Salvesen v Administrator of Austrian Property
| Jurisdiction | UK Non-devolved |
| Judge | Viscount Haldane,Viscount Dunedin,Lord Phillimore,Lord Blanesburgh,Lord Warrington of Clyffe |
| Judgment Date | 27 May 1927 |
| Judgment citation (vLex) | [1927] UKHL J0527-1 |
| Date | 27 May 1927 |
| Court | House of Lords |
[1927] UKHL J0527-1
Viscount Haldane.
Viscount Dunedin.
Lord Phillimore.
Lord Blanesburgh.
Lord Warrington of Clyffe.
House of Lords
After hearing Counsel, as well on Monday the 28th, as on Tuesday the 29th and Thursday the 31st, days of March last, upon the Petition and Appeal of Kate Cobden Salvesen or von Lorang, residing at No. 75 Kapellenstrasse, Wiesbaden, Germany, 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 13th of March 1926, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor 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 Administrator of Austrian Property, 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 13th day of March 1926, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Interlocutor of the Lord Ordinary in Scotland (Lord Morison), of the 21st day of April 1925, thereby Recalled, be, and the same is hereby, Restored: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant the Costs of the Action in the Court of Session, and also the Costs incurred by her in respect of the said Appeal to this House, the amount of such last-mentioned Costs 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 Court of Session in Scotland, or the Lord Ordinary officiating on the Bills during the Vacation, shall issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
This is an appeal from the First Division of the Court of Session. The Interlocutor questioned recalled an Interlocutor of the Lord Ordinary, Lord Morison, in an action of multiple poinding. The subject-matter was a fund consisting of moneys and shares in movable property held by the real raisers as bankers or agents. This fund was claimed by the appellant on the one hand and by the respondent on the other. The latter alleged that the fund was payable to him as being subject to a charge created by the Treaty of Peace (Austria) Order, 1920, on the footing that the appellant was then, in virtue of her marriage with Herr von Lorang, an Austrian national. The appellant replied that she had ascertained that her marriage was null and void, and that, therefore, she was never an Austrian national, and she obtained a sist or continuation of the proceedings in the multiple poinding which would give her time to bring a suit in Germany, the country of the domicile of Herr von Lorang and herself, to have the validity of the marriage ascertained.
In 1924 the Court at Wiesbaden gave judgment declaring the marriage to have been null and void. This decree was then produced by the appellant in the multiple poinding proceedings in the Scottish action. The Lord Ordinary gave effect to it, and dismissed the claim of the respondent. The First Division on appeal, by a majority, Lord Sands dissenting, recalled his Interlocutor, and remitted to the Lord Ordinary to allow a proof before answer. The question before your Lordships is whether the judgment of the German Court was conclusive, or whether the invalidity of the marriage was still open to question by the Courts here at the instance of the Administrator who had not been a party in the German proceedings.
The history of the case may be stated briefly. The marriage of Herr von Lorang, who was then an Austrian subject, to the appellant, who was a British subject domiciled in Scotland, took place in June 1897. In 1898 the pair settled in Germany, at Wiesbaden, and lived there as man and wife with a brief interruption of residence, due to the War, until the end of 1923. Undoubtedly Wiesbaden had become the place of their domicile. The respondent claimed the fund, and the action of multiple poinding was instituted in December 1923. The appellant resisted the claim of the respondent and took proceedings in the German Court of their domicile, traversing the validity of her marriage. She averred that she met Herr von Lorang at Wiesbaden in 1896 and became engaged to him. Had they been married by a religious ceremony in Austria, the country of his nationality, they would have had to undertake to bring up any children in the Roman Catholic faith. This they both desired to avoid. On the other hand, merely civil marriage in Austria would not have been agreeable to Herr von Lorang's friends there. Consequently they decided that their marriage should take place in Paris. The appellant pleads, in the present action, that she had only recently discovered that her marriage in Paris was null and void, for the reason that the parties had not observed the formalities of residence and publication which the French law required, and because the Registrar in Paris had been induced to perform the marriage ceremony upon the faith of a certificate to which she was no party, under the hands of Herr von Lorang and the jurisconsult of the Austrian Embassy, which stated, what was untrue, that Herr von Lorang was domiciled in France and was not obliged to publish the marriage in Austria. It made no difference according to her that the marriage was also celebrated at the English Church in Paris, according to the rites of the Episcopal Church of England. The proceeding in the Court at Wiesbaden was commenced by petition of the appellant against Herr von Lorang. The latter appeared and was represented by an advocate, but he took no active part in the proceedings. In the result the Court, acting on the principle locus regit actum, declared the marriage null and void. The evidence of Professor Brunet, a qualified French jurist, was taken. The Court satisfied itself that the marriage had been constituted, neither in accordance with the conditions required by French law nor in accordance with those required by the law of the domicile. No later French law which would apply nor any circumstances had cured the invalidity thus brought about. The respondent Administrator was not a party to these Wiesbaden proceedings.
The final decree of the German Court of the domicile was produced in the Scottish action, in which the Court was asked to give effect to it. The present respondent, as I have just stated, did not appear in the German proceedings. But in the Court of Session he claimed that he was entitled to have their validity, as against himself at least, investigated, notwithstanding that the parties to them, Herr von Lorang and his wife, were domiciled in Germany and not in Scotland.
My Lords, I do not think that there are any materials before us on which exception can be taken to the judgment in Germany as having been obtained by what amounts in law to collusion. I will assume that both the husband and his wife had as their main motive to obtain that judgment in order, if possible, to avoid the application of the Austrian Administrator's title to claim. But I think that on the grounds assigned by the Lord Ordinary and Lord Sands, if they had the legal right to do this the motive for which they exercised it could make no difference in a case in which fraud practised on the German Tribunal is not now alleged, and no collusion in any attempt to deceive that tribunal is established. The real question is simply whether the Court of the domicile was competent to dispose conclusively and finally of the question before it. If so it does not matter in law whether it had an exclusive jurisdiction. Had the question been one of divorce for adultery there could to-day have been no controversy as to the binding effect of the German decree. The status of married persons as dependent on divorce is a matter for which the Court of their domicile is the appropriate Court, and its decision is treated by our Courts as not only being valid but as conclusive. The case before us is, however, not one of dissolving an existing marriage but of deciding that no valid marriage ever took place. The marriage was declared by the Court of the domicile to have been void by reason of non-compliance with the formalities required by the law of France, when it was celebrated. If this was a judgment determining the status of the supposed husband and wife it may well be that it should be regarded as having been binding on third parties as having been a judgment in rem. For what does status mean in this connection? Something more than a mere contractual relation between the parties to the contract of marriage. Status may result from such a contractual relationship, but only when the contract has passed into something which private international law recognises as having been superadded to it by the authority of the State, something which the jurisprudence of that State under its law imposes when within its boundaries the ceremony has taken place. This juridical result is more than any mere outcome of the agreement inter se to marry of the parties. It is due to a result which concerns the public generally, and which the State where the ceremony took place superadds...
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