Scottish Court of Session Decisions

In August 1866 Robert Carswell, a law bookseller in Toronto, married, in Ontario, Martha Swan. Both parties were born in Canada, and at the date of the marriage were domiciled in Canada. They lived together as husband and wife till 1873, in which year differences on religious matters arose between them, and Mrs Carswell, apparently in consequence of these differences, suddenly left her husband's house, and after residing in lodgings in Toronto for several weeks, during which time she was visited by her husband, went to her father's house in the town of London, about 120 miles from Ontario, taking with her the two children of the marriage. Mr Carswell made several attempts to induce her to return to his home, both while she was thus residing in lodgings and while she was residing in London, and in Rochester in New York State, to which place she went for a time. In December 1874 he raised an action against her in the Court of Common Pleas of Ontario, to obtain the custody of his children, which action she defended. While this suit was pending, the parties, at the suggestion of the Court, met at the house of a friend for the purpose of terminating the suit if possible by a reconciliation. At this meeting a reconciliation was found impossible, as Mrs Carswell refused to return to her home, and the Court therefore pronounced judgment, giving to Mr Carswell the custody of the children. From the date of this meeting (January 1875) Mr Carswell never had any communication from his wife with the exception of a set of verses of a somewhat incoherent character addressed to bim in February 1879.

In October 1879, after a preliminary visit in the early part of the same year, Mr Carswell came to Scotland, bringing with him the two children above mentioned and a daughter by a former marriage. He took and furnished a house in Edinburgh, took a lease for five years of a shop in Edinburgh, and purchased with the view of carrying on his business as a law bookseller in that shop a law library and the goodwill of a bookseller's business from which the proprietor was retiring. After thus taking up his residence in Edinburgh, he attempted by a letter to his wife, dated 5th December 1879, which he sent to the care of a person whom he believed to be in correspondence with her, to establish communication with her with the view of ascertaining whether she would join him in Scotland. He also attempted by means of advertisements in various newspapers published in parts of America to which he had ascertained that she had gone, to learn where she was. No answer was received to these inquiries.

On 28th July 1880 he raised this action against her, concluding for divorce on the ground of desertion. The summons was served personally upon the brother and sister of the defender, of whom the former resided in California, the latter in Canada.

The pursuer, after setting forth the facts as detailed above, pleaded—“(1) On the facts stated, and in particular the pursuer having acquired a Scotch domicile, the defender is subject to the jurisdiction of the Court of Session. (3) The defender having been guilty of wilful and malicious non-adherence to and desertion of the pursuer for the space of four years, the pursuer is entitled to decreet of divorce as concluded for.”

The defender did not appear.

The pursuer having moved the Lord Ordinary to hold the summons relevant and to allow a proof, his Lordship reported the cause to the Second Division, with this note—“The Lord Ordinary reports this cause because it appears to him that the allegations of the pursuer disclose a case of an unnatural character, and raise questions of importance which in the present state of the authorities ought not to be decided in favour of the pursuer without the sanction of the Court. It was admitted by the pursuer's counsel that no case could be cited in which an action of divorce for desertion had been sustained against a defender who has never been in Scotland, and who, so far as appears, has had no notice of her husband's removal to this country, and of his requirement that she shonld here give her adherence to him.

“According to the averments in the condescendence, the pursuer and defender were married in Canada in 1866. Neither of the parties appears to have had any connection with Scotland, either at that time or during their cohabitation as married persons. Their residence from the time of the marriage down to 1873 was in Toronto, where the pursuer carried on business as a law bookseller. In 1873 the defender separated herself from her husband, and he states that although he subsequently saw her and cohabited with her in a lodging which she had taken, she declined all proposals that she should return to live with him. In 1875 he sued her in the Courts of Toronto for the custody of two children of the marriage. At that time, therefore, he appears to have recognised

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her as having in Canada a separate persona standi in judicio. An attempt was made at that time, he says, at reconciliation, but she was irreconcilable, and from that time he has not seen her. The only communication which he has since received from her is the letter, or sheet of verses, dated from St Louis, Missouri, in February 1879. In 1879 he came to Edinburgh, and commenced business there as a law bookseller. He produces a contract of copartnership, from which it appears that the business in Edinburgh is a branch of the business of a Toronto copartnership to which he transferred his business in Canada, and of which he is still the leading partner. He alleges, however, that it is his intention to reside permanently in Edinburgh, and that he has thus acquired a Scotch domicile. He has resided in Edinburgh since October 1879. His wife appears never to have been in Scotland, and he alleges, notwithstanding strenuous efforts, that he has been unable to ascertain her present residence. Certain documents have been produced by him in support of this allegation, which may be held to afford prima facie evidence that she was last heard of in California, working in a photographer's establishment, and that his agents in America have failed to make delivery to her of a letter dated 21st May 1880 requiring her to come to Scotland and live with him as his wife.

