Scottish Court of Session Decisions

LORD CAMERON'S OPINION.—This is an action of nullity of marriage brought on the ground that the ceremony took place without proper conjugal consent having been exchanged between the parties. The action has taken a somewhat unusual course. The summons was signeted on 20th July 1959. No defences were lodged. A proof before answer was allowed on 28th August 1959, and proof was heard by Lord Walker on 5th February 1960, on which day he continued the proof to a date to be afterwards fixed. On 25th February 1960 Lord Walker ordered intimation of the action to be made to the Lord Advocate under section 8 of the Conjugal Rights (Scotland) (Amendment) Act, 1861. The Lord Advocate lodged defences and a record was made up and closed on 1st June 1960. As the relevancy of the pursuer's averments was challenged by the Lord Advocate, the case was sent to Debate Roll, and I have now heard parties on the preliminary pleas. I am indebted to both counsel for an excellent argument.

The facts upon which the pursuer relies are set out on record and the narrative of these is somewhat unusual. The pursuer, who is of Italian origin, resides in Sauchiehall Street, Glasgow, and the defender, Castelli, at Ventimiglia in Italy. The pursuer in 1954 was on holiday in Italy and while she was there she met the defender. After her return to Scotland she corresponded with the defender, and in or about 1955 she again spent a holiday in Italy. During this period the pursuer and the defender became engaged to be married. In or about November 1955 the pursuer returned to her home in Scotland, and in or about January 1956 the defender joined her there. He was on three months' leave from his employment in Italy. He was employed as one of the carabinieri.

While the defender was in Glasgow, the parties wished to obtain permission for the defender to remain in Scotland after the parties were married. The pursuer tried to get permission from the Home Office for the defender to remain in Scotland permanently, but permission was refused. Thereafter, the pursuer again applied to the Home Office for permission for the defender to remain in Scotland, and stated that she was a British subject and intended to marry the defender, but the Home Office said that, even in such cases, permission was generally refused. Subsequently, the pursuer instructed solicitors to endeavour to obtain permission for the defender to remain in. Scotland, but on or about 18th February 1956 the Home Office informed the said solicitors that they could not agree to the defender staying, but that they would consider the matter. Subsequently, the defender received a letter from the Home Office telling him that he must return to Italy. The pursuer consulted certain Members of Parliament, but they advised the pursuer that the defender should return to Italy.

In these circumstances the pursuer resolved to go through a ceremony of marriage with the defender in order to enable him to remain in Scotland, or, in any event, in order that he would be able to return to Scotland after leaving Scotland at this time. On 4th April 1956 the pursuer and the defender went through a formal ceremony of marriage in the registry office of the Kelvin district of Glasgow. Both the parties were Roman Catholics and neither of them regarded the ceremony in the registry office as a marriage. As Roman Catholics they had no matrimonial purpose in connexion with the said ceremony. They both intended that, if they were to be married, the marriage would take place in a chapel. The ceremony in the registry office was not intended by the parties to be a marriage. The formal consent which they interchanged was not exchanged with a view to constituting a marriage, but was exchanged in an attempt to induce the Home Office to allow the defender to remain in this country, or, in any event, to return to this country after leaving it at this time. At the said ceremony real and actual consent to marriage was withheld by both parties. Following upon the said ceremony of marriage, the parties did not live together, and they have never had marital relations. The defender did not tell his family that he had gone through this ceremony, and he did not tell his employers. He intended to inform his employers once a proper marriage had been celebrated in chapel. On or about 8th April 1956 the defender returned to Italy.

Thereafter the pursuer continued to endeavour to obtain permission for the defender to come to Scotland. In or about August 1956 she received a letter from the defender in unfriendly terms and, since then, she has given up her efforts to obtain permission for the defender to come to Scotland. The defender has never asked the pursuer to join him in Italy and the pursuer and the defender have never regarded themselves as married to one another. When writing to the pursuer after 4th April 1956, the defender always addressed his letters to "Miss Orlandi."

