Scottish Court of Session Decisions

Mrs Florence Smith or Murison, residing in Edinburgh, pursuer, brought an action against Patrick Murison, medical practitioner and medical officer of health for the borough of Durban, Natal, South Africa, defender, for declarator that the pursuer and defender were lawfully married to each other at Edinburgh on or about 17th August 1888.

The averments of parties were as follows:—“(Cond. 1) The pursuer Florence Smith or Murison resides at 24 Polwarth Terrace, Edinburgh. The defender is medical officer of health of the borough of Durban, Natal, South Africa, and has his office in the Town Hall there. With reference to the statements in answer, it is admitted that the defender was appointed medical officer as aforesaid in 1902 and is at present resident in South Africa, and that the summons in the present case was served on him personally in South Africa. Quoad ultra denied. ( Ans. 1) Admitted that defender is medical officer and has an office as averred. The pursuer's residence is admitted, and also admitted that her name is Florence Smith. Quoad ultra denied. Explained that defender was appointed medical officer at Durban in 1902. He many years ago settled permanently in Natal, and acquired a domicile there which he still retains. He is not domiciled in Scotland, and has not resided there since 1902. Reference is made to the execution of the citation herein, from which it appears that defender has not been cited hereto within Scotland. (Cond. 2) The pursuer first met the defender in Edinburgh, at which time he was a medical student in the University there. In the following year, on or about 17th August 1888, the pursuer and the defender at

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Edinburgh interchanged consent and accepted each other as husband and wife. The defender had by this time qualified to practice in medicine. With reference to the explanations in answer, it is admitted that prior to her marriage to the defender the pursuer was an actress. Quoad ultra denied. ( Ans. 2) Admitted that pursuer and defender first met in Edinburgh when the latter was a medical student, and that defender subsequently qualified as a medical practitioner. Quoad ultra denied. Explained that when parties first met pursuer was an actress. She had been living, before meeting defender, with another man, and the defender was aware of that. (Cond. 3) Following on the said interchange of consent, the pursuer and the defender went to Dundee, where the defender had been born and was educated prior to his matriculation as a student of Edinburgh University. ( Ans. 3) Admitted that defender was born in Dundee and was educated there, and that the parties lived together in Dundee. Quoad ultra denied. (Cond. 4) The defender took rooms in Dundee in the house of a Mrs Webster there, where he lived with the pursuer as his wife, having introduced her to the said Mrs Webster as his wife. ( Ans. 4) Admitted that the parties lived together in Dundee in rooms. Quoad ultra denied. (Cond. 5) Shortly thereafter the defender, having obtained a temporary post as locum tenens to Dr Watkins, Newton-le-Willows, Lancashire, England, proceeded with the pursuer there. The pursuer lived with him as his wife in the house of the said Dr Watkins, and was acknowledged by the defender as his wife. ( Ans. 5) Admitted that the defender acted as locum tenens to Dr Watkins. Quoad ultra denied. (Cond. 6) In a few months time, in the end of the year 1888, the defender bought a medical practice in Dundee, and the pursuer returned with him to Dundee. The pursuer and the defender lived together as aforesaid for a short time in lodgings in Dundee in the house of a Mrs Souter there. Thereafter they set up house together in Dundee at 14 Nethergate there for several years, and thereafter at 4 Airlie Place, Dundee. During this period, which lasted for eleven years, the defender carried on practice as a medical practitioner in Dundee and the pursuer lived with him at bed and board as his wife. She was publicly avowed by the defender as his wife, and was given the position of wife by him in his home. She presided at his table and received his friends as his wife, and was so received by them on her visiting them, and was habit and repute the wife of the defender. The defender effected an insurance on his life with the New York Life Insurance Company for £1000 for behoof of the pursuer, therein designated as his wife. ( Ans. 6) Admitted that the defender bought a practice as averred, and that the parties returned to Dundee, where they lived in lodgings, and afterwards at 14 Nethergate and at 4 Airlie Place, and the defender carried on practice in Dundee, while the pursuer lived with him. The policy of insurance is referred to for its terms. Quoad ultra denied. (Cond. 7) The defender on his arrival in Dundee to take up practice there introduced the pursuer to his mother as his wife, and from time to time while the pursuer and the defender were resident in Dundee the defender's mother resided with the pursuer and the defender in their home in Dundee and regarded the pursuer as the defender's wife. The pursuer similarly from time to time visited the defender's mother at her home in Broughty Ferry. The pursuer was also introduced to the defender's relatives in Dundee by the defender as his wife. She was so introduced to an uncle of the defender, brother of the defender's mother, a farmer named Ritchie, and to his family, consisting of three sons and two daughters, cousins of the defender. ( Ans. 7) Admitted that defender's mother occasionally resided with the parties in Dundee, and the pursuer visited her. The pursuer is called upon to give the names of the uncle and cousins referred to. Quoad ultra denied. (Cond. 8) On 11th June 1890 a daughter Winifred Murison was born to the pursuer and the defender. The defender registered the birth of the said daughter as that of his lawful child, giving the date of his marriage to the pursuer as 17th August 1888. ( Ans. 8) Admitted that on 11th June 1890 a daughter Winifred was born to the parties. (Cond. 9) The defender became a member of the Town Council of Dundee, and as a public man owned and avowed the pursuer to be his wife and the foresaid Winifred Murison to be his lawful daughter. The said daughter lived in family with the pursuer and the defender and was treated by defender as in all respects his lawful daughter. She was educated by him in the High School, Dundee. The said daughter lived from time to time on short visits with the defender's mother until the latter's death in 1915, including visits from South Africa, where as hereinafter detailed the pursuer and the defender proceeded. (Ans. 9) Admitted that defender was a member of Dundee Town Council, that pursuer and Winifred lived with him, and that Winifred was educated at Dundee High School, that defender paid her fees and maintained her, that she visited defender's mother from time to time, and that defender's mother died in 1915. Quoad ultra denied. (Cond. 10) In 1900 the defender, who had qualified in public health, was appointed Medical Officer of Health for Sutherlandshire, and took up house at Golspie. On leaving Dundee the defender received various presents from friends, associates in public work, and colleagues. In these the pursuer was associated with him, receiving among other things certain articles of plate and a silver tea service inscribed to her as the wife of the defender. ( Ans. 10) Admitted that defender in or about 1900 became Medical Officer of Health for Sutherlandshire, and took up house in Golspie, that he received various presents on leaving Dundee, and that the pursuer also received various presents. Quoad ultra denied. (Cond. 11) The defender acted as Medical Officer of

