Scottish Court of Session Decisions

LORD GUTHRIE'S OPINION.—The pursuer in this action resides at 10 Brougham Place, Edinburgh. The defender resides at Atina, Frosi-none, Italy. The first conclusion of the summons is for divorce of the defender from the pursuer on the ground of the defender's adultery. The second conclusion is alternative, and asks for declarator that two judgments of the Rota, dated 8th November 1956 and 13th April 1957, annulling the marriage of the parties, are judgments in rem having extra-territorial effect and in particular valid in Scotland.

The pursuer avers that she and the defender were married in Edinburgh according to the forms of the Roman Catholic Church on 27th April 1949. No children have been born to them. The defender was born in Italy of Italian parents and has now settled in Italy where he is domiciled. The pursuer is of Italian extraction, but was born in Scotland and has lived all her life in Scotland, where she intends to remain. She avers that she has been ordinarily resident in Scotland for three years before raising this action, and founds upon the Law Reform (Miscellaneous Provisions) Act, 1949, section 2. The pursuer states in the condescendence that she did not wish to marry the defender as he had assaulted her five days before their wedding day, but, as all the plans for the wedding were arranged, she yielded to pressure from her parents to go on with it. After the marriage the parties lived together in Edinburgh. The marriage was unhappy. In June 1950 the defender went on holiday to Italy, and, while he was there, the pursuer wrote to him telling him not to come back. They have not cohabited since June 1950. According to her original averments, the pursuer in 1956 instituted proceedings before the Rota, the Vatican tribunal which takes cognisance of matrimonial cases, in order to have her marriage annulled. In two judgments dated 8th November 1956 and 13th April 1957 the Rota duly annulled the marriage on the ground of want of true consent by the pursuer. On 18th May 1957 the defender remarried at Rome. This marriage was with a woman who is named in the summons and to whom the action has been intimated. He now lives with her as man and wife. The pursuer states that she has been advised by the Registrar General for Scotland that there is doubt about the extra-territorial validity of the judgments of the Rota, and she has therefore brought the present action on the alternative grounds stated in the conclusions.

I ordered the action to be intimated to the Lord Advocate in the public interest; but he did not appear. In view of the wide terms of the alternative conclusion and of the important question raised by it, on a motion by the pursuer to allow a proof before answer, I appointed a preliminary hearing. The original averments raised sharply a question whether the Court of Session is bound to recognise a decree of a tribunal of the Roman Catholic Church annulling a marriage celebrated in Scotland. After the hearing was ordered, the pursuer substantially amended her averments. In the amendment she explained that the Rota is a tribunal of appeal from lower judicatories of the Roman Catholic Church, administering the Canon Law in relation to, inter alia,questions of the validity of marriages contracted according to the rites of the Roman Catholic Church. She averred that the Rota exercises jurisdiction in respect of such questions over all persons married according to the rites of the Roman Catholic Church, irrespective of where they may be domiciled. An action in respect of the validity of a marriage must be pursued, in the first instance, before the appropriate church judicatory of the country in which the party raising the action is resident. Accordingly, the pursuer instituted proceedings to have her marriage declared null on the ground of want of true consent, which is a recognised ground of nullity according to Canon Law, before the tribunal of St Andrews and Edinburgh in 1952. She was unsuccessful before that tribunal but appealed to the Rota and obtained the two judgments in her favour. The pursuer averred that in Italy, where the defender is, and has all along been, domiciled, the judgments of the tribunals of the Roman Catholic Church, including the Rota, in relation to Roman Catholic marriages such as that of the pursuer and defender, are recognised for all purposes by the civil authorities in accordance with the Lateran Treaty entered into between Italy and the Vatican on 11th February 1929; and that a decree of nullity of marriage, pronounced by the Rota, is equally valid in Italy with a similar decree of a civil court in Italy administering the municipal law of the country. The pursuer also added by amendment an averment that she is advised that the defender's marriage to the other woman is valid according to Italian law.

The question raised in the amended pleadings was accordingly rather different from the issue raised by the original averments as to the effect in Scotland of the decrees of the tribunal of the Roman Catholic Church. The question raised by the averments, as amended, is whether the decrees of the Rota, being recognised as effective to annul the marriage by the law of the defender's domicile, are entitled to recognition by the Court of Session.