The defender was born in Italy of Italian parents, and all his life he has had his home in Italy. He is a domiciled Italian. The pursuer is resident in Scotland and has been ordinarily resident there for a period of at least three years immediately preceding the raising of this action. These are the averments that are now challenged by the Lord Advocate as being irrelevant and insufficient in law to support the conclusions of the summons, and the Lord Advocate further pleads that the pursuer, having participated in a formal and regular marriage, is barred from insisting in the present action. It was argued on behalf of the Lord Advocate that the pleadings show that all the essentials to a valid contract of marriage were here present, namely, an intelligent and voluntary consent to marriage, competent age, and physical capacity, and that it is admitted that the formalities required by the Marriage (Scotland) Act, 1939, were all complied with. That being so, the terms of section 1 (4) made it clear that this was a marriage which could not be set aside on the only ground alleged here. Marriage, it was said, is more than a mere contract as it creates status and has consequences that affect interests other than those of the parties alone. In any case, there was no relevant averment here to demonstrate the absence of proper consent to marriage. It is not suggested in the pleadings that either party understood that the ceremony which they went through would create a valid marriage. In support of his contentions Mr Stewart, for the Lord Advocate, cited the judgment of Lord Eldon in Jolly v. M'Oregor, (1828) 3 W. &S. 85, at p. 189, and he also founded upon a statement of Lord Deas in Robertson v. Steuart, (1874) 1 R. 532, where he said (at p. 667):

"No doubt, in a regular marriage in facie ecclesice, which, in Jolly v. M'Gregor, Lord Eldon defined to be a marriage by a clergyman after due proclamation of banns—it is still the consent which makes marriage. But the difference is this—that in a regular marriage the parties cannot be heard to say that they did not mean and understand marriage."

This statement by Lord Deas was adopted by Lord Justice-Clerk Scott Diokson in Lang v. Lang, 1921 S C 44, at p. 53. In addition, Mr Stewart referred to the passage on p. 38 of Walton on Husband and Wife, 3rd edition, which referred particularly to the observations I have just quoted from Robertson v. Steuart and Lang v. Lang .

Mr Mackay, for the pursuer, maintained that the question of how far a regular marriage could be set aside on the ground of absence of consent on the part of both parties was at least an open one, and that there was no decision in Scotland to support the view for which the Lord Advocate contended. He argued further that his averments were relevant and sufficient, and that, properly considered, Scottish authority was in his favour. Lord Deas' dictum stood alone, was in any case obiter, and was unsound. The case of Jolly v. M'Oregor was not concerned with a regular marriage in facie ecclesiœ, although the marriage had been celebrated by a clergyman after a false statement had been made as to the proclamation of banns, and Lord Eldon's observations did not assist the Lord Advocate. The balance of authority was in favour of the view that such a case as the present could competently be presented, and, in support of this, Mr Mackay referred to Stair: More's edition, vol. i, Notes p. xiv, and to Lord Justice-Clerk Hope's opinion in Lockyer v. Sinclair, (1846) 8 D. 582, at p. 609. He also maintained that he found support for his proposition in statements by Lord Alness and Lord Anderson in the case of Courtin v. Elder, 1930 S. C. 68, at p. 73 and p. 76. The Outer House case of Brady v. Murray, 1933 S. L. T. 534, was also in his favour, as Lord Moncrieff's observations in that case, in which he granted decree of nullity in circumstances not unlike the present, were of general application; while he was in a position to claim in his favour the authority of Lord Fraser in Praser on Husband and Wife, vol. i, p. 425, and passages at pp. 434 and 435.

As regards the Act of 1939, he argued that section 1 (4) only applies in cases where persons are desirous of contracting a marriage. He therefore asked me to repel the Lord Advocate's plea to relevancy and to allow the case to proceed.

As regards the plea of bar, he maintained that there were no averments to support such a plea which, in any event, could not be disposed of without inquiry.

