Scottish Court of Session Decisions

The question is, as I have said, whether this Court has jurisdiction. It has come to be authoritatively settled that the jurisdiction of the court in actions of divorce is founded on the domicile of the spouses; because a divorce is a proceeding which affects the status of the spouses, and ought only to be granted by a judge who has universal jurisdiction over the parties. In general this will be a universal jurisdiction over both spouses, because of the rule that the wife's domicile follows that of the husband. There is, however, in my opinion an exception to this rule, because I agree in the opinion expressed by Lord West bury in Pitt v. Pitt, 2 Macph. 32, to the effect that after a cause of action has arisen the husband is not entitled by changing his domicile to subject his wife to the jurisdiction of the courts of a foreign country, or to bring her under the dominion of a system of positive law to which she is a stranger. From this consideration it would follow that Mr Redding by settling in America could not subject his wife to an action at his instance in an American Court, or oblige her to seek redress for the wrong he had done in the Courts of America. For the purposes of adjudicating on any question of conjugal right I conceive that the Courts of England remain open to Mrs Redding, notwithstanding her husband's disappearance; and her remedy (possibly an imperfect one) is such as the laws of England' confer on a deserted wife. These considerations are evidently antagonistic to the wife's claim in the present case to prosecute a divorce suit in Scotland. If the husband is not entitled to change the jurisdiction against the wife, it follows in my opinion that the wife has not the power by her change of residence to create a new jurisdiction against the husband. It is quite certain that the Court of Session has not a universal jurisdiction against the defender in this case. (1) To sustain the jurisdiction in respect of the wife's election to fix her domicile here (supposing that she has the power to do so) would, I apprehend, be tantamount to a revival of the old system of founding consistorial jurisdiction on special grounds applicable to one of the parties. (2) In general, when jurisdiction is founded ratione domicilii, it is the defender's domicile that is alone considered. Here the domicile founded on is that of the pursuer. This is another objection. But (3) the determining consideration in my mind is that the Court which is to make a decree dissolving a marriage ought to have jurisdiction over both parties. Where one of the spouses has wrongfully withdrawn from the country, it may not unreasonably be held that the jurisdiction against him or her is not destroyed by the party's own wrongful act. It is matter of familiar practice that this Court grants decrees of divorce against deserting spouses who have quitted the country finally to all appearance, and whose place of residence may even be unknown. If in such a case the husband is the pursuer, his wife's domicile is not changed by her desertion. If the wife is the pursuer, we act on the principle that the husband cannot by his own wrong change the joint domicile to the prejudice of the wife. But these rules do not appear to have any application to a case where the husband's last known domicile is England, and where the wife is not seeking to maintain the status quo, but to set in motion the courts of a country which she claims to have chosen as her domicile, but to which it cannot be shown that her husband owes obedience.”