Counsel for the pursuer said that the weight of authority was to the effect that, where true consent to marriage was lacking, the marriage is void and not merely voidable—Dicey on Conflict of Laws, (7th ed.) p. 347; Cheshire on Private International Law, (5th ed.) p. 338. He therefore admitted that, if the marriage was void by lack of true consent, the pursuer has not acquired the defender's domicile. He also conceded that she had not averred, and could not aver, that there was lack of true consent on her part as that was understood in the law of Scotland, since she had only averred that she yielded to pressure from her parents to go on with the marriage, and "it will not be a sufficient ground for annulling a marriage that a parent or guardian has used considerable pressure to induce consent to it."—Walton on Husband and Wife, (3rd ed.) p. 50. He argued, however, that if the lex loci celebrationis governed the question whether the marriage was valid as having followed upon true consent—Cheshire, op. cit., pp. 354–355—none-the-less the Courts in Scotland would recognise a decree of nullity pronounced by the court of the husband's domicile—Aldridge v. Aldridge, 1954 S. C. 58. Still more, if the marriage was only voidable, the pursuer had acquired her husband's domicile in Italy, and therefore the Court of Session was bound to recognise a decree of the court of the common domicile—Administrator of Austrian Property v. Von Lorang, 1927 S. C. (H. L.) 80. In the present case the Court ought to regard the decision of the Rota as the decision of a court of the husband's domicile, since, in Italy, if a marriage has taken place in a Roman Catholic Church, the parties require to resort to a tribunal of that Church for a decision on its validity.

In my opinion, I am bound to dismiss the alternative conclusion of the summons. I have difficulty in understanding the meaning of the words "extra-territorial effect" in that conclusion. The judgments referred to in the conclusion are not said to be decisions of a court of the Vatican State, but to be judgments of a tribunal of the Roman Catholic Church. At one place the pursuer refers to the Rota as the "Vatican tribunal", and, in another, as a court of appeal from the lower judicatories of the Roman Catholic Church including that of the country in which the party raising the action is resident. Thus it is stated to be an appellate tribunal with universal jurisdiction over the Church. Neither party is resident or domiciled in the Vatican State. As framed, the alternative conclusion raises a broad question with which it is not for me to deal. I can only decide the much narrower issue, whether by the law of Scotland the pursuer has relevantly averred that the marriage between the parties has been annulled by the decrees founded on. Now, the pursuer and the defender entered into a regular marriage in Scotland, celebrated in church, and admittedly not subject to challenge by the law of Scotland on the ground that the pursuer did not consent to enter into the contract of marriage. In my opinion, the question whether the pursuer gave a true consent to the marriage is to be decided by the law of Scotland as the lex loci celebrationis. I do not require to consider what the position would have been if the marriage had taken place in a Roman Catholic church in Italy. In 1952 the pursuer applied, as she avers, to have her marriage declared null according to the Canon Law. The tribunal to which she applied was the tribunal of the diocese of the Roman Catholic Church in Scotland of St Andrews and Edinburgh. Now, whether or not she could have applied to a court of the Republic of Italy in order to have her marriage declared null, she did not adopt that course, and accordingly the question is not whether the Court of Session would have been bound to recognise the decision of an Italian court, as the court of the husband's domicile, or, possibly, of the joint domicile of the parties. The fact is, as the pursuer's averments disclose, that she, as a member of the Roman Catholic Church, applied to the appropriate tribunal of that Church to have the question decided whether, according to the Canon Law, her marriage was valid in the eyes of the Church. The tribunal which she invoked, the tribunal of the Diocese of St Andrews and Edinburgh, sat in Scotland. Now if that tribunal had decided in her favour, it could not possibly have been maintained that her marriage had been annulled according to the law of Scotland, although by the Canon Law it was no longer regarded as a valid marriage. The only way in which, in Scotland, the pursuer could have had her marriage declared null according to the civil law of Scotland was by an action in the Court of Session. There are not in Scotland two judicial systems administering different laws of marriage. The fact that an appeal was taken by the pursuer to the tribunal of appeal in the Vatican from an adverse decision of the church tribunal of the diocese does not affect the position. It is sufficient for the disposal of this matter to hold, as I do, that a decision of a diocesan tribunal of the Roman Catholic Church in Scotland, or of a tribunal of appeal in the Vatican from the diocesan tribunal, that a marriage contracted in Scotland is null according to the Canon Law of that Church, does not affect the validity, according to the civil law of Scotland, of a marriage which satisfies the requirements of Scots law. The decree of such an ecclesiastical tribunal is not a decision by the court of the husband's domicile, and therefore the cases founded on as to the circumstances in which the Court of Session will recognise a decision by the court of the parties' domicile as to the nullity of the marriage have no bearing upon the present question. The fact that, according to the averments of the pursuer, the decision of the ecclesiastical tribunal is recognised as valid by the law of the domicile of the husband is immaterial, since the question for me is whether the Court of Session will hold that by the law of Scotland the pursuer's marriage has been annulled by the decrees of the ecclesiastical tribunal. I am bound to answer that question in the negative.

In his opinion in the recent case of Bliersbach and Another v. MacEwen, supra, at p. 43, Lord Sorn pointed out that difficult questions as to the validity of a marriage may arise when the law of the domicile is in conflict with the lex loci celebrationis. In the present case, I think that I must apply Scots law which is the lex loci celebrationis.

Accordingly, I do not think that any purpose would be served by allowing a proof before answer of the averments in support of the alternative conclusion of the summons. I shall accordingly dismiss the alternative conclusion and allow a proof of the pursuer's averments in support of the first conclusion.

I should add that no reference was made in the argument before me to the Law Reform (Miscellaneous Provisions) Act, 1949, section 2 (4).