The Hon. Lady Anne Warrender, - Appellant; The Right Hon sir George Warrender, Bart., - Respondent
| Jurisdiction | Scotland |
| Judgment Date | 01 January 1835 |
| Date | 01 January 1835 |
| Court | Court of Session |
English Reports Citation: 6 E.R. 1239
FROM THE COURT OF SESSION.
Mews' Dig. viii. 226; S. C. 9 Bli. N.S. 89. Among the numerous cases in which Warrender v. Warrender has been dealt with, it may suffice to refer to Harvey v. Farnie (1880-82), 8 A. C. 43; and Le Mesurier v. Le Mesurier (1895), A. C. 517, where all the principal authorities are examined. See also Westlake's Priv. Int. Law, 3d Ed. 65, 78, and Dicey, Confl. of Laws, 2nd Ed. 388.
WARRENDER r. WARRENDER [1835] II CLARK & FINNELLY [488] APPEAL from the court of session. The Hon. Lady ANNE WARRENDER,-Appellant; The Rigtit Hon.t Si^fcst GEORGE WARRENDER, Bart.,-Respondent. [Mews' Dig. viii. 226; S. C. 9 Bli. N.S. 89. Among the numerous cases in which Warrender v. Wwrrender has been dealt with, it may suffice to refer to Harvey v. Farnie (1880-82), 8 A. C. 43; and Le Mesurier v. Le Meswrier (1895), A. C. 517, where all the principal authorities are examined. See also Westlake's Priv. Int. Law, 3d Ed. 65, 78, and Dicey, Confl. of Laws, 2nd Ed. 388.] A Scotchman domiciled in Scotland was1 married in England to am Englishwoman, and by marriage contract secured to her a jointure on his Scotch estates. They went to Scotland after their marriage, and resided there a short time, when they returned to England. They afterwards agreed to a separation, and articles of agreement were executed, by which the husband secured a separate maintenance to the wife during the separation. From the time of the separation the wife resided abroad, and the husband continued to be domiciled in Scotland, where he raised an action of divorce against her, on the head of adultery, alleged to have been committed abroad after the separation. held by the House of Lords, affirming the interlocutor of the Court of Session, that the wife's legal domicile was in Scotland, where the husband's was, and that she was amenable to the jurisdiction of the Scotch Court; that a.n edictal citation, with actual intimation by serving a copy of the summons personally, was a good citation; and that it is competent to the Scotch Courts to entertain a suit to dissolve a marriage contracted in England. This was an appeal against an interlocutor of the Court of Session in Scotland, repelling preliminary defences taken by the Appellant to an action of divorce raised against her there, in September 1833, at the instance of the Respondent. The main question, now for the first* time submitted for adjudication to [489] this House, was whether the Scotch Courts have jurisdiction to entertain suits for dissolving marriages contracted and solemnized in England, according to the law of England. The Respondent, in the case prepared on his behalf in the Court of Session, and afterwards presented to this House for the purposes of the appeal, stated, among other things, that he was born in Scotland, of Scotch parents ; succeeded to the family estates in the county of East Lothian, and acquired, by purchase in other counties of Scotland, landed property of considerable extent and value; that on succeeding to the estate of Bruntsfield near Edinburgh, in 1820, he fitted up the mansion-house there as his principal place of residence, and actually resided there from that period; that in early life he obtained a commission in the Berwickshire militia, and was still lieutenantrcolonel of that regiment. In 1807 he was returned to Parliament for the Haddington district of burghs; afterwards was elected Member for an English borough, and during his attendance on his parliamentary duties, for the first five years, he lived in temporary lodgings or in hotels in London, having then no house or establishment in any part of England. In 1812, being appointed a member of the Board of Admiralty, he took possession of a house assigned to him in right of that appointment, and continued to occupy it until April of the year 1822; but in every year during that period he returned to Scotland, whenever his official duties permitted his absence from London. In October 1810, while the Respondent was residing in lodgings in London, he was married, according to the laws of England and the rites of the Church of England, to the Hon. Anne Boscawen (the Appellant), daughter of George Evelyn, Viscount [490] Falmouth, then deceased, with the consent of her guardians, she being only 18 years of age: That previous to and in contemplation of the marriage, a settlement in the English form, * The same question was submitted in Tovey v. Lindsey, 1 Dow. 117, but was not decided. 