Scottish Court of Session Decisions

LORD JUSTICE-CLERK (Thomson).—The petitioner was married to John Thomas Wingfield Smart at Dumfries on 9th June 1951. The marriage was registered in Scotland. The parties separated, and the petitioner, after some communications from the Dutch Antilles, was ultimately informed that she had been divorced by a Court in Aruba in the Dutch Antilles on 4th July 1953.

The petitioner has brought this petition under the nobile officium, inviting us to "grant warrant to and authorise the Registrar General to rectify the entry in the Register of Marriages relating to the petitioner's said marriage, by recording said decree of divorce against the said entry in the Register of Marriages." We were referred to the terms of the 1855 Act, section 5 of which says, "In every case in which the status of any person shall be altered by a decree of any competent Court, the clerk to the process shall forthwith report such decree to the Registrar General; and it shall be lawful for the Registrar General, and he is hereby required, to take all measures necessary for having the entries in the duplicate registers affected by such decree rectified, by causing the date of the decree and the import thereof to be noted upon the margin of both duplicates opposite to such entries, as the Registrar General shall think fit and direct." It was argued that this section is of general scope, and that it applies to decrees of divorce wherever pronounced, and this appeal is made to the nobile officium to provide machinery to enable the general intention to be carried out in this particular case. But it seems to me that the section is of limited scope. This is a statute which applies only to Scotland. Its purview is limited to Scots processes and Scots officials. The practice of his department over a century seems to bear out that the only decrees with which the Registrar General is concerned are Scottish decrees. If that be the proper view of the Act, Mr Wilson's argument completely falls to the ground. What Parliament intended is not in doubt. There is no casus improvisus of the sort with which the nobile officium can deal. The nobile officium cannot be used to extend the scope of Acts of Parliament. Where the intention of a statute is clear but the machinery required for carrying out that intention is lacking, the nobile officium can, under special circumstances, be invoked to provide the necessary machinery, but in the present case it seems to me that the intention of the statute is clear and the machinery for carrying out that intention in Scottish matters is provided. There is no room at all for the view that the Registrar General has anything to do with decrees of divorce which take place outwith the bounds of Scotland. Accordingly, in my view, the prayer of the petition should be refused.

LORD PATRICK .—I entirely agree. I desire to add that, in my opinion, this petition has been dictated by a confusion of thought. If a decree of divorce is pronounced in a Scots Court, then, under section 5 of the Act of 1855, the clerk of the process reports that decree to the Registrar General and the Registrar General thereupon makes a note in the Register of Marriages to the effect that the marriage has been dissolved by a decree of the Scots Court. Even in Scotland that rectifying entry has no substantive effect whatever. If there exists any ground upon which the decree of divorce pronounced in the Scots Court can be attacked, the attack would be in no way warded off or affected by the entry which the Registrar General has made in the Register of Marriages. In the same way, if we were, contrary to our opinion, minded to cause the Registrar General to insert in the Register of Marriages a record of the decree of divorce pronounced by the foreign Court in this case, it would have no substantive effect whatever. If the divorce pronounced by the foreign Court is a good divorce, then the entry would not be required to substantiate it, and, if the divorce pronounced in the foreign Court was open to attack upon some such ground as fraud in invoking the jurisdiction, the entry in the Register would do nothing to mend that state of affairs.

LORD MACKINTOSH .—I agree with your Lordships. I think that a proper construction of section 5 of the 1855 Act,and particularly of the words "the clerk to the process shall forthwith report such decree to the Registrar General," sufficiently indicates that the section was meant to deal only with decrees of divorce pronounced in Scotland and to cause action to be taken only by Scottish officials. Accordingly, the section has no application whatsoever to the decree of divorce which is alleged in this case to have been granted by a Court in the Dutch Antilles. The basis upon which this petition seems to proceed is that the failure of the 1855 Act to make effective provision for having the marriage registers corrected in cases of foreign decrees of divorce is a casus improvises in the legislation, and that consequently the nobile officium of the Court has to be invoked in order to put this right. I think that there is no such casus improvisus and that no compotent case for the exercise of the nobile officium has here been made.