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LE MESURIER v. LE MESURIER et al.
C.t Mdtara, 502.
Marriage between Britieh or European spouses resident in the Island—Matrimonial law of Ceylon—Proclamation of 23rd September, 1799-Charters of 1801 and 1833—Scope of s. 597 of Civil ProcedureCode—Applicability of Roman-Dutch law—Authority of Internationallaw in the consideration of jurisdiction of Courts—Remedies for matri-monial misconduct allowable by Courts of the residence of the spouses—Action for divorce—for judicial separation—for alimony.
The matrimonial law of Ceylon, established by the Proclamation of23rd September, 1799, was superseded, or at least modified, in so far asit related to British and European residents, by the enactments of theBoyal Charter of 1801. But upon the repeal of those enactments bythe Charter of Justice of the 18th February, 1833, the Proclamation of1799 was revived, and the matrimonial law applicable to such residentsagain became the Boman-Dutch law.
The Boman-Dutch law does not give jurisdiction to the Courts of thecountry in wnich spouses domiciled elsewhere are for the time resident,to entertain a divorce suit.
Neither does section 597 of the Civil Procedure Code, nor didprevious enactments to a similar effect, empower a District Court toentertain any divorce suit which was not previously cognizable by theCourts of the Island.
According to international law, which is authoritative in the absenceof any municipal law to the contrary, the true domicile of the marriedpair, as distinguished from their so-called matrimonial domicile, affordsthe only test of jurisdiction to dissolve their marriage ; and the Courtsof England will not recognize as effectual the decree of a foreign courtdivorcing spouses who at its date had their domicile in England.
But though a District Court? of the Island cannot decree a dissolu-tion of marriage in the case of such residents, yet it may, under therules of international law, administer other remedies for matrimonialmisconduct, such as judicial separation on the ground of cruelty, andalimony for desertion.
HE plaintiff in this case appealed to Her Majesty the Queen
in Her Privy Council against the judgment of the SupremeCourt delivered on the 29th June, 1895, setting aside the judgmentof the District Court of Matara, and dismissing plaintiff’s actionwith costs.
The factB of the case are fully set forth in the judgmentof the Lords of the Judicial Committee of the Privy Council,namely:—
The Lord Chancellor, Lord Watson, Lord Hobhousb,Lord Macnaghten, Lord Morris, and Sir R. Couch.
Their judgment was delivered by Lord Watson, as follows
In February, 1883, the appellant, who is a member of theCeylon Civil Service, was married in England to a French lady,the leading respondent in this appeal, who will hereinafter be
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referred to as “ the respondent.” From the date of their mar-riage nntil the commencement of this suit the spouses had theirprincipal residence in Ceylon, where the appellant was necessarilydetained by his official dnties. In July, 1892, he was AssistantGovernment Agent of the District of Mdtara; and on the 12thof that month he brought the present action before the DistrictCourt of M&tara against his wife and three other defendants,praying for a divorce a vinculo matrimonii and other remedies,upon the allegation that she had committed adnltery with one ofthese defendants in the year 1887, with another of them in theyear 1889, and with the third of them at various times betweenMay, 1891, and April, 1892. Except on the last of these occasions,when the adultery was alleged to have taken place at Kandy, noneof these matrimonial offences was said to have been committedwithin the jurisdiction of the Courts of Ceylon. The loci assignedfor these acts on the two other occasions were, on the first thesteamship Qoorkha, during a ^oyage from England to Colombo,and on the second the steamship Ravenna, daring a voyage fromColombo to Marseilles, and a hotel at Marseilles and in Paris.
In her defence the respondent pleaded that the District Courthad not jurisdiction to entertain the suit. Upon the merits shedenied all three charges of adultery, and, with respect to the firstcharge, pleaded alternatively that it had been condoned by theappellant. Two of the other defendants, who are alleged to havebeen participant in her adulterous acts on the first and thirdoccasions, also lodged defences, denying the charges made againstthem, and pleaded that they were not subject to the jurisdictionof the Court. The defendant in the first charge also set up theplea of condonation.
The appellant is an Englishman by birth; and at the timewhen thiB action was instituted, although officially residentwithin the District of Matara, he admittedly retained, and stillcontinues to retain, his English domicile of origin. He hadpreviously brought a divorce suit, founded on the same chargesof adultery, and directed against the same parties, before theDivorce Court in England, and these proceedings appear to bestill in dependence. At the time when they were cited to appearin the District Court of Mdtara no one of the three persons, whoare co-defendants with the respondent, was resident in, or wasalleged by the appellant to have any connection with the Island.They are described in his plaint as “ of Calcutta. India,” and“ of London, England.”