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Health in Sutherlandshire from 1900 to 1902. The pursuer and the said daughter lived with him there in his house at Golspie, and the defender openly avowed the pursuer to be his wife, and his said daughter to be his lawful daughter. The pursuer was received by the defender's friends and their families in their houses as the wife of the defender, and as his wife presided over his house and received his friends, and was habit and repute his wife. ( Ans. 11) Admitted that defender was medical officer as averred, and that pursuer and Winifred lived with him at Golspie. Quoad ultra denied. (Cond. 12) In 1902, at the instigation of the pursuer, the defender applied for and obtained his present position as Medical Officer of the Borough of Durban, Natal, South Africa. The pursuer and the defender with their said daughter proceeded to Durban, Natal, and took up house there, residing at 103 Cato Road, Durban, where the pursuer was avowed by the defender as his wife, and was so treated in his house, in public, and by his friends. Since going to South Africa the pursuer and the defender have twice returned to Scotland on leave. ( Ans. 12) Admitted that in 1902 the defender was appointed Medical Officer of Health of Durban, that he resided with pursuer and their daughter at 103 Cato Road, Durban, and that pursuer and defender have since paid two temporary visits to Scotland. Quoad ultra denied. (Cond. 13) The pursuer so lived with the defender in Durban for nineteen years at bed and board as his wife until 1919, when in consequence of the behaviour of the defender, disagreement arose between the pursuer and the defender. On 15th April 1920 the defender went through a ceremony of marriage in Johannesburg with a woman named Freda Andrews. On discovering this, and also in consequence of the defender's drunken habits, the pursuer and her said daughter ceased to live with the defender. Since 10th March 1921 pursuer has not lived with defender. ( Ans. 13) Denied. (Cond 14) The defender has sold the house and furniture at 103 Cato Road, Durban, and has refused to support the pursuer, although making provision for his said daughter. ( Ans. 14) Denied. (Cond. 15) In consequence of the defender failing to support her, the pursuer took action against him on 10th December 1921 under section 2, Act (Natal) No. 10 of 1896, whose terms are as follows:—‘When any husband unlawfully deserts his wife or leaves her without means of support, or when a father deserts any child being under 15 years of age or leaves it without any adequate means of support, if complaint thereof be made on oath to the magistrate of the division in which such wife or such child shall respectively reside by the wife or by any reputable person on her behalf, or in case of the child by the mother or any reputable person, such magistrate may issue his summons to such husband or father to show cause why he should not support his wife or child; and in cases of desertion, where such husband or father is absent from the colony, the magistrate may direct service of the summons to be made by publication thereof in the Natal Government Gazette, and in some newspaper circulating at any place in South Africa where such magistrate shall have reason to suppose that such husband or father resides or is.’ By order of the Court the defender was ordained to make payment to the pursuer of £25 per month. ( Ans 15) The order and the Act are referred to for their terms. Quoad ultra denied. (Cond. 16) The defender now denies that the pursuer is his wife, and the present action has been rendered necessary. The explanations in answer are denied. ( Ans. 16) Admitted that defender denies that pursuer is his wife. From the first the pursuer frequently suggested to defender that they should be married. The defender has always refused to marry the pursuer. He was aware of her career prior to her relationship with him, and on several occasions he had good reason to suspect that she was having relations with other men. This led to disputes between them and they separated on several occasions. Since the birth of said child the defender has only resumed cohabitation with pursuer out of consideration for the child.”