In this state of matters it is obvious that the question whether the non-adherence of the wife has resulted from ‘malicious and obstinate defection’ within the meaning of the statute of 1573, or whether she can allege and establish a ‘reasonable cause’ for it, is one which cannot very conveniently be tried in this Court; indeed, it was stated that most of the evidence would have to be taken by commission; and probably the only evidence that would be taken here would be that of the pursuer himself. It was argued, however, by the counsel for the pursuer, that if he should prove his possession now of a Scotch domicile, this Court has jurisdiction in the cause, by reason of the domicile of the wife following that of the husband; and if it had been clear that the matter of jurisdiction in such a case depends exclusively upon the present domicile of the husband, and that the pursuer's allegation on that subject is sufficient, the Lord Ordinary would have allowed proof of the averments bearing on that point. It is here, however, that some of the authorities to which the Lord Ordinary is about to refer raise serious difficulty.

In the first place, assuming that the pursuer could establish that he has acquired a Scotch domicile, it appears to be doubtful whether the jurisdiction in such a cause against a wife depends entirely upon the domicile of the husband. In the case of Pitt v. Pitt, on appeal to the House of Lords ( 4 Macq. 627, and 2 Macph., H.L. 32), the Lord Chancellor (Westbury), after stating the grounds upon which in his judgment a Scotch domicile had not been established, added—‘If it had been necessary (which I trust it will not be) to arrive at a different conclusion as to the fact of his (the husband's) domicile, I should still have had the greatest possible difficulty in holding that the domicile of the husband was in a case of this kind to be regarded in law as the domicile of the wife, by construction or by attraction, so as to compel the wife to follow the husband, and to become subject, for the purpose of divorce, to the jurisdiction of the tribunal of any country in which the husband might choose, even for that purpose alone, to fix and to declare that he intended to acquire an absolute domicile.’ The Lord Ordinary is of opinion that the difficulty here pointed out is one which has been recognised in the law of Scotland, and which affects in a very special manner divorce on the ground of desertion, as against a wife who has never been in Scotland, and whose non-adherence has taken place in a foreign country to which the married pair have always hitherto belonged. In the case of Ringer v. Churchill ( 2 D. 307), Lord Moncreiff explained very fully the necessity of not pushing too far the presumption of the law that the wife's domicile follows that of the husband. And in the case of Jack v. Jack (Feb. 7, 1862, 24 D. 467) the opinion of the Lord President, and of Lords Ivory and Curriehill, contains the following passage:—‘The general rule that the domicile of the wife follows that of the husband is not absolute, universal, or invariable; and it has never been applied to such a case as the present. It is truly inapplicable to such a case. The husband here did not transfer, or attempt or intend to transfer, to any other country the home or domicile of the married pair which had been established in this country, and which, being in this country, made the Court of this country the proper forum for trying any action to be brought for dissolution of the marriage. In that respect the condition of matters continued unaltered, with the acquiescence of both parties, until the present action was raised.’ Lords Neaves and Mackenzie in the same case stated their opinion to be that no Court can entertain an action of divorce except one which has power to deal with the marriage of the parties, and to affect the status of both of them as persons subject to its jurisdiction; and in that view, dealing with a case in which the wife remained in Scotland, and the pursuer was in America, admittedly animo remanendi, they thought it doubtful if the wife ‘could be subjected to the jurisdiction of another country where she has never resided, and in which the marriage can never be said to have subsisted.’ In the earlier case of Shields v. Shields ( 15 D. 142) the same view was expressed by the Lord Justice-Clerk, and the other Judges concurred with him. That was a case similar to Jack v. Jack. The husband, pursuer, was alleged to have acquired a domicile in America, and his wife, who had been left in Scotland, pleaded that as her domicile followed his, the Scotch Courts had no jurisdiction. The Lord Justice-Clerk said—‘This plea rests entirely on the ground assumed, viz, that the domicile of the husband not only is in all circumstances to be that in which it is competent for the husband to cite the wife, but the only forum in which she is called upon to answer to a suit at the instance of the husband. I think these are not conclusive propositions. The ground adopted by the defender seems to arise from a misconception of the case of Warrender, and an unwarranted application of some expressions in the opinions stated in that case. That case lays down, no doubt, the general proposition that the proper domicile of the husband is the domicile of the wife, and that though she has left him, and is living abroad, he shall not be deprived thereby