The District Judge ruled that jurisdiction to proceed in thesuit was conferred upon him by section 597 of the Civil Procedure
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1896. Code, No. 2 of 1889, an enactment which their Lordships willPsxvy have occasion to notice more fully. The case accordingly wentCouncil, to trial before him ; and, on considering the evidence, he foundthat the first charge of adultery had been proved, but that it hadbeen condoned by the appellant, and that the second and thirdcharges had also been established. In respect of the latterfindings, he granted a decree nisi to become absolute in fonrmonths, unless good cause were shown against it. On appeal tothe Supreme Court that order was reversed, and the appellant'ssuit dismissed with costs.
Acting Chief Justice Lawrie and Acting Puisne JusticeBrowne, who constituted the Court of Appeal, based their judg-ment upon two independent grounds. They held, in the firstplace, that the Courts of Ceylon had no jurisdiction to dissolve amarriage between British or European spouses resident in theIsland. Such jurisdiction appeared to them to be expresslyexcluded by section 53 of the Royal Charter of the 18th April,1801, which enacted that the jurisdiction of the Supreme Courtof the Island, at that time the only Court competent to trymatrimonial causes, should be exercised “ towards and upon all“the Dutch inhabitants of the said town, fort, and district,“ according to the laws and usages in that behalf in force at the“time the said settlements, territories, and dependencies came“ into our possession; and towards and upon the said British“and Europeans, and licensed persons hereinbefore described,“resident in any the said settlements, territories, and depen-dencies, the Ecclesiastical law, as the same is now used and“ exercised in the Diocese of London in Great Britain.” Thatenactment applied to British residents in Ceylon the Matri-monial law of England as it existed in the year 1801; and if ithad stood unaltered, the conclusion of the learned Judges wouldhave been irresistible. They held, in the second place, that thesecond and third charges of adultery, which were subsequent tocondonation, had not been established by the evidence.
Their Lordships, in deciding this appeal, must observe thelimits which the law of Ceylon imposes upon the matrimonialjurisdiction exercisable by the tribunal before which the actionwas originally brought. It therefore becomes necessary toconsider whether the District Court of Matara was competent toentertain the action and to pronounce decree of divorce a vinculo.To that point, which is one of some importance to British andother European residents in the Island, the arguments of counselon both sides of the bar were exclusively directed.
Jurisdiction in matrimonial causes, which, by the Royal
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Charter of 1801, was vested in the Supreme Court of Judicature,has by subsequent legislation been extended to the District Courtsof the Island- The last of a series of enactments to the sameeffect iB to be found in section 597 of the Procedure Code of 1889,which provides that “ any husband or wife may present a plaint“ to the District Court within the limits of which he or she, as the“ case may be, resides, praying that his or her marriage may, by“ the law applicable in this Colony to his or her case, be dissolved.”The enactment, like those which preceded it, refers to procedureonly, and distributes the matrimonial jurisdiction which maybe competently exercised by its tribunals among the variousCourts of the Colony. The Judge of the District Court assumedthat it gave him jurisdiction to try the present case, but it isclear that neither section 597 of the Code, nor previous enactmentsto a similar effect, empowered him to entertain any divorce suitwhich was not previously cognizable by the Courts of Ceylon.
If section 53 of the Charter of 1801, upon which the learnedJudges of the Supreme Court relied, had continued in force,it would have been beyond the competency of the District Courtof Matara to give the appellant a more stringent remedy than aseparation a mensa et thoro. But it does not appear to have beenbrought under the notice of the Appellate Judges that the wholeclauses of the Charter of 1801, including section 53, were revokedand annulled by the Ceylon Charter of Justice of the 18thFebruary, 1833. Since that date there has been no legislationregulating the jurisdiction of the Courts of Ceylon in matrimonialcauses arising between British or European spouses. In thesecircumstances, it becomes necessary to consider, in the first place,what is the present law of the Island by which such jurisdictionis regulated; and, in the second place, whether, according to thatlaw, the present suit is maintainable.
The first of these questions appears to their Lordships to admitonly of one answer. After the annexation of the Dutch Settle-ments in the Island of Ceylon to the British Crown, a commissionwas granted on the 19th April, 1788, to Frederick North, appoint-ing him to be Governor and Commander-in-Ohief, and containinginstructions to him with respect to the administration of justiceand other matters. In pursuance of these instructions, the Gover-nor issued a Royal Proclamation, promulgated at Colombo on the23rd September, 1799, which declared that the administration ofjustice and police was thenceforth and during His Majesty’spleasure to be exercised by all Courts of Judicature, Civil andCriminal, “ according to the law's and institutions that subsisted“ under the ancient government of the United Provinces, subjeot
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“to such deviations and alterations by any of the respective“ powers and authorities hereinbefore mentioned, and to such“ deviations and alterations as We shall by these presents, or by“ any future Proclamation, and in pursuance of the authorities“ confided to TJs, deem it proper and beneficial for the purposes“ of justice to ordain and publish, or which shall or may hereafter“ be by lawful authority ordained and published.”
