Hunter, Lord Anderson.
Husband and Wife—Jurisdiction—Contract—Jurisdiction ratione contractus—Declarator of marriage at instance of woman—Marriage in Scotland where man domiciled—Man subsequently resident, domiciled, and personally cited abroad.
In an action of declarator of marriage, brought in 1922 by a woman resident in Scotland, the pursuer averred that the defender had married her by de prœsenti interchange of consent in Scotland in 1888. The parties cohabited mainly in Scotland until 1902, when they went to Natal. The defender was resident in Natal when the summons was served, and was personally cited there. It was admitted that the defender was domiciled in Scotland at the date of the alleged interchange of consent, but had acquired a domicile in Natal before the action was brought.
Held (1) that, in an action of declarator of marriage at the instance of a woman, the fact that the defender is not domiciled in Scotland at the date of citation does not per se exclude the jurisdiction of the Court; but (2) (rev. judgment of Lord Morison) that, in such a case, to found jurisdiction not only must the alleged contract of marriage have been entered into in Scotland, but the defender must also have been personally present in Scotland when cited; and action dismissed.
Wylie v. Laye, (1834) 12 S. 927, followed; and explained as in effect overrulingDodds v. WestcombUNK, (1745) M. 4793, and Mackenzie v. Mackenzie, 8th March 1810, F. C.
(Reportedsupra, at p. 40.)
On 20th April 1922 Mrs Florence Smith or Murison brought an action against Patrick Murison, medical practitioner and medical officer of health, Durban, Natal, for declarator that the parties were married in Scotland on 17th August 1888, and for an order of adherence.
The averments of parties on record were summarised by Lord Hunter in his opinion as follows:—‘According to the pursuer's averments, she and the defender, at Edinburgh on or about 17th August 1888, interchanged consent and accepted each other as husband and wife. Until 1902 the parties are alleged to have lived together as husband and wife in different towns in Scotland and England. In that year, however, the defender obtained the position of medical officer of the Borough of Durban, Natal, South Africa. According to article 13 of the condescendence the pursuer lived with the defender in Durban for nineteen years at bed and board as his wife until 1919, when, in consequence of the drunken behaviour of the defender, disagreement arose between the pursuer and the defender. On 15th April 1920 the defender went through a ceremony of marriage in Johannesburg with a woman named Freda Andrews. On discovering this, and also in consequence of the defender's drunken habits, the pursuer and her daughter, a child who had been born to the parties in 1890, ceased to live with the defender. Since 10th March 1921 the pursuer has not lived with the defender. The defender denies the pursuer's allegations as to marriage, stating that the pursuer lived with him as his mistress and not as his wife.’
The pursuer pleaded;—‘A valid marriage having been constituted between the pursuer and the defender as condescended on, declarator in terms of the conclusions of the summons should be pronounced.’
The defender pleaded, inter alia;—‘(1) The defender being neither domiciled in, nor resident in, nor cited within Scotland, the Court has no jurisdiction to try the action. (2) The averments of the pursuer so far as material being irrelevant, the action should be dismissed.’
The case was heard in Procedure Roll, where the discussion was limited to the question of jurisdiction, and it was admitted that the defender was domiciled in Scotland at the date of the alleged ceremony of marriage, but was domiciled in Natal at the date of citation.
On 6th February 1923 the Lord Ordinary (Morison) repelled the first plea in law for the defender, continued the cause, and granted leave to reclaim.
Lord Morison's opinion.—In this case the pursuer seeks a declarator that she was married to the defender at Edinburgh on 17th August 1888. Her case is that the marriage, though irregularly contracted, is valid by the law of Scotland. She avers that for years she has cohabited with the defender as his wife; that the child of the marriage was registered by him as legitimate; and that she has enjoyed until recently the status of the defender's wife. She alleges that she has been compelled to raise this action now, because the defender has recently sought to deprive her of that status, and has gone through a form of marriage with another woman in South Africa.