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of the remedies against her competent to him by the laws of his own country. But that proposition was stated in reference to a case in which the husband continned in the original domicile of the spouses as married parties, and by the law of which country the wife's provisions, in case of his death, were secured. The proposition was not laid down in an abstract manner, to the effect or with the intention of establishing that in all circumstances, and whenever a husband chooses to leave his wife behind him in their native country, and to remove to different parts of the world, that the wife is bound to follow him, and meet in that country in which he finds it most easy to obtain a divorce, or that such foreign country is the only forum in which it is competent for him to proceed against her; and accordingly, when the case of Warrender was quoted in one of the former cases to establish such a proposition, Lord Mackenzie at once corrected the error, and said he drew no such consequence from it.’

In short, according to the views expressed in these cases, the domicile of the husband cannot be said to be the domicile of the wife to the effect of founding jurisdiction in an action of divorce against her, unless the place where that constructive domicile is situate is, in the words of Lord Mackenzie in the case of Ringer v. Churchill, ‘the place where the wife may reasonably be held bound to be present and to answer to all actions against her.’

If any effect is to be given to these views, and if the difficulty stated by Lord Westbury in the case of Pitt v. Pitt has any foundation in law, the Lord Ordinary is of opinion that the present action cannot be sustained. He thinks it impossible to hold, upon the allegations in this summons, that Scotland is the place where the pursuer's wife may reasonably be expected to be present and to answer to an action at the pursuer's instance, and more especially to an action of divorce on the general ground of desertion under the Statute of 1573. For although such an action now proceeds without any previous process of adherence (that process being dispensed with by the Conjugal Rights Act 1861), the first point to be established is the breach of the obligation to adhere. In such a case the question is, as stated by Lord Fullerton in Gordon v. Gordon ( 9 D. 1293), ‘Is this a Scotch desertion or not?’ In this case, not only has the defender never been in Scotland, but the pursuer himself has been here for little more than a year. His wife remains abroad, where she had been living separate from him for many years. She knows nothing of his removal to Scotland, or of his arrangements for that purpose. In such a case the difficulty of sustaining the constructive domicile as Sufficient to found jurisdiction ratione domicilii appears very clearly, and if the circumstances of the case of Pitt v. Pitt suggested the point, the Lord Ordinary thinks it worthy of consideration here before the forum is sustained.

The Lord Ordinary was referred to the case of Warrender, 2 Sh. and M'L. 1541, and to the opinion of Lord Penzance in the case of Wilson v. Wilson ( 2 L.R. Prob. and Div. Cases, 435), as contrasted with the judgment of the Court of Session in a case between the same parties, reported in Macpherson's Reports, vol. x., p. 573. It was contended that these authorities prove that the present domicile of the husband is the only question in all cases. The authorities already mentioned seem to establish that the case of Warrender does not support this contention, and it is indeed difficult to apply to a case like the present the observations made in a case where Scotland was the actual domicile of the wife. For Lady Warrender had married into Scotland. Her husband was throughout the married life of the parties a domiciled Scotchman. Her residence in England was under a revocable contract of separation. In the present case the home of the parties is in Canada, and although it is alleged by the pursuer that he has acquired recently a Scotch domicile, he does not say that his wife is aware of his removal to Scotland. Her refusal to live with him when his home was in Canada seems to have been acquiesced in, and the letter written by him since he came to Scotland has not been delivered.

With regard to the judgment of Lord Penzance in the case of Wilson, the Lord Ordinary of course recognises it as of high authority in the law of England. But there is nothing in it which can justify him in declining to recognise as of higher authority in Scotland the judgment of Lord Ormidale, unanimously affirmed by the Judges of the First Division of the Court. Nor can he hold that the rule stated by Lord Penzance in that case, assuming it to have been correctly applied to the circumstances of Mr and Mrs Wilson, is at all applicable to the case presented by the present pursuer. The statement of Lord Penzance was as follows:—‘The only fair and satisfactory rule 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 communities have different views and laws respecting matrimonial obligations, and a different estimate of the causes which should justify divorce. It is both just and reasonable, therefore, that the 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 these laws.’ The rule so stated does not differ substantially from the rule applied in Shields v. Shields and Jack v. Jack. It assumes that both parties have an actual domicile in one country, and that both are de facto members of the community to the tribunals of which an appeal is made. In the present case the defender is not a member of that community. She has never de facto belonged to Scotland, or been subject to the laws of Scotland. If she has a domicile here by reason of her husband having come here in 1879, it is a mere legal fiction, and not at all the kind of domicile which Lady Warrender had. Actual jurisdiction over her person this Court has none, and if it could affect her status by giving decree of divorce in terms of the conclusions of the present summons, the exercise of such a power, at the instance of the pursuer and in the circumstances stated, would be altogether without example in the law of Scotland.