The Matrimonial law of the Colony, established by the Procla-mation of 1799, was superseded, or at least modified, in so far asit related to British and European residents, by the enactments ofthe Royal Charter of 1801. But it does not appear to their Lord-ships to admit of doubt that, as soon as these enactments wereswept away by the legislation of 1833, the Proclamation wasrestored to its original force, and the Matrimonial law applicableto British or European residents in Ceylon again became theRoman-Dutch law which had prevailed in the Colony before itsannexation.
Accordingly, the prejudicial question which their Lordshipshavi to decide is, whether the Roman-Dutch law, or any modifi-cation of it introduced into the Colony before the year 1798, givesthe Courts of the Island jurisdiction to dissolve a marriagecontracted in England by British subjects, who, though residentwithin the forum, still retain their English domicile. No authoritycan have a material bearing upon that point which does not relateto the dissolution of marriage ; because there are unquestionablyother remedies for matrimonial misconduct, short of dissolution,which, according to the rules of the jus gentium, may be adminis-tered by the Courts of the country in which spouses, domiciledelsewhere, are for the time resident. If, for instance, a husbanddeserts his wife, although their residence be of a temporarycharacter, these Courts may compel him to aliment her ; and, incases where the residence is of a more permanent character, andthe husband treats his wife with such a degree of cruelty as torender her continuance in his society intolerable, the weight ofopinion among international jurists and the general practice is tothe effect that the Courts of the residence are warranted in givingthe remedy of judicial separation, without reference to thedomicile of the parties. But the considerations which justifythe Courts of the residence in administering remedies for theprotection of mutual rights incidental to marriage, which do notinvolve disruption of the marriage bond, have little or no applica-tion to proceedings taken for the purpose of putting an end to themarriage, and remanding the spouses to the condition of singlepersons.
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In order to sustain the competency of the present snit, it isnecessary for the appellant to show that the jurisdiction assumedby the District Judge of Matara was derived, either from somerecognized principle of the general law of nations, or from somedomestic rale of the Roman-Dutch law. If either of these pointswere established, the jurisdiction of the District Court would beplaced beyond question ; but the effect of its decree divorcing thespouses would not in each case be the same. When the jurisdic-tion of the Court is exercised according to the rules of Internationallaw, as in the case where the parties have their domicile withinits forum, its decree dissolving their marriage ought to be res-pected by the tribunals of every civilized country. The opinionsexpressed by the English Common Law Judges in Lolley's case(2 Russ, and Ry. 237) gave rise to a doubt, whether that principlewas in consistency with the law of England, which at that timedid not allow a marriage to be judicially dissolved. That doubthas since been dispelled; and the law of England was, in theirLordships’ opinion, correctly 6tated by Lord Westbury in Shaw v.Gould (3 E. & Ap. 85), in these terms:—“ The position that the“tribunal of a foreign country having jurisdiction to dissolve the“marriages of its own subjects, is competent to pronounce a“ similar decree between English subjects who were married in“ England, but who before and at the time of the suit are per-“manently domiciled within the jurisdiction of such foreign“ tribunal, such decree being made in a bond fide suit without“ collusion or concert, is a position consistent with all the English“ decisions, although it may not be consistent with the resolution“commonly cited as the resolution of the judges in Lolley's case.”On the other hand, a decree of divorce a vinculo, pronounced bya Court whose jurisdiction is solely derived from some rule ofmunicipal law peculiar to its forum, cannot, when it trenchesupon the interests of any other country whose tribunals thespouses are amenable, claim extra territorial authority.
Mr. Mayue, in his elaborate and able argument for theappellant, did not assert the existence of any special rule in theRoman-Dutch law giving jurisdiction to entertain a divorce suitin such circumstances as occur in the present case. He maintainedthat, in addition to jurisdiction arising from the fact of thespouses having their domicile of succession within the territory,which he admitted to be universally acknowledged, the generallaw of nations recognizes that a concurrent and equally effectivejurisdiction to divorce is created by the spouses’ residence withinthe territory of such permanence as to constitute what has beentermed a “ matrimonial domicile,” although not of sufficient
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1896. permanence to fix their true domicile there. In support of thetheory of a matrimonial domicile, as distinguished from theCouncil, domicile of succession, the learned counsel relied mainly, if notexclusively, upon certain decisions by the Courts of England andScotland, which he represented as conclusive in his favour.Their Lordships will at once proceed to examine these authorities,beginning with the English cases which do not appear to themto be either consistent or satisfactory. The Scotch cases are not,in their Lordships’ opinion, more satisfactory than the English ;but, so far as they go, they have at least the merit of consistency.