The defender denies the pursuer's story, and gives a totally different account of the parties' relationship. He pleads that this Court has no jurisdiction. He says—and this was admitted at the bar—that his domicile at the date of the raising of this action was in South Africa. On the other hand it was admitted on behalf of the defender that his domicile of origin was Scottish, and that this domicile subsisted in the year 1888 and for some years thereafter.
At the opening of his argument the learned counsel for the defender brought to my notice the opinions which their Lordships of the Second Division pronounced on 28th October 1922 (supra, pp. 43 et seq.), and Mr Stevenson said that they amounted to no more than that the Court decided that the award of aliment made in my interlocutor of 18th July 1922 reclaimed against was, in the circumstances, inexpedient. After carefully considering the opinions of the learned judges, I think this view is correct, and I have the less hesitation in accepting it as no question of jurisdiction was raised before me in the motion roll when I made the interim order. I granted the interim decree only for the purpose of giving practical effect in this country to the judgment of a competent British Court, and because I felt unable to resist the presumption in favour of an order for aliment awarded by the Court of the defender's domicile, which, I presumed, would only be pronounced after some evidence of the marriage had been produced.
Mr Stevenson then argued the question of jurisdiction with great ability and with a fairness which I appreciated very much. He said that it was for the pursuer to establish jurisdiction. He pointed out that the summons had been served edictally, and contended that marriage was by Scottish law a contract; that no contract could by itself give this Court jurisdiction over a foreigner; that personal service within the jurisdiction or its equivalent was always necessary; that there was no binding authority which supported the jurisdiction of this Court; that the doctrine of the matrimonial domicile had been abolished; that the South African Court alone had jurisdiction over the defender; and that the pursuer should have raised her action there.
I agree so far with the defender's contention that it is for the pursuer to show that this Court has jurisdiction, and the argument in support of it proceeded upon these admitted facts—(1) that the defender was a native of Scotland; (2) that the defender's domicile and the pursuer's residence were at the date of the alleged marriage in Scotland.
The authorities on the question are few in number. They are all anterior to the Scottish statutes which deal with irregular marriages and their registration. Judicial opinion seems to have been conflicting, and the difference of view is well illustrated by the case of Dodds v. Westcomb, M. 4793, in which a decree of declarator of marriage was pronounced against an Englishman whose domicile, both at the date of the marriage and of the action, was in England. This decision is referred to apparently with approval by Erskine (Inst. I. ii. 20). If the summons in that case was served personally on the defender while within the jurisdiction, or if arrestments ad fundandam jurisdictionem had been laid, its decision is quite consistent with the judgment of the whole Court in Wylie v. Laye, 12 S. 927. The majority of the Court in Dodds's case were not of opinion that the locus contractus founds a forum, and so I think arrestments must have been used. But it is clear that the Court recognised the contract of marriage as in a special position because a quœstio status was involved. I think, however, it follows from the judgment in Wylie's case that, if the defender here had been cited in Scotland or arrestments ad fundandam jurisdictionem had been used, the Court would have sustained its jurisdiction. This conclusion is inconsistent with the decision in the prior case of Scruton, M. 4822, where goods belonging to the Irish defender had been attached by arrestment.
I think the only case which applies to the present one is the case of Mackenzie v. Mackenzie, 8th March 1810, F. C. This was an action of declarator of marriage in which the defender was a domiciled Scotsman at the date of the alleged marriage in or about 1797. The parties lived habit and repute as husband and wife until 1807, when the defender deserted his wife and children and settled in Manchester. She appears to have raised her action about the year 1810, and the Court repelled the defender's plea of no jurisdiction and granted decree. As I read the report of the case, the defender never returned to Scotland after 1807, and there is no suggestion that arrestments to found jurisdiction were laid. This judgment, so far as I have been able to ascertain, has not been commented upon in any subsequent decision. I think it is binding upon me, and I must repel the defender's first plea in law. My impression is that Mr Stevenson admitted the application of Mackenzie's case, but he pointed out that its authority was disavowed by Lord Fraser at p. 1273 of Husband and Wife, and contended that the judgment was unsound in principle. As I heard a full argument on this very important subject, I...
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