The question which has to be decided is this:—Assuming that want of true matrimonial consent on the part of both parties can afford a good ground for setting aside an irregular marriage, can such absence of consent be successfully pleaded to nullify a marriage regularly contracted in accordance with the forms laid down in the Marriage (Scotland) Act, 1939? In my opinion, the weight of authority in Scotland is in favour of an affirmative answer, which would also seem to me to accord with principle. On principle I do not see that there should be any difference in the grounds on which a regular as opposed to an irregular marriage can be set aside. In both cases it is consent, and not the form in which consent is given or evidenced, that makes marriage. There is no first and second class in the quality of marriage once it is effectively contracted, so far as the law of Scotland is concerned. The legal consequences and effects of a marriage irregularly constituted are not less than those which follow upon the ceremony in facie ecclesice. The rights and obligations of parties inter se, their status and that of any children of their union, are precisely the same in both cases, as also are the grounds for dissolution of the marriage. In addition (apart from this question of consent and the statutory exception set out in section 4 of the 1939 Act), the grounds on which marriage, once contracted, can be set aside and declared null, are also the same whether the marriage be regular or irregular. Such being the position, it may well be asked why, as matter of principle, should absence of matrimonial consent in both parties be a ground for setting aside marriage contracted in one form and not in another, if it is the substance of the transaction, and not the form alone, that has to be regarded. It may well be that, where parties adopt a particular statutory form which involves a procedure of prior intimation of intention or proclamation of banns as well as the correct adoption of certain solemnities of celebration, it will be much more difficult to convince a Court of the absence of true matrimonial consent than it would be where the evidential basis of the contract was to be found only in an interchange of consent to marriage per verba de prœsenti. This I can well appreciate, and indeed in the case of a regular marriage in facie ecclesiœ the hurdles to be overcome by anyone seeking to set it aside may be almost insurmountable. But I do not see why, because it may be difficult to establish the requisite facts to warrant it, resort to a remedy should thereby be held incompetent. In my opinion, principle would not require that there should be injected into the matrimonial law of Scotland the distinction for which Mr Stewart argued on the Lord Advocate's behalf. Mr Stewart's argument, however, while conceding that the precise point at issue here is not one which is covered by direct authority in any decided case, yet asserted that there were sufficient dicta to be found in the books by Judges of eminence to establish the rule for which he contended. Now, of the cases cited by him, the first, Jolly v. M'Gregor, was concerned with a marriage that was celebrated by a clergyman (albeit one of poor character) of the Established Church after a purported proclamation of banns, but it was decided on the basis that it was an irregular marriage, and Lord Eldon really reserved his opinion on the question of whether a marriage celebrated in facie ecdesiœ could ever be set aside on the ground of want of consent on the part of both parties. The quality of the parties and the circumstances of that case may be judged from the opening words of the speech of Lord Lauderdale. He said (at p. 167):

"My Lords, this is an action of declarator of marriage brought by Malcolm McGregor, a man of very low birth, and of distinguished immorality of character, against Mary Black McNeill, the natural daughter of the Rev. Dr McNeill, a clergyman, in respect of immorality of conduct certainly worthy of sustaining the relation of father-in-law to the pursuer, who by this declarator aims at the honour of becoming his son-in-law."

Jolly v. M'Gregor, therefore, did not deal with the issue which is raised here, and nothing was said which can be claimed as authority for the Lord Advocate's contention. The famous Murthly case, Robertson v. Steuart, 1 R. 532, was also a case of an irregular marriage, consent being evidenced per verba de prœsenti and Lord Deas's observation was entirely obiter. No reason is given for his statement, unless it be implied that the exchange of matrimonial consent in such a case is so solemn and so plain that the apparent, but false, intent of parties must over-ride and obliterate any other that is concealed, but true. No authority is given either in decided cases or from the institutional writers for this statement, and indeed, as I shall show in a moment, the institutional writers would appear to incline to the opposite opinion. The adoption of this statement of Lord Deas by Lord Justice-Clerk Scott Dickson in Lang was again in an obiter passage, as Lang v. Lang was a case concerned with fraud that was alleged to nullify the consent of the party defrauded, and not one in which there was mutual reservation of consent by both parties. In my opinion, this obiter dictum of Lord Deas does not correctly represent the law of Scotland. In the later case of Courtin v. Elder the Lord Justice-Clerk, Lord Alness, and Lord Anderson expressed their opinion in general terms, and indeed indicated that the very kind of reservation such as that founded upon by the pursuer was one of those which would suffice to nullify a marriage where there was apparent, but not true, matrimonial consent, and did not indicate that, in their view, the fact that a marriage had been formally regular was a bar to nullity on the ground of want of true consent. The case of Courtin was of course one of irregular marriage. In Brady v. Murray, 1933 S.L.T. 534, the marriage which was set aside had been registered by a warrant of the Sheriff, and Lord Moncrieff's observations in that case as to the effect of absence of consent to marriage are made in such terms as to suggest that there was no distinction in his mind between regular or irregular marriages or as to the effect which absence of true matrimonial consent might have as a ground of nullifying either. It is of course true that the marriage which was under consideration by Lord Moncrieff was also irregular, but it is to be noted that it was one of those which had involved an application by formal petition to the Sheriff for warrant to register the marriage and also an inquiry into the facts by the Sheriff and a formal decree of Court, so that the occasion was one of some solemnity, and indeed fenced with certain statutory sanctions if the true facts were not disclosed. I should also refer to the case of Dalrymple v. Dalrymple, (1811) 2 Hagg. C. R. 54, because in that case Lord Stowell referred to, and apparently accepted, an opinion expressed by Henry Erskine that the law of Scotland would recognise want of true matrimonial consent by both parties as a ground for setting aside a regular marriage. It would also appear from the judgment of Lord Justice-Clerk Hope in Lockyer v. Sinclair, at p. 607, that in the case of Dalrymple Baron Hume had expressed a similar opinion to that of Henry Erskine. I have examined the opinions expressed by Baron Hume in that case and can find nothing which in any way conflicts with the views expressed by Erskine. It would thus appear that, so far as the decided cases go, the balance of opinion is in favour of the pursuer, and that there is really only one dictum, that of Lord Deas, on the other side.