I. This leads the Lord Ordinary to notice, in the second place, another difficulty in the way of sustaining the present action, The allegations disclose no case of Scotch desertion. Divorce for desertion is in Scotland founded on statute.

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The statute is applicable to Scottish spouses. It used to be thought that the only persons who could be sued in the process of adherence ‘are such as continue within the kingdom’—Ersk. i. 6, 44. The statute has not been so read, however, in practice as to exclude altogether action against a Scottish husband or wife going out of the country, and deserting his or her home. But it has not been in use to be applied where there was nothing of the nature of desertion by a Scottish husband or wife from a Scottish home. (See the cases of Black v. Anderson, 4 D. 615; A B v. C D, 7 D. 556; Gordon v. Gordon, D. 1293; O'Rourke, 11 D. 976; Hume v. Hume, 24 D. 1342). The opinion of Mr Fraser ( 2 Husband and Wife, 1332) does not appear to be supported by any decision. It is true that in divorce for adultery the locus delicti is held to be immaterial, but no divorce for desertion can take place in Scotland without constituting in some form the obligation to adhere in this country, and establishing with reference to that obligation the ‘malicious and obstinate defection’ required by the statute. In the present case there is nothing to show that the defender could have been compelled to adhere in Canada during the period when the pursuer was admittedly a domiciled Canadian; and as the pursuer has been in Scotland only for a year, and apparently without his wife's knowledge, the Lord Ordinary has difficulty in finding the allegations relevant.”

The Second Division, on 18th November 1880, before further answer as to the competency or relevancy of the action, remitted to the Lord Ordinary, with instructions to allow the pursuer a proof of his averments on record.

Thereafter the Lord Ordinary granted commission to examine certain witnesses in Toronto, St. Louis, and San Francisco. On 3d June 1881, the proof taken in America having been reported, the pursuer's further proof was led before the Lord Ordinary. The pursuer deponed that he was born in Canada, and was the son of a Scotchman who had emigrated to Canada. He further deponed to the facts relating to his wife's desertion of him summarised above. With regard to the facts relied on as conferring jurisdiction on the Scotch Courts he deponed as follows:—“Ever since she left me she has shown her determination not to come back to me. In the autumn of 1877 I sold my business as a law bookseller in Toronto to Messrs Frankish, Collins, & Poole, retaining an interest myself in it. (Shown No. 50)—That is the contraot. It discloses the whole conditions of the arrangement. I sold everything I had of a moveable character in Toronto. In February 1879 I brought my eldest daughter to Scotland, and subsequently my two younger children. They are getting their education here. I have no near relatives in Canada except a married sister at St Louis. I have commenced business as a law bookseller in St. Giles Street, Edinburgh. I have taken a lease of the premises for five years. I have stocked the shop, and have purchased the law department of the business of James Stillie. My business has been profitable so far… . One main reason of my leaving Toronto was my desire to obtain a divorce. I found I could not obtain a divorce in Canada. (Shown No. 81)—That is the opinion which I got from lawyers there. The signatures appended are the original signatures of the counsel consulted. I read up the law of Scotland and the laws of different States in the United States. I found I could have got a divorce in the States, but I should have had to become a citizen of the States, and I wished to retain my nationality. I have also a liking to Scotland and to Scotland's laws, and my idea is that they are what they ought to be. It is my present intention to remain in Scotland as my home. My intention is not to return to Canada. I have reasons for not returning there. I have abandoned Canada as my home. By the Court.—The action which I raised in 1874 was entirely for the custody of my children. I never raised any action against my wife for the purpose of compelling her to return home.” The only other evidence led for the pursuer before the Lord Ordinary was that of his law agent, who detailed the means taken by his firm on pursuer's behalf to inform the defender of the pursuer's place of residence. The evidence led on commission was to the effect that the defender had been seen in various towns of the United States; that she supported herself by her own industry, concealing the fact that she was married, and passing under an assumed name; and that to those persons to whom her identity was known she had in any interviews she had with them stated her determination not to live with her husband. Her whereabouts at the time proof was led was unknown to any of the witnesses examined, but it was proved by them that search had been made for her by advertisement and otherwise without success.