The first in date of the English cases is Tollemache v. Tolle-mache (I S. & T. 557), which was decided by Williams, J., Martin,
, and the Judge Ordinary. The suit was for divorce at the instanceof the husband, who was throughout a domiciled Englishman.The parties- were first married at Gretna Green, and thereafterentered into a regular marriage in London in August, 1837. Fromthat date, with the exception of occasional visits to England andWales, they resided continuously in Scotland ; and on the 3rd ofJuly, 1841, the husband obtained a decree of divorce from theScotch Courts of adultery of the wife committed in Scotland.In her answer to the English suit, which was instituted eighteenyears afterwards, the wife also prayed the Court for a decree, declar-ing her marriage with the petitioner to be dissolved. The Courtgranted decree of dissolution, with the observation :—“ Sitting“ here as an English Court, (we cannot recognize that divorce“ (i.e., the Scotch) as putting an end to the marriage bond of a“ domiciled Englishman.”
The next case in order, Yelverton v. Yelverton (1 S. & T. 574),was a suit at an alleged wife’s instance for restitution of conjugalrights, which was dismissed by the Judge Ordinary. The hus-band, who was called as respondent, was not resident, and hadnever been domiciled in England.
Their Lordships have noticed these cases because they werefounded upon in the argument addressed to them. They needhardly observe that in neither of them was any question raisedin regard to matrimonial domicile. In Toll cm ache v. Tollemacheit might very well have been contended that four years’ residencethere have given the spouses a matrimonial domicile in Scotland ;but that view of the law does not seem to have occurred eitherto the parties or to the Bench.
In the next case, Brudie v. Brodie (2 S. & T. 259), the peti-tioner, being the husband, was resident, but had not his domicilein England. He had been married to the respondent in Tas-mania, and left her behind him in Melbourne, when he came to
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Great Britain. His wife never came to England, and the acts ofadultery charged in his petition were committed in the colony.In giving decree, the Court, consisting of the Judge Ordinary,with Wightman and Williams, J.J., observed “ We think that“ the petitioner was bond fide resident here, not casually, or as“ a traveller ; after he became resident here, his wife was carry-“ ing on an adulterous intercourse in Australia. He is, therefore,“ entitled to a decree nisi for a dissolution of his marriage.”These observations go the whole length of affirming that theresidence of the husband in a country where he has not a domi-cile, if such residence be not casual or that of a traveller, givesthe Courts of that country divorce jurisdiction over him, andalso over his wife, although she should continue to reside in thecountry where they both have their domicile of succession.
In Manning v. Manning (2 P. & D. 223), the Judge Ordinarydismissed a petition for divorce -at the instance of an Irishhusband, upon the ground that he was not a bond fide resident inEngland.
The next authority adduced for* the appellant was Wilson v.Wilson (2 P. & D. 435), which their Lordships notice because ofits connection with a Scotch case between the same parties towhich they will have occasion to refer. At the time of theirmarriage in 1861 both the spouses had their domicile of origin inScotland, and they continued to reside thereuntil November, 1866,when the husband discovered that the lady had been guilty ofadultery. He then went to England and lived there with hismother until April, 1871, when he presented his petition to theJudge Ordinary. During its dependence he brought an action inthe Court of Session, and obtained a decree of divorce, after ithad been found that he was still domiciled in Scotland. LordPenzance, upon the evidence before him, held that the petitionerhad, in April, 1871, acquired an English domicile, and he accord-ingly pronounced a similar decree, upon the ground that theScotch Courts had no jurisdiction. No question as to what iscalled matrimonial as distinguished from true domicile was raisedin the case. The petitioner was admittedly resident in England,and was found to have his domicile there ; but Lord Penzance, indelivering judgment, expressed his opinion to the effect thatactual domicile afforded the only true test of jurisdiction in suchcases.
The last, and not the least important of the English authoritiesrequiring to be considered is Niboyet v. Niboyet (3 P. D. 1).Shortly stated, the facts were these. A Frenchman and anEnglishwoman were married at Gibraltar in the year 1856. In 1875
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the hnsband went to Newcastle-on-Tyne, and continued to re«idethere until October, 1876, when his wife filed a petition in theDivorce Division of the High Coart of Justice, alleging adultery,coupled with desertion, for two years and upwards. It wasadmitted that the respondent, being in the Consular service ofFrance, had never lost his domicile of origin. The Judge Ordi-nary (Sir R. Phillimore) held that he had no jurisdiction todissolve the marriage (3 P. D. 52). On appeal his judgment wasreversed by James and Cotton, L.J.J., the present Master of theRolls (then Lord Justice Brett) dissenting. The main reasonassigned for their decision by the learned Judges of the majoritywaB that, before the Act of 1857 became law, the petitioner wouldhave been entitled to Bue her husband in the Bishop’s Court,although he was not domiciled in England, and to ask either for >restitution of conjugal rights, or for a divorce a mensd et thoro;and in either case for proper alimony ; and consequently that,after the Act of 1857 passed, jurisdiction in divorce might beexercised in the same circumstances. There appears to theirLordships to be an obvious fallacy in that reasoning. It is notdoubtful that there may be residence without domicile sufficientto sustain a suit for restitution of conjugal rights, for separation,or for aliment; but it does not follow that such residence mustalso give jurisdiction to dissolve the marriage. Their Lordshipscannot construe section 27 of the Act of 1857 as giving theEnglish Court divorce jurisdiction in all cases where any othermatrimonial suit would previously have been entertained in theBishop’s Court.