I turn now to consider the views of the institutional and text writers. In More's edition of Stair, Notes, p. xiii, this is said:

"The consent necessary to establish the relation of marriage must be interchanged freely and deliberately, and for the purpose of creating this relation. No force or fraud must be employed to extort the consent, and there must be clear evidence that the parties intended to marry each other. Hence, the most formal acknowledgement of marriage, even though made in facie ecclesiœ, will be of no avail, if it shall appear that such was not the true intention of the parties. It may be difficult, and often impossible, to show that the parties did not mean to be bound by what they have apparently done; and they will not be permitted lightly to disclaim their own solemn and deliberate proceedings; but still there is no form or ceremony which affords such conclusive evidence of marriage, as to make it incompetent to show that marriage was not intended by the parties. Such evidence should be received with jealousy, and sifted with rigour; but it is nevertheless competent. Accordingly, the most explicit oral or written declarations of marriage, and even the celebration of marriage, by a clergyman, have been disregarded, when other circumstances have shown that the parties did not intend to bind themselves by marriage."

Erskine in his Institutes, I, vi, 2, says:—

"Marriage is truly a contract, and so requires the consent of parties … and it is constituted by consent alone, by the coniunctio animorum"

and it is later stated (par. 5):—

"The consent essential to marriage is either express or tacit. Express consent in regular marriages is signified by a solemn verbal vow of the parties, accepting each other for their lawful spouses, uttered before a clergyman, who thereupon declares them married persons. But it is not essential to marriage that it be celebrated by a clergyman. The consent of parties may be expressed before a civil magistrate, or even before witnesses; for it is the consent of parties which constitutes marriage."

And the learned author goes on to say:—

"The proof of marriage is not confined to the testimonies of the clergyman and witnesses present at the ceremony. The subsequent acknowledgement of it by the parties is sufficient to support the marriage, if it appear to have been made not in a jocular manner, but seriously and with deliberation."

Bell suggests that there is no reason why, in cases where there has been no real intention to marry, a regular marriage should not be set aside. In dealing with proof of irregular marriages, at par. 1517 of his Principles, Bell says:—

"Marriage is judicially established by action of declarator in the Court of Session, now the great consistory; or the question may arise incidentally in the course of another cause. In such judicial inquiries, a regular marriage is not, ‘it is said,’ to be set aside on pretence of a purpose different from marriage, or on probabilities arising out of subsequent acts and circumstances. An irregular marriage suggests doubts, and justifies an investigation into the deliberate purpose of the parties. ‘But while it must be extremely difficult to prove that there was no real intention to marry when there has been a regular and public celebration, there is no decision which fixes the distinction here alleged; and there seems to be no sufficient reason for supporting a simulate marriage against the truth more than another simulate contract.’"

