Scottish Court of Session Decisions

Thomas James Graham Hall, medical student, whose domicile was in England, married Mrs Christina Jeannette Kirsopp or Hall, a Scotswoman, at Portobello on 10th February 1889. The parties lived together in Edinburgh till August 1890, when Hall deserted his wife. Shortly afterwards he went to London and subsequently to America, where he had since remained. In 1895 the wife brought an action for divorce on the ground of desertion.

The action was undefended.

After hearing proof the Lord Ordinary ( Kyllachy) continued the cause for argument on the question of jurisdiction.

The pursuer argued—It was not maintained that the defender had acquired a Scots domicile of succession. But there was here a matrimonial domicile sufficient to found jurisdiction. A matrimonial or consistorial domicile, even when the husband's domicile of succession was foreign, was recognised by the Scotch courts —Jack v. Jack, 21 D. 467. Opinions adverse to this doctrine were expressed in the House of Lords in Pitt v. Pitt, 4 Macph. 627, but the contrary was not decided. The doctrine had since been upheld by Lord President Inglis in Wilson v. Wilson, 10 Macph. 573; and Stavert v. Stavert, 9 R. 519; and by Lord Fraser, Husb. And Wife, ii. 1255, 1276.

The Lord Ordinary pronounced this interlocutor:—“Finds it established that the pursuer and defender are lawfully married persons, and that the defender has wilfully deserted the pursuer, her society and fellowship, and has continued in wilful desertion of the pursuer for a period of more than four years prior to the date of the summons; Therefore divorces and separates the defender from the pursuer, her society, fellowship, and company in all time coming, and finds, declares, and decerns in terms of the conclusions of the summons for divorce: Finds the pursuer entitled to the custody and keeping of Marguerite Cartwright Ferrers Graham Hall, the only child of the marriage between the pursuer and defender: Finds the pursuer entitled to expenses,” &c.