The pursuer pleaded—“A valid marriage having been constituted between the pursuer and the defender as condescended on, declarator in terms of the conclusions of the summons should be pronounced.”

The defender pleaded, inter alia—“1. The defender being neither domiciled in, nor resident in, nor cited within Scotland, the Court has no jurisdiction to try the action.”

On 18th July 1922, before proof led, the pursuer having moved for an award of aliment, the Lord Ordinary ( Morison) pronounced this interlocutor—“The Lord Ordinary having heard counsel on the motion of the pursuer for an award of aliment, decerns against the defender for payment to the pursuer of the sum of £25 per month as interim aliment, provided that the pursuer shall impute towards the amount of aliment hereby decerned for any payment made to her in terms of an order of Court under section 2, Act (Natal) No. 10 of 1896: Grants leave to reclaim.”

The defender reclaimed, and argued—The pursuer was not entitled to an award of interim aliment, because (1) the action was brought during the lifetime of the alleged husband, and he had put in defences denying the marriage. In circumstances such as these there was no case where the Court had made an award of interim aliment— Petrie v. Petrie, 1910 S.C. 136, 47 S.L.R. 151, per Lord President (Dunedin) at 1910 S.C 138, 47 S.L.R. 152; Campbell v. Sassen, (1826) 2 W. & S. 309, per Lord Gifford at 327; Browne v. Burns, (1843) 5 D. 1288; Forster v. Forster, (1869) 7 Macph. 546; Maclaren, Court of Session Practice, p. 715; Walton, Husband and Wife (2nd ed.), p. 103; Fraser, Husband and Wife (2nd ed.), pp. 846 and 850. (2) The pursuer's averments were not sufficient to show that the Court had jurisdiction. Ogden v. Ogden, [1908] p. 46, was referred to. (3) The pursuer was already in receipt of alimony from the Court of Natal.

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Argued for the respondent—The pursuer was entitled to receive an award of interim aliment, because (1) the pursuer's averments disclosed a good prima facie case, and the decision in Browne v. Burns ( cit.), referred to by the Lord President (Dunedin) in Petrie v. Petrie ( cit.), did not preclude the Court from making an award in circumstances like those of the present case—(see Lord Cunningham's opinion in Browne v. Burns ( cit.) at p. 1293). (2) The Court had jurisdiction. In an action of declarator of marriage jurisdiction was not determined by the domicile of succession, but by the domicile of the alleged husband at the date of the marriage. Moreover, in cases where the domicile of the woman depended on the marriage being set up, she was not to be subjected to the jurisdiction of a court which would only be the court of her domicile in the event of the marriage being established— Sottomayor v. De Barros, (1877) 2 P. D. 81. In Mayberry v. Mayberry, (1908) 15 S.L.T. 1016, it was held that the Court had jurisdiction to entertain the case. The pursuer in the present case was just as much entitled to have her case entertained.