The Lord Ordinary reported the proof, with this note:—“In case it should be desired by the Court, the Lord Ordinary thinks it right to report his opinion upon the evidence. The only witness examined before him (with the exception of the agent who was called to prove certain documents) was the pursuer himself. He gave his evidence with candour, and impressed the Lord Ordinary favourably as a reliable witness. But the result of the evidence as a whole is, in the Lord Ordinary's opinion, that the pursuer has failed to establish facts and circumstances sufficient to authorise the Courts of Scotland to adjudge the absent defender guilty of malicious and obstinate desertion, and to pronounce decree of divorce between the spouses.

The primary defect in the evidence which the Lord Ordinary observes is, that the domicile which the pursuer has set up in Scotland since 1879 is not established as in any real sense the domicile of the defender. It was not acquired as a domicile for her, but as a domicile against her, and in order to enable the pursuer to obtain a divorce. The pursuer's evidence is quite frank on this point. ‘One main reason of my leaving Toronto,’ he says, ‘was my desire to obtain a divorce.’

But it further appears that any domicile which the pursuer has established in Scotland has been acquired without his wife's knowledge; and although it may be the pursuer's misfortune more than his fault, it is nevertheless the fact that, so far as appears, the defender has never yet received notice of his change of home, or of his desire to have her society in this country. No steps appear to have been taken by the pursuer between 1873 and 1879 for the purpose of enforcing his conjugal rights in Canada; and the evidence does

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not show that anything which can be held equivalent to a demand for adherence in Scotland has been notified to the defender. The letter of 5th December 1879 appears never to have been delivered; and although the reason of this may be that she cannot now be found, the Lord Ordinary is not satisfied that he can apply to such a defender the provisions of the Conjugal Rights Act 1861, to the effect of holding her duly cited. She has never been in Scotland, and is not in any way subject to the law of Scotland, unless the pursuer's domicile can by construction of law be held to be her domicile. This, in the opinion of the Lord Ordinary, cannot be held in the present case. For further explanation of the view upon which he has arrived at this conclusion the Lord Ordinary refers to the note to his interlocutor of November 1st 1880.

On the merits—if the Lord Ordinary were called upon to deal with them—he would say that the cause of separation between the spouses is proved to have been incompatibility of temper and disagreement on matters of opinion. This, in law, is no sufficient cause for remaining separate, and would afford the wife no defence in an action of adherence. But it rather appears from the evidence that although the pursuer sent certain messages to his wife, he practically acquiesced, at least down to 1879, in her remaining separate. Prior to 5th December 1879 he had given her no intimation of the kind contained in the letter of that date, and that letter unfortunately is not proved to have been delivered. On the whole, the Lord Ordinary could not affirm, on the evidence before him, that the defender has been for four years in ‘malicious and obstinate defection.’”

Argued for pursuer—On the evidence there seemed no room to doubt that the defender had deserted the pursuer, and has wilfully remained absent from him ever since. The evidence further established that the pursuer was now domiciled in Scotland. If so, his wife's domicile was Scotch also, and the Scotch Courts had jurisdiction to dissolve his marriage. The dictum of Lord Westbury in Pitt v. Pitt, 4 Macq. 627, quoted by the Lord Ordinary on first reporting the cause as being against the pursuer, wasobiter as being unnecessary for the case in hand. Lord Eingsdown expressly said in the same case that he did not share the doubt expressed (p. 647). That case was one which touched on the guæstio dm vexota, whether a domicile short of actual domicile for all purposes will give jurisdiction for she purpose of divorce. A case touching the same point, though with a different leaning, was Jack v. Jack, 7th Feb. 1882, 24 D. 467. That question need not be decided in this case. There was nothing in the case of Ringer v. Churchill, 15th Jan. 1840, 2 D. 307, against the pursuer here, because in that case it did not appear that the pursuer had truly become domiciled in Scotland animo remanendi. The Lord Ordinary took an erroneous view of the case of Warrender, 2 Sh. and M'L. 1541 (see Lord Chancellor's opinion in Shaw v. Gould, 7th May 1868, 3 L.R., E. and I. Ap. 55). Nor was there any discrepancy, as the Lord Ordinary seems to think, between Wilson v. Wilson, 8th March 1872, 10 Macph. 573, and the English case between the same parties, 14th March 1872, 2 L.R. Prob. and Div. 435. Both the English Court and the Scotch Court sustained their jurisdiction, because they came to different conclusions on the question of fact whether the husband had abandoned his Scotch domicile.

Additional authorities— Harvey v. Farnie, 5 L.R. Prob. and Div. 153; Briggs v. Briggs, 5 L.R. Prob. and Div. 163. Lauder v. Van Gent, 1692, p. 252 of Ferguson's Divorce Reps.; Bell v. Kennedy, 14th May 1868, 6 Macph., H. of L. 69.