1239 II CLARK & FINNELLY. WARRENDER V. WARRENDER [1835] to which the Appellant's guardians were parties, was duly made and executed, securing the interest of her fortune to herself for life; and also an ante-nuptial contract of marriage, in the Scotch form, was executed at the same time, by which it was provided that the Appellant should be secured in a jointure of £1000 a year, partly over the Respondent's heritable estates of Lochend, and partly over his lands at Goodspeed, both situated in the county of Haddington; and in virtue of the precept of sasine contained in that contract, the Appellant was afterwards duly infeft in those lands: That immediately after the marriage the Respondent, accompanied by the Appellant, returned to Scotland, and they resided together on his paternal estates there for the greater part of the two years next following; the Respondent being obliged by the duties of his office in 1812 and thenceforwards, to reside more constantly in London, where the Appellant also resided with him. The Respondent further stated, that in the year 1814, and subsequently, differences sprung up between him and the Appellant; and that in 1819, at the solicita.-tion of herself and her relations, he reluctantly consented to a. separation. The articles of agreement entered into on that occasion, dated the 1st of January 1819, and made between the Respondent of the first part, the Appellant of the second part, and her brothers, Viscount Falmonth and the Hon. and Rev. John Evelyn Boscawen, of the third part, recited, that " Whereas circumstances have arisen which have induced the said Sir George War-[491]-render and Dame Anne, his wife, to agree to live separate and apart from each other henceforth, until these presents shall be annulled as hereinafter mentioned," etc.; and, after securing to the Appellant certain annual income, to be paid by the Respondent to' her trustees, at such periods and in such manner as therein mentioned, for her separate maintenance during the separation, they contained the following clauses: " That if the said Sir George Warrender shall in any one year be obliged to pay and shall pa,y any debt or debts of the said Dame Anne Warrender hereafter contracted, to the amount in the whole of upwards of £1010 (the annual sum secured for her separate maintenance), then and thenceforth the covenants of the said Sir George Warrender, hereinbefore contained, shall cease and be void;" and again, " That if the said Sir George Warrender and Dame Anne his wife shall jointly be desirous of annulling these presents*, and the agreements and provisions therein contained, and shall signify such desire in writing indorsed on these presents, or on a duplicate thereof, (such writing to be under their joint hands and attested by two credible witnesses,) then and from thenceforth these presents, and every article, matter and thing herein contained, shall cease, determine and be null and void, anything hereinbefore contained to the contrary notwithstanding." On the 6th of February 1819, the Respondent addressed the following letter to1 the Appellant's brothers, the trustees of the articles: " My Lord and Sir,-Although I have objected to have any clauses inserted in the articles of separation between Lady Warrender and myself, which should contain a permission from me to her to1 go and reside where she pleases, or which should preclude me from suing her in the Ecclesiastical Co urt for restitution of conjugal rights, I hereby [492] pledge myself that Lady Warrender shall be at liberty, during our separation, to go and reside where she pleases, and that I will not institute any suit against her, for the purpose mentioned. I am, etc., G. Warrender." The Respondent in his case further stated, that he and the Appellant had lived separate ever since the date of the said recited articles; he continuing to' reside sometimes in Scotland, sometimee in London, as1 required by his official situation and parliamentary duties; but that the Appellant went to the Continent, and, except one short, visit to England in 1821, she had ever since resided abroad, in France, Switzerland, or Italy: that circumstances: having lately come to the knowledge of the Respondent, which led him to distrust the Appellant's conjugal fidelity, he, upon an investigation directed by him, satisfied himself that she had, in 1822, formed an improper intimacy with one Luigi Rabitti, a music-master, and had been guilty of adultery with him in that year, and kept up an adulterous intercourse with him through the years 1822, 1823, 1824, 1825, 1826, 1827 and 1828, in Paris, Dieppe and Versailles, all in the kingdom of France; whereupon the Respondent instituted his suit praying for " a, decree, finding and declaring the Appellant guilty of adultery, and divorcing and separating her from his fellowship and company; and also finding and declaring the Appellant to have forfeited the rights and privileges 1240 WARRENDER V. WARRENDER [1835] II CLARK & FINNELLY. of a lawfujiwife; and that the Respondent is entitled to marry any person he pleases, sicklike and in the same manner as if he had never been married, or the Appellant were naturally dead; conform to the law and practice of Scotland." The Respondent's summons of divorce, concluding in these terms, was executed against the Appellant [493] edictically as forth of Scotland,* and...
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