Scottish Court of Session Decisions

LORD THOMSON'S OPINION.—[After the narrative quoted supra his Lordship continued]—At the undefended proof before me it was established in evidence that the divorce proceedings in Teheran were in accordance with Iranian law. A certified extract from the register of the Divorce Registry Office No. 20 was produced and spoken to and at a second diet a certificate was produced from the head of the Registry Office, dated 22nd January 1966, to the effect that according to Iranian law the divorce between the parties was final. I called for production of this second certificate because by Iranian law the deed of divorce dated 28th April 1963 was revocable by the defender in the sense that it ceased to be valid if the defender resumed cohabitation with the pursuer within a period of three months.

Since the case of Le Mesurier v. Le Mesurier, [1895] AC 517, both judges and jurists in the United Kingdom have moved with increasing positiveness to the view that in the matter of divorce the Courts in England and Scotland will recognise as valid a decree recognised as valid by the Court of the husband's domicile. The passage in Eraser on Husband and Wife, vol. ii, p. 1331, to the effect that "the Scottish Courts will not recognise as valid the decree of divorce of a foreign Court, unless the ground of divorce be adultery or desertion" (i.e., a ground of divorce according to the law of Scotland) is no longer recognised as correct—Perin v. Perin, 1950 S.L.T. 51, per Lord Sorn at p. 52. The only possible qualification to the principle now established that the Scottish Court will recognise as valid a decree of divorce recognised as valid by the Court of the husband's domicile is that the ground of divorce is repugnant to the standard of morality recognised by a civilised and Christian state—Humphrey v. Humphrey's Trustees, (1895) 33 S.L.R. 99, per Lord Moncreiff at pp. 100–101;Perin v. Perin . I do not need to speculate as to the kind of circumstances, if any, in which the Scottish Courts would apply that qualification, for I am fully satisfied that the present is not such a case. I may, however, observe that the whole tendency of the law both in England and in Scotland has for many years been to emphasise the importance of recognising the finality of the Court of the husband's domicile as the sole arbiter in matters of divorce—cf.Le Mesurier v. Le Mesurier, per Lord Watson at pp. 540–541, quoting Lord Penzance in Wilson v. Wilson, (1872) L.R. 2 P. & D. 435, at p. 442.

But until recently there were doubts as to whether the Courts in Scotland and England would give recognition to the validity of a non-judicial act purporting to dissolve a marriage, even if such an act were recognised as validly terminating the marriage by the Court of the domicile. These doubts arose mainly from the decision in the English case of Rex v. Hammersmith Superintendent Registrar of Marriages, [1917] 1 K.B. 634, which appeared to decide that a non-judicial method of divorce which is part of a polygamous marriage law will not be recognised in England as dissolving a monogamous marriage. The decision in that case and the different lines of reasoning upon which the various judges proceeded have both been much criticised by authoritative writers on international private law, and in the recent case of Russ v. Russ, [1964] P. 315, the Court of Appeal ruled that its authority must be restricted to its own particular facts. In Russ—a case not dissimilar to the present in its essential facts—the Court held that an act of dissolution of marriage in the country of the domicile and done according to the laws of that country will be recognised as valid in the English Courts, at least if judicially recognised by, and registered in the books of, the Court of the domicile. This decision accords with the views expressed in Cheshire, Private International Law, (7th ed.) pp. 346–348, and Dicey, Conflict of Laws, (7th ed.) pp. 308–309, (8th ed.) pp. 319–321. In my opinion it is sound in principle, and in the absence of any authority to the contrary I am prepared to hold that it is good law in Scotland. I do not say that the Courts in Scotland must always, and as a matter of positive law, recognise the validity of a divorce recognised as valid in the country of the domicile. I respectfully agree with Willmer L. J. in Russ (at p. 327) that "the court retains a residual discretion not to apply the law of the domicile where it is not proper to do so in the circumstances of a particular case." I can see nothing in the circumstances of the present case which would make it in any way improper for the Court to follow the general principle. I accordingly hold that the pursuer is a divorced woman by the law of Scotland.

A question arises as to whether in such circumstances it is appropriate to grant decree of declarator in the terms proposed. I was referred by counsel to the case of M'Kay v. Walls and Others, 1951 S.L.T. (Notes) 6. In that case the wife pursuer had obtained decree of divorce in the Courts of Iowa in the United States at a time when her husband was domiciled in the State of New York. Evidence was led that the Iowa decree was recognised as valid by the Courts of the State of New York. Lord Birnam refused as unnecessary a declarator that the pursuer was free of the marriage, on the ground that such a declarator "could not add anything to the force or effect of a decree of divorce recognised as valid by the Courts of the husband's domicile" and such a declarator "might be thought, in the words of Lord Moncrieff ‘to trespass against international comity’." In this case there is no judicial decree, and, having regard to the absence of authority hitherto in Scotland as to the pursuer's status in circumstances like the present, I think it is appropriate to pronounce the declarator concluded for. I do not believe that by so doing I shall be trespassing against international comity.