Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. collected by JAMES BURNETT, LORD MONBODDO.

Forbes
v.
Lady Strathmore

Date: 23 November 1756

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[Elch. No. 9, Proof.]

In this case, which was a declarator of marriage against the lady, the President gave it as his opinion, that if a marriage was made in a foreign country, in such a way as to be a valid marriage by the law of Scotland, though not by the law of the country where it was celebrated, it will be, to all intents and purposes, a good marriage in Scotland.

In this case the marriage was said to have been clandestinely made in Holland, without proclamation of banns, or the parties acknowledging, before a magistrate, that they were married persons; which, by the law of that country, is a null marriage. This marriage, nevertheless, the President said was a good marriage in Scotland, in the same manner as a testament made in Friesland, with only two witnesses, where the law of the country requires seven, would be a good testament in Scotland. And with him agreed the rest of the Lords. He further said, that nothing more was wanted to make a marriage, by the law of Scotland, but the deliberate consent of parties; and if that was fully proved, though no copula followed, it was a marriage. Vide 29th June 1756, Malcolm.

N.B. The rule laid down by the President, with respect to marriage, will extend to all contracts; so that the rule of the lex loci, in contracts, comes to this, That a contract made in a foreign country is valid two ways,—if it be made according to the laws of the country where the parties were at the time of contracting, or if it be made according to the laws of the country in which it is sued upon. This rule, therefore, of the lex loci may support contracts that are not made according to the laws of the country where execution is demanded upon them, but can never destroy contracts that are made according to the laws of that country.