The only Scotch authority cited by Mr. Mayne was Pitt v. Pitt(1 Sess. Ca. 3rd series 106, and 4 Macq. Ap. Ca. 627). But inorder to ascertain whether, and if so to what extent, the doctrineof matrimonial domicile is regarded in Scotland as a good founda-tion for the exercise of divorce jurisdiction, their Lordships findit necessary to refer to the other cases in which the doctrine hasbeen applied or discussed by a Scotch Court. Although theMatrimonial Courts of Scotland had previously exhibited no lackof ingenuity in discovering grounds for exercising divorce juris-diction in cases where the parties had their domicile elsewhere,it was not until the year 1862 that the idea of a matrimonialdomicile, other than trne domicile, arid resting upon a somewhatindefinite permanency of residence, which had been fore-shadowed in Shields v. Shields (4 Sess. Ca. 2nd series 142), wasfirst formulated and applied in Jack u. Jack (24 Sess. Ca. 2ndseries 467),
In that case both spouses were Scotch, and after their marriage
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they continued to live together in Scotland until the year 1855,when the husband went to America and became a Minister of theGospel at Newburgh, in the State of New Tork, the wife continuingto reside in Scotland. Four and a half years afterwards thehusband, who was still in America, brought his action founded onadultery committed by his wife in Scotland. It was met by theplea of no jurisdiction, and was heard before twelve Judges of theCourt of Session, who upheld the jurisdiction of the Court by amajority of eleven to one. The late Lord President Inglis (at thattime Lord Justice Clerk) went upon the ground of matrimonialdomicile, which he thus defined :—“ The true inquiry, I appre-“ hend, in every such case is, where is the home or seat of the“ marriage for the time ; where are the spouses actually resident“ if they be together; or, if from any cause they are separate,“ what is the place in which they are under obligation to come“ and renew, or commence, their cohabitation as man and wife ? ”Five other Judges took substantially the same view expressed indifferent language. Lord President McNeill, with two of theirLordships, concurred in the judgment, holding that the domicileof the married pair had never been transferred to any othercountry. Lord Einloch and Lord Jerviswoode intimated theiropinion that the true domicile of the husband was the only test ofjurisdiction, but held that the husband was not shown to have losthis Scotch domicile. Lord Deas held that there was no jurisdiction,because the pursuer had acquired a new domicile in the UnitedStates. With regard to the matrimonial domicile, which foundfavour with some members of the Court, his Lordship observed :—“ Neither can I solve this case by what has been sometimes called“ the domicile of the marriage. The phraseology appears to me“ to be calculated to mislead. It is figurative, and wants judicial“ precision. There is no third domicile involved apart from the“ domicile of the husband and the domicile of the wife. Domicile“ belongs exclusively to persons. Having ascertained the domicile“ of the husband and the domicile of the wife, the inquiry into“ domicile is exhausted.”
The doctrine of matrimonial domicile, as explained by the'Lord Justice Clerk in Jack v. Jack, was subsequently applied byhis Lordship and the other Judges of the Second Division inHume v. Hume (24 Sees. Ca. 2nd series 1342), where they granteda decree of divorce for adultery to a wife whose husband hadbeen in America for seventeen years, and was living with a womanwhom he had married there.
