Scottish Court of Session Decisions

On 12th January 1898 Mrs Jessie Manderson, domestic servant, Edinburgh, raised an action of divorce in the Court of Session against James Sutherland, “tobacco manufacturer, sometime in Edinburgh, at present in Douglas, Isle of Man,” on the ground of adultery committed in Edinburgh in 1880 and 1889 and intervening years, and in the Isle of Man in 1889 and 1895 and intervening years. On 15th October 1873 the pursuer and defender, who were then domiciled in Scotland, had been married to each other in Edinburgh and cohabited as man and wife for upwards of seven years, during which one child had been born of the marriage. This action was duly served on the defender and personally intimated to him, but he did not defend the same. Proof in the cause was led before Lord Kyllachy on 19th February 1898. The defender was cited as a witness but did not appear. On 23rd February Lord Kyllachy found the adultery proved, including acts of adultery libelled as having occurred in Scotland, and pronounced decree of divorce against the defender with expenses. These expenses were paid by the defender.

On 29th March 1898 the pursuer raised another action before Lord Kyllachy against the defender. In this action she asked the Court (1) to pronounce declarator that she was entitled to her terce out of the lands and heritages belonging to the defender on 23rd February 1898, and to ordain the defender to condescend upon the lands and heritages belonging to him so that the terce might be ascertained, and (2) to pronounce declarator that she was entitled to her Jus relictæ as at 23rd February, and to ordain the defender to hold just count and reckoning and to make payment to her of the amount thereof, failing which to pay to her £500.

The pursuer averred that at the date of the decree of divorce the defender was heritable proprietor infeft in part of the top flat and attics of house property at 112 Leith Street, Edinburgh, let to several tenants, the rental being about £45 per annum. She further averred that he had for many years been engaged in business as a tobacco manufacturer, and had made a considerable sum, amounting to about £1500.

The defender admitted that he was proprietor of part of top flat and attics at Leith Street mentioned by the pursuer, and offered to satisfy the pursuer's claim to terce as far as that property was concerned, but alleged that the tobacco trade in the Isle of Man was unprofitable, and at the date of the divorce he had no moveable estate and that he had none now. He averred that at the time the action of divorce was raised and decree pronounced he was not subject to the jurisdiction of the Court, and that the decree was invalid.

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“Explained and averred that defender, without any intention of ever returning, left Scotland at Whitsunday 1889, and acquired in 1889, and has ever since possessed, a domicile in the Isle of Man. He went to Douglas with the intention of permanently residing there, and he has in fact resided there ever since. He is tenant on lease of the house which he occupies there, and also of the premises in which he carries on business there. He has abandoned his domicile of origin, and has no intention of returning to Scotland. He was at the date of the said decree of divorce, and is still, domiciled in the Isle of Man. … The decree of divorce does not entitle the pursuer to jus relictæ out of defender's moveable estate. The defender is and has for years been domiciled in the Isle of Man, and the law of his said domicile does not entitle a wife to jus relictæ in the event of her obtaining a divorce in Scotland. By the law of the Isle of Man divorce a vinculo is not granted for desertion or adultery, and such a divorce granted abroad is not recognised as valid, or as having any patrimonial consequences, and the courts of that island are bound by their law to refuse effect for any purpose to any decree of divorce a vinculo granted by the courts of other countries. The pursuer therefore could not enforce her decree in the courts of the Isle of Man, or obtain the judgment which she has sued for in the present action.”

The pursuer pleaded—“1. The pursuer having obtained decree of divorce against the defender, is entitled to be paid her legal provisions out of his estate as if he were naturally dead.”

The defender pleaded—“2. The defender is entitled to absolvitor in respect (1) that the decree of divorce is invalid, and (2) that it has no effect for the purposes of the present action, the defender being domiciled in the Isle of Man, the law of which does not recognise the said decree as valid, or as having any legal effect, or at all events any effect on the rights of parties as regards property.”

On 3rd November 1898 the Lord Ordinary pronounced the following interlocutor:—“Finds, declares, and decerns in terms of the declaratory conclusions of the summons; quoad ultra appoints the defender to lodge an account of his estate, heritable and moveable, as concluded for in the summons, within one month from this date: Grants leave to reclaim.”

