Weiss v Weiss
| Jurisdiction | Scotland |
| Judgment Date | 17 July 1940 |
| Date | 17 July 1940 |
| Docket Number | Case No. 206 |
| Court | Court of Session (Outer House) |
(Lord Robertson, Lord Ordinary.)
War — Effects of Outbreak of — On Enemy Subjects — With Regard to their Personal Status in the Territory of the Belligerent — Persona standi In judicio — Right to Sue in Matrimonial Cases.
The Facts.—This was an action for divorce. The plaintiff was an enemy alien. He was resident and domiciled in Scotland and had applied for naturalization. He had conformed to the instructions imposed upon enemy aliens and had been exempted from internment. He had received special permission by the competent authorities to travel to Edinburgh in order to give evidence in the case for decision. The Lord Ordinary raised the question of the plaintiff's title to sue, seeing that he was an enemy alien.
Held: that the plaintiff was entitled to sue in a Scottish court. The Lord Ordinary said: “I have had a full citation of authority, and in my judgment the pursuer is entitled, on the above facts, to invoke the jurisdiction of this Court for the purpose of seeking a decree of divorce. The dictum of Buckley, L.J., in Continental Tyre and Rubber Co.ELR1 applies to a case in which the alien enemy is assumed by him to be resident abroad, and its approval by Lord President Strathclyde in Van Uden v. Burrell2 was given in a similar state of facts. The Continental Tyre Co.'sELR case was appealed to the House of Lords,3 where it was laid down that enemy character depends on residence
(p. 339). The position of an alien enemy resident in this country was considered By Lord Hunter in Schulze v. Bank of ScotlandUNK.1 He affirmed the right of an enemy alien, if he observed the restrictions imposed upon him, to invoke the jurisdiction of this Court in a process to which no individual objection could be taken. His judgment on that point was acquiesced in.2 And in England the right of an alien enemy resident in this country to sue in a matrimonial cause has been affirmed.3“I think that the pursuer is entitled to sue for divorce in these Courts at the present time. On the facts of the case I think he is entitled to divorce, and I shall grant decree accordingly.”
1Continental Tyre and Rubber Company (Great Britain) Ltd. v. Thomas Tilling Ltd.ELR, [1915] 1 K.B. 893, at p. 918.
1 [1914] 2 S.L.T. 455.
2 (1916) 2 S.L.T. 207.
3Kraus v. Kraus, (1919) 35 T.L.R. 637; see also Princess of Thurn and Taxis, [1915] 1 Ch. 58; Porter v. Freudenberg, [1915] 1 K.B....
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