The next case, which is also the last case in which the so-calledmatrimonial domicile has been made the ground of divorce
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1895.jurisdiction in Scotland, is Pitt v. Pitt, already mentioned. In tbat
Privy case, Colonel Pitt, a domiciled Englishman and married there,Council. went to Scotland, chiefly for the purpose of avoiding his creditors,leaving his wife in London. With the exception of occasionalvisits, in disguise, to relatives in England, he continued to residein the Hebrides for six years, and then brought an action fordivorce on the ground of adultery. His wife, who had neverbeen in Scotland, appeared to defend, and pleaded that, herhusband being domiciled in England, the Court of Session hadno jurisdiction. After proof, the Lord Ordinary (Kinloch) foundthat the pursuer had acquired a domicile in Scotland, and gavehim decree of divorce. His decision was affirmed by the SecondDivision of the Court, who, differing from him on that point,came to the conclusion that the pursuer still retained his Englishdomicile, but held that his residence in Scotland had been ofsuch a character as to make that country the domicile of themarriage. On appeal to the House of Lords, these judgmentswere reversed, and the defender assoilzied from the conclusionsof the action. At the bar of the House, the pursuer’s counsel(Sir R. Phillimore, then Queen’s Advocate, and Sir Hugh Cairns)intimated that “they had come to the resolution of abandoning“ as untenable the ground on which the Second Division of the“ Court of Session had rested their decision, namely, that divorce“ a vinculo might be validly granted to strangers not domiciled,“ though temporarily resident, within the jurisdiction.” Theyaccordingly confined their argument in support of the judg-ments appealed from to an endeavour to show that Colonel Pitthad acquired a Scottish domicile. The Lord Chancellor (West-bury), in delivering judgment, referred to the course taken bycounsel in these terms :—“ If he was not domiciled in Scotland“ to all intents and purposes, having relinquished his original“ domicile and acquired a domicile in Scotland, then by the con-“ cession of the counsel at the bar, a concession which is, I trust,“ in the opinion of your Lordships, quite in accordance with the“ law of the case, it will be impossible to maintain the order“which has been pronounced in the Court below.” NeitherLord Chelmsford nor Lord Kingsdown, who sat with the LordChancellor, took any exception to that statement.
After the observations made by Lord Westbury in Pitt v. Pitt,from which the other noble and learned Lords present did notexpress dissent, it would be very rash to affirm that, according tothe law of Scotland, mere matrimonial domicile affords anyground for jurisdiction to divorce. There is ho trace of thedoctrine to be found in the Institutes of Scottish law, or in the
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earlier decisions of the Coart; and, during the thirty-one yearswhich have elapsed Bince the case of Pitt v. Pitt was decided bythe House of Lords, the divorce jurisdiction of the Court ofSession has never been exercised on that ground. It has, how-ever, been twice referred to since that date—first, in the year 1872,in Wilson v. Wilson (10 Sets. Ca. 3rd series 613); and again, tenyears afterwards, in Stavert v. Stavert (9 Sess. Ca. 4th series529).
In Wilson v. Wilson the parties were the same as in theEnglish case already noticed. On his finding that his Englishsuit was met by the plea that he retained his Scottish domicile,the husband brought an action of divorce in the Court of Session,and was there met by the plea that he had acquired an Englishdomicile. The Lord Ordinary, whose judgment was affirmed bythe First Division, found that he was domiciled in Scotland, and,notwithstanding the dependence of the English suit, granteddecree of divorce. In the note appended to his judgment theLord Ordinary (Ormidale) observed, that “ having regard to the“ judgment in the House of Lords in Pitt v. Pitt in April, 1864,“ any such thing as a consistorial or matrimonial domicile must“ be held to be unknown to the law.” In delivering the judg-ment of the Inner House, Lord President Inglis said :—“ In cases“ of divorce, jurisdiction depends upon domicile, and the“ domicile in this case is here. And if the domicile, and conse-“ quently the jurisdiction, is here, they can be nowhere else. I“ have always been of opinion, as I expressed myself in the case“ of Pitt—and I have never seen any reason to change that“ opinion—that for the purposes of divorce there may be a matri-“monial domicile, differing from the absolute domicile which“ will rule succession.” Their Lordships find it difficult toreconcile these statements. If there really were such a thing asa matrimonial domicile recognized by general law, it is not easyto comprehend why the jurisdiction could be nowhere else thanin Scotland. On that assumption the pursuer had certainlyacquired a matrimonial domicile in England by five years’continuous residence there ; and, in deference to internationalrules, the Scotch Court ought not to have entertained the samelis which was already pending in the proper Court of the matri-monial domicile.
In Stavert v. Stavert the Lord Ordinary refused to grant adivorce to a foreigner who had come to Scotland with his para-mour and had lived there for five months, with the sole objectof obtaining a divorce from his wife. The pursuer maintained,alternatively, that lie had acquired either a real domicile or a
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1895. matrimonial domicile in Scotland. The Lord President (Inglis)
Pbivy held that he was possessed of neither; and with reference toCouncil, matrimonial domicile his Lordship said :—“ There has been a“ good deal of speculation on this point, but fortunately it is not“ necessary to deal with the question here. It has not yet been“ decided in the Court of last resort.” Lord Deas reiterated theviews which he had expressed in Pitt v. Pitt; and Lord Shand,dealing with the same subject, said :—“ I have great difficulty in“ finding any sound principle of general application which would“ induce foreign Courts to give weight to a decree in this country“ based on such jurisdiction ; and I have, further, great difficulty“ in finding any rule or standard as to the nature and extent of“ the residence which would be necessary or sufficient to found“ such a jurisdiction.”
When carefully examined, neither the English nor the Scotchdecisions are, in their Lordships’ opinion, sufficient to establishthe proposition that, in either of these countries, there exists arecognized rnle of general law, to the effect that a so-calledmatrimonial domicile gives jurisdiction to dissolve marriage.
