Scottish Court of Session Decisions

At advising on 15th February 1949,—

LORD KEITH .—This is a petition for dissolution of marriage, on the ground of the presumed death of the petitioner's husband, brought under section 5 of the Divorce (Scotland) Act, 1938. The petition raises a question as to the husband's (and therefore the petitioner's) domicile. The Lord Ordinary has held that the husband, by origin a domiciled Lithuanian, who had acquired a domicile of choice in Scotland, lost his domicile of choice when he left this country for America in August 1924 or, at least, when he arrived at the end of his journey and landed in New York.

I observe at the outset that the case raises a question as to the date to which the Court must have regard, in a petition under section 5, in determining the domicile of a husband who has disappeared. Where the facts on which the petition is based disclose the probability of the death having taken place on a definite date (the prayer of the petition seeking decree that the death should be presumed to have taken place at that date), continuance of a Scottish domicile must plainly, in my opinion, be shown to have existed at that date. But that is not this case. This is a case of a man who has not been known to be alive for a period of seven years and upwards, and the petitioner relies on the statutory presumption set up by subsection (2) of section 5 that her husband is dead unless the contrary be proved. In such a case all considerations, both practical and legal, require, in my opinion, that domicile be tested as at the date when he was last known to be alive. Since that date no knowledge exists as to his movements or conduct. The statute presumes after seven years or longer that he is dead. It does not say when he is presumed to have died, and, if all that can be said is that he must be presumed to have died at sometime within that period, that may cover the day after he was last heard of or the day before the expiry of the period. No positive inference can therefore be drawn from mere lapse of time that the unheard-of absentee has changed his domicile. In contrast with the perhaps intentionally vague language of section 5 of the Divorce Act may be compared the precise language of the Presumption of Life Limitation (Scotland) Act, 1891. Section 3 of that Act provides for a finding by the Court that the person who has disappeared "died at some specified date within seven years after the date on which he was last known to be alive, and where there is no sufficient evidence that he died at any definite date, find that he shall be presumed to have died exactly seven years after the date on which he was last known to have been alive." The same section further enacts:—

"Provided always, that nothing herein contained shall entitle any person to any part of the intestate moveable succession of a person who has disappeared if the latter was not a domiciled Scotsman at the date at which he is proved or presumed to have died."

In the absence of such precise and definite language, the present Act drives us, in my opinion, to judge of domicile as at the date when the absentee was last known to be alive. That will be either the date of his presumed death, where facts point to his death at a definite date (when ex hypothesi he must be known to have been alive), or the date when he was last heard of, where no known event is averred as likely to have caused his death at that date.

So accepting the position, I am of opinion that the Lord Ordinary has drawn from the evidence inferences which cannot be supported, or alternatively has wrongly placed upon the petitioner the onus of proving a negative, namely, that her husband did not intend to change his domicile when he left Scotland for America. All that can be extracted from the evidence as to intention is that the petitioner's husband, being unemployed in Scotland, went to America to look for a job, that if he found a job the petitioner would follow him, that if he did not find a job he would return to Scotland. All that is known about him is that he arrived in New York, wrote a letter to the petitioner on arrival, and that, in spite of extensive inquiries and the existence of relatives in America, he has not been seen or heard of since that day. Even if there were evidence that he had found a job, I should hesitate to affirm that that fact evidenced per se an abandonment of Scottish domicile. The fact is quite equivocal. He might have wished to test labour and living conditions before making any decision as to the future. He had left his wife and family in Scotland, and innumerable factors might have induced him to leave America and return to Scotland without his having formed in the meantime any intention to abandon his acquired domicile in Scotland. It is everyday experience that men wander all over the world looking for jobs without changing their domicile, whether original or acquired. But it is unnecessary to go into these questions because, in my opinion, the exiguous evidence we have here was insufficient to entitle the Lord Ordinary to find that the husband had abandoned his acquired domicile at the date he was last heard of. The law is not, in my opinion, in doubt. To abandon a domicile of choice there must be animus et factum. There must be intention of abandonment accompanied by some act that amounts to abandonment in fact. That act may be mere departure from the land of the domicile of choice, if intention of abandonment is clear, without necessarily the acquisition of domicile in another country. But the evidence of intention not to return must be unequivocal and clear, and that, in my opinion, is what is lacking here. There is no onus on the petitioner to show that her husband retained his domicile if evidence of abandonment is nonexistent, or is obscure. Cheshire (Private International Law, (3rd ed.) p. 218) says:

"There is a presumption in favour of the continuance of an existing domicile. Therefore, the burden of proving a change lies in all cases upon those who allege that the change has occurred. This presumption may have a decisive effect, for if the evidence is so conflicting that it is impossible to elicit with certainty what the resident's intention is, the Court, being unable to reach a satisfactory conclusion one way or the other, will decide in favour of the existing domicile."

That, in my opinion, is an accurate statement of law. It may be easier to infer abandonment of a domicile of choice than of a domicile of origin if only for the reason that abandonment of a domicile of origin involves the acquisition of a domicile of choice. But clear proof of abandonment of a domicile of choice is essential. In Scots authority it is hardly necessary to look beyond the case of Udny v. Udny . Lord Hatherley, L.C., says (at p. 95):

"But this settlement, animo et facto, by which the new domicile is acquired, is susceptible of abandonment if the intention be evidenced by equally decisive facts to those which evidenced its acquirement"

; and later (at p. 96):

"The more consistent theory is that the abandonment of a new domicile is complete animo et facto, because the factum is the abandonment, the animus is that of never returning."

In the same case Lord Westbury said (at p. 100):

"But there is no absurdity, but, on the contrary, much reason, in holding that an acquired domicile may be effectually determined by an unequivocal intention and act, and that, when it is so determined, the domicile of origin instantly revives, and continues until a new domicile of choice is acquired."

If in the present case we look for "decisive facts" or "unequivocal intention and act" to prove abandonment of domicile without the intention of returning, they are, in my opinion, singularly lacking. I refrain from examining here the English authorities which were cited to us. They provide illustrations of various circumstances in which the law of Udny was recognised and applied. The latest case of Lloyd Evans is an illustration, in very striking circumstances, of the rule stated by Cheshire that the onus of proving abandonment of a domicile of choice is on those who say it has occurred.

In the circumstances of the present case I am for reversing the Lord Ordinary and granting decree of dissolution of marriage.

LORD PRESIDENT (Cooper).—That is the opinion of the Court.