Note.—“It appears to me that I must assume, for the purposes of this case, that the decree of divorce which was sometime ago pronounced in this Court was a valid decree, and in so assuming I must, of course, also assume that this Court has jurisdiction to pronounce the decree. The grounds upon which the Court held that it had jurisdiction I need not enter upon. They were explained at the time, and for the present purpose must be held to have been sufficient. All that is, I think, scarcely disputable. Again, I must further assume—if the assumption is necessary—that in the Isle of Man and elsewhere a divorce so pronounced will on the principles of international law be recognised. Of course, if the courts of one country are asked to give effect to a judgment pronounced in another country, they may inquire whether the courts of that other country had proper jurisdiction; but then they will at least prima facie assume the affirmative. Nor can we here assume that even after inquiry they will reach a different conclusion.

Accordingly I cannot accede to the suggestion of the defender that because divorce for adultery is not recognised in the Isle of Man, the courts of the Isle of Man—if it were necessary to appeal to them—would refuse to give effect to the decree of divorce.

That being so, the next question is, whether—the divorce being valid, and this Court having jurisdiction to pronounce it—this Court has not now also jurisdiction to pronounce the decree here sought, that decree being really no more than a corollary of the decree of divorce. I take it that that question must he considered as if this action had been brought simultaneously with or immediately after the action of divorce. Indeed, I apprehend that the question is the same as if the conclusions of this summons had been appended to the conclusions of the action of divorce. And accordingly what I have to consider is whether if—having pronounced decree of divorce—I had been asked to pronounce decree in terms of this summons, I could have refused on the ground that while I had jurisdiction to grant divorce I had no jurisdiction to grant the remedies which divorce involves. I do not think I could have so refused. If this Court had jurisdiction to separate the parties and to free them from the conjugal relation, it had, and has, I apprehend, jurisdiction to grant the remedies which according to our law follow the disjunction of the conjugal relation. Now, these remedies include this, that a wife where she is the innocent party shall have the same rights over her husband's estate as if he were naturally dead, and it is not disputed that the rights sought here are simply the rights which the pursuer would have had if her husband were naturally dead.”

The defender reclaimed, and argued—The defender had at present, and had when the decree of divorce was granted, his domicile in the Isle of Man. The ordinary rule was that the domicile of the wife followed that of the husband. If it were held that adultery had been committed in Scotland prior to the defender changing his domicile, and that the defender went to the Isle of Man and acquired a domicile there for the purpose of evading an action of divorce, then such circumstances gave rise to an exception to the rule that the Court had no jurisdiction over a person whose domicile was in a foreign country. But the exception was only recognised as regards status; it did not extend to rights following upon divorce, or to succession. A foreign Court might recognise the decree of divorce as

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dissolving the marriage, but not as giving effect to the consequences; it would give effect to the decree according to its own system of law. The wife's rights must be measured by the law of the Isle of Man, where the husband had his domicile. By the law of the Isle of Man there was no such debt against a husband's estate as jus relictæ. The whole summons was based on the principle of intestate succession to a person deceased, and succession was always regulated by the law of the place of domicile— Niboyet v. Niboyet, 1878, L.R., 4 P.D. 1, opinion of L.-J. Brett, 13. The case must be tested apart from the accident that the defender possessed heritable property in Scotland. The defender admitted the pursuer's claim to terce from the heritable estate in Scotland.

Argued for pursuer—The decree of divorce which was granted on the footing that the defender was a domiciled Scotsman had not been challenged by the defender. It must therefore be assumed that the decree of divorce was based on the ground that the Scots Courts had jurisdiction against him because his domicile was Scots. Decree of divorce would not have been granted unless the husband had his domicile, in respect to succession, in Scotland at the date of the commencement of the proceedings— Low v. Low, November 19, 1891, 19 R. 115; Le Mesurier v. Le Mesurier [1895], A.C. 5–17; Armytage v. Armytage [1898], Probate, 178, opinion of Gorell Barnes, J., p. 185. Being domiciled in Scotland at the date of the divorce, the defender must be treated, quoad his wife's rights, as if he had died on that date. The pursuer was therefore entitled to decree for terce, and jus relictæ. The wife might possibly have to go to the Isle of Man to enforce the decree, and might encounter legal difficulties there, but that was no reason why she should be refused the decree in the Court to which she was entitled.

At advising—