Scottish Court of Session Decisions

The circumstances sufficiently appear from the Lord Ordinary's judgment.

“ Opinion.—In this case I have come to the conclusion that the pursuer is entitled to decree of divorce.

A question was raised as to jurisdiction, and I had some argument on the point whether anything short of a domicile of succession is a sufficient domicile to found jurisdiction in divorce.

It was contended for the defender that there is now no such thing recognised in law as a matrimonial domicile, that is to say, a domicile distinct from the husband's domicile of succession, and accordingly that although adultery has been committed in Scotland and the spouses have had their domicile in Scotland until after the adultery, and until before the raising of the action of divorce, it is yet fatal to the jurisdiction of the Scottish Courts if the husband has at the date of the action left Scotland, and done so in such circumstances as to make it no longer his domicile of succession.

I have not found it necessary to come to a conclusion on the interesting and perhaps somewhat difficult question thus raised. I shall only say that I am not satisfied that the doctrine can be stated so broadly as it was put in argument.

As the facts of the present case stand I am prepared to hold that at the date of this action the husband, who is here the pursuer, had his domicile of succession in Scotland. His domicile of origin was no doubt English, but he had married a Scotswoman, and on his marriage, which took place in 1878, he had come to Scotland and settled there. From that time his only home was in Edinburgh, where he rented and furnished a house, and indeed it was not disputed that up to December 1892 he was for all

Page: 916↓

purposes a domiciled Scotsman. That being so, what I have to consider is whether it involves the loss of his Scotch domicile, and the revival of his domicile of origin, that on the discovery of his wife's misconduct, and some months before the raising of the divorce, he left Edinburgh for London to live with his relatives, and has now, as he frankly says in the witnessbox, no intention of returning to Scotland.

I confess this would be carrying very far the doctrine that a domicile of choice is lost by a change of residence animo non revertendi. There are two circumstances which in the present case appear to exclude the application of that doctrine. The one is that it cannot be here affirmed that the pursuer had at the date of the action in any proper sense changed his residence. He still had a house in Edinburgh, in which his wife continued to live, and of which he continued to be tenant up to Whitsunday.

That is the first consideration. The other is this, that it nowhere appears what the pursuer's intentions were at the date of the action in April last. He says, no doubt now, that he has no intention of returning to Scotland, and it is also true that his furniture has been sold off. But at the date of the action his intentions may have been different, or they may not have been formed one way or the other.

I confess I do not consider that I am bound in a case like this to draw inferences, more or less doubtful, in order to defeat the jurisdiction. On the whole I do not think at present that either animo or facto the pursuer had changed his domicile at the date of the action.”