Tollemache v. Tollemache, which was decided by three Judgesin 1859, shortly after the passing of the Divorce Act, appears tobe an authority to the contrary. The learned Judges sustainedthe jurisdiction of the English Court, which was the forum ofthe husband’s domicile, and disregarded as incompetent a decreeof the Court of Session dissolving his marriage, although he hada matrimonial domicile in Scotland, where he had bond fideresided for four years with his wife, neither casually, nor as atraveller. Then in Brodie v. Brodie, in the year 1861, threelearned Judges decided the opposite, holding that residence ofthat kind, which had been found in Tollemache v. Tollemache tobe insufficient to give jurisdiction to a Scotch Court, where thedomicile was English, was, nevertheless, sufficient to give juris-diction to themselves where the domicile was Australian. InWilson v. Wilson jurisdiction was sustained by Lord Penzanceupon the ground that the petitioner had acquired an Englishdomicile, with an expression of opinion by his Lordship thatsuch domicile ought to be the sole ground of jurisdiction todissolve marriage. In Niboyet v. Niboyet, Sir Robert Phillimoreexpressed a similar opinion, and dismissed the suit of the peti-tioner, who had a matrimonial domicile in England, which fullyanswered the definition of such domicile given either in Brodiev. Brodie or in Pitt v. Pitt. His decision was, no doubt, reversedin the Court of Appeal ; but it had the support of the presentMaster of the Rolls, and their Lordships have already pointed
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out that the judgment of the majority was mainly, if notaltogether, based upon a reason which will not bear scrutiny.
The Scotch decisions appear to their Lordships to be equallyinefficient to show that a matrimonial domicile is a recognizedground of divorce jurisdiction. So far as they go they areconsistent enough, but the doctrine appears to have had a verybrief existence, because the three cases in which it was appliedall occurred between the 7th February and the 14th Decemberin the year 1862. Although, owing to the course taken by theappellant’s counsel in Pitt v. Pitt, the House of Lords had notan opportunity of expressly deciding the point, there can be littledoubt that the approval of the course adopted by counsel, whichwas openly expressed by Lord Westbury, has had the effect ofdiscrediting the doctrine in Scotland ; and it is impossible toaffirm that the Court of Session would now give effect to it. Theeminent Judge, who in 1862 was the first to give a full and clearexposition of the doctrine of matrimonial domicile, spoke of it,in the year 1882, not as a doctrine accepted in the law of Scotland,but as matter of speculation.
It is a circumstance not undeserving of notice that the learnedJudges, whether English or Scotch, who have expressed judicialopinions in favour of a matrimonial domicile, have abstainedfrom reference to those treatises on International law which aregenerally regarded as authoritative, in the absence of anymunicipal law to the contrary. The reason for their abstinenceis probably to be found in the circumstance, that nothing couldbe extracted from these sources favourable to the view whichthey took. Their Lordships are of opinion that in deciding thepresent case, on appeal from a Colony which is governed by theprinciples of the Roman-Dutch law, these authorities ought not tobe overlooked.
Huber (Lib. 1, til. 3, a. 2. De Gonfl. Leg.) states the rule ofInternational law in these terms :—“ Hectores imperiorum id“ comiter agunt, ut jura cujuaque populi intra terminos qua“ exercita, teneant ubique suam vim, quatenus nihil potestati aut“juri alterius imperantis ejusque civium prcejudicetur." Thatpassage was cited with approbation by Lord Cranworth and LordWestbury in Shaw v. Gould (3 E. and I. Ap. 72 and 81). Tothe same effect, but in language more pointed, is the text ofRodenburg (De Stat. Divers, tit. 1, c. 3, s. 4) cited in the same caseby Lord Westbury :—“ Unicum hoc ipsa ret natura ac necessitas“ invexit, ut cum de statu et conditions hominum quceritur, uni“ solum modo Judici, et quidem Domicilii, universum in iUd jus“ sit attributum." The same rule is laid down by Bar, the latest
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1895. Continental 'writer on the theory and practice of International
purr private law. He says (Sec. 173, Gillespie's translation, p. 382)Council. «that in actions of divorce—unless there is some express enact-“ ment to the contrary—the Judge of the domicile or nationality“ is the only competent Judge.” And he adds :—“ A decree of“ divorce, therefore, pronounced by any other Judge than a Judge“ of the domicile or nationality, iB to be regarded in all other“ countries as inoperative.”
There can, in their Lordships’ opinion, be no satisfactory canonof International law regulating jurisdiction in divorce caseswhich is not capable of being enunciated with sufficient precisionto ensure practical uniformity in its application. But any judi-cial definition of matrimonial domicile which has hitherto beenattempted has been singularly wanting in precision, and not inthe least calculated to produce a uniform result. The definitionsgiven in Brodie v. Brodie and in Pitt v. Pitt appear to theirLordships to be equally open to that objection. Bond fide resi-dence is an intelligible expression, if, as their Lordships conceive,it means residence which has not been resorted to for the merepurpose of getting a divorce which was not obtainable in thecountry of domicile. Residence which is “ not that of a traveller ”is not very definite ; but nothing can be more vague than thedescription of residence which, not being that of a traveller, isnot to be regarded as “ casual.” So also the place where it is theduty of the wife to rejoin her husband, if they happen to beliving in different countries/is very indefinite. It may be herconjugal duty to return to his society although he is living as atraveller, or casually, in a country where he has no domicile.Neither the English nor the Scotch definitions, which are to befound in the decisions already referred to, give the least indica-tion of the degree of permanence, if any, which is required inorder to constitute matrimonial domicile, or afford any test bywhich that degree of permanence is to be ascertained. The intro-duction of so loose a rule into the jus gentium would, in allprobability, lead to an inconvenient variety of practice, and wouldoccasion the very conflict which it is the object of Internationaljurisprudence to prevent.
Their Lordships attach great weight to the consideration that thetheory of matrimonial domicile for which the appellant contendshas never been acoepted in the Court of last resort for Englandand Scotland. The matter does not rest there, because thetheory is not only in direct opposition to the clear opinionexpressed by Lord Westbury in Pitt v. Pitt, but appears to theirLordships to be at variance with the principles recognised by
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noble and learned Lords in Dolphin v. Robins (7 H. L. Ca. 390)and in Shaw v. Gould (3 E. A I. Ap. 55). It is true that in thesecases, and especially in Dolphin v. Robins, there waB ground forholding that the spouses had resorted to a foreign country and aforeign tribunal, in order to escape from the law and the Courts oftheir English domicile. But in both, the international principle,upon which jurisdiction to dissolve a marriage depends, was con-sidered and discussed ; and the arguments addressed to theirLordships in favour of matrimonial domicile appear to them torun counter to the whole tenor of the observations which weremade by noble and learned Lords in these cases. In Dolphin v.Robins, Lord Cranworth stated that “ it must be taken now as“ clearly established that the Scotch Court has no power to“dissolve an English marriage, where, as in this case, the“ parties are not really domiciled in Scotland, but have only“ gone there for such a time as, according to the doctrine of the“ Scotch Courts, gives them jurisdiction in the matter.” In Shaivv. Gould, the dicta of noble and learned Lords upon the point raisedin this appeal were even more emphatic. I^ords Cranworth andWestbury expressed their entire approval of the doctrine laid downby Huber and Rodenburgh in those passages which have alreadybeen cited. Their Lordships did not go the length of saying thatthe Courts of no other country could divorce spouses who weredomiciled in England ; but they held that the Courts of Englandwere not bound, by any principle of International law, torecognize as effectual the decree of a foreign Court divorcingspouses who, at its date, had their domicile in England. Theother noble and learned Lords who took part in the decisionof Shaw v. Gould were Lords Chelmsford and Colonsay. LordChelmsford did not express any opinion upon the subject ofmatrimonial domicile. Lord Colonsay rested his judgment uponthe fact that the spouses had resorted to Scotland for the verypurpose of committing a fraud upon the law of their Englishdomicile ; but he indicated an opinion that, in the absence of suchfraudulent purpose, they might have obtained a valid divorce inScotland, after a residence in that country which was insufficientto change their domicile of succession.
Their Lordships have in these circumstances, and upon theseconsiderations, come to the conclusion that, according to Inter-national law, the domicile for the time being of the married pairaffords the only true test of jurisdiction to dissolve their mar-riage. They concur, without reservation, in the views expressedby Lord Penzance in Wilson v. Wilson (1 P. and D. 442), whichwere obviously meant to refer, not to questions arising in regard
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to the mutual rights of married persons, but to jurisdiction inthe matter of divorce : —“ It is the strong inclination of my own“ opinion that the only fair and satisfactory rule to adopt on“ this matter of jurisdiction is to insist upon the parties in all“ cases referring their matrimonial differences to the Courts of“ the country in which they are domiciled. Different commu-“ nities have different views and laws respecting matrimonial“ obligations, and a different estimate of the causes which should“ justify divorce. It is both just aud reasonable, therefore, that“ differences of married people should be adjusted in accordance“ with the laws of the community to which they belong, and“ dealt with by the tribunals which alone can administer those“ laws. An honest adherence to this principle, moreover, will“ preclude the scandal which arises when a man and woman are“held to be man and wife in one country, and strangers in“ another.”
Their Lordships will, therefore, humbly advise Her Majesty toaffirm the order appealed from. The appellant must pay to thefirst and fourth respondents their costs of this appeal.