The authority of Bell, therefore, would appear to be in favour of the view for which the pursuer contends. Baron Hume in his Lectures, as published by the Stair Society, vol. i, p. 26, would appear to indicate that even in the case of a regular marriage it is competent (though it may well be difficult) to establish, to the effect of nullifying the marriage, that there was no true matrimonial consent on the part of the parties. This would appear to accord with the opinion which he gave in the case of Dairymple. Fergusson in his Consistorial Law, published in 1829, says this (at p. 160):—

"The assertion has been made, that even the regular marriage, in respect of form, which has been celebrated in facie ecclesiœ, according to the proper sense of these terms, is also liable to impeachment and will be invalid, when it can be demonstrated that, notwithstanding the ceremony, the requisite consent has not in truth been exchanged. In the reports there are various decided cases which prove this proposition."

Fergusson also puts this matter in an earlier passage in this way (on pp. 143 and 144):—

"Still, in all cases, the consent of parties capable of entering into the conjugal state being the essential circumstance, while it is indispensable, it is also, per se, sufficient, both in the regular and in the irregular Scottish marriage, if in all respects of the qualities requisite. In both,"

[and the italics are mine] "when judicially contested, the qualities of that consent must be examined and weighed according to the rules of law, in order to examine whether it is genuine and complete." Lord Fraser, vol. i, p. 435, after considering the cases of Jolly v. M'Gregor, Robertson v. Steuart, Lockyer v. Sinclair, and others, reached the conclusion that there is no rule why there should be a distinction between regular and irregular marriages when it comes to be a question of seeking a nullity on the ground of absence of true matrimonial consent. The matter is perhaps best summed up in the first paragraph of his chapter on the nature and qualities of matrimonial consent where he says:—

"The essential in every marriage is the consent of parties to its constitution. This may be directly given, or inferred from circumstances. But whether the marriage be regular or clandestine; whether by a clergyman after due proclamation of banns, or by consent de prœsenti without such formality; whether inferred from promise cum copula, or cohabitation with habit and repute—there must be consent freely and voluntarily given; it must be serious, and with the intention to enter into marriage; otherwise the proceedings of the parties, though outwardly formal, is held wholly ineffectual in law to constitute the contract.

"

The consent alleged may be a sham or a pretence; or it may be inefficacious, as having been extorted by force; or it may be tainted by error or fraud; and thus an apparently formal marriage may be set aside as a nullity."

In my opinion, this is the correct view of the matter, and where it can be established that there has been no true matrimonial consent, and that the ceremony was only designed as a sham or as an antecedent to true marriage, it is competent to found upon that absence of consent for the purpose of setting aside a marriage regularly celebrated. As the Scottish "irregular" marriage founded upon consent per verba de prœsenti, promise subsequente copula, or habit and repute, was of course unknown in England, and English matrimonial law differs in certain particulars from our own, it may not be altogether helpful to refer to English authority in a matter of this kind; it may at least be noted that there have been cases in England where a form of marriage has been gone through by parties who either thought it was a preliminary to a real marriage or did so for an oblique purpose, and, in such cases, the Court, on being satisfied of the truth of the averments, has granted decree of nullity. Examples of such cases may be found in Hall v. Hall, (1908) 24 T. L. E. 756, where the marriage ceremony was gone through at a registrar's office and the petitioner did not know that she was going through a ceremony of marriage, but thought she was merely putting her name down to be married in the future. Another case of similar kind was Kelly v. Kelly, (1932) 49 T. L. R. 99, in which a Jewess went through a form of marriage with a Jew at a registrar's office under the mistaken belief that it was merely a ceremony of betrothal, and where conjugal relations had never taken place. In that case also decree of nullity was granted. In that case the respondent, who was the nominal husband, suggested that he and the petitioner should go through a form of marriage for the purpose of making out a lease in the petitioner's married name of certain business premises to be occupied by the parties after marriage. In neither of these cases was the marriage consummated, and in each case the petitioner regarded the ceremony as one of betrothal only. In the case of Ford v. Stier, [1896] P 1, decree of nullity was granted where the petitioner had gone through a ceremony of marriage in church in the belief that it was one of betrothal. In all three of these cases apparent consent was given by both parties, and in all three it was successfully established by the petitioner that it was understood that the ceremony was one of betrothal and that it would be followed by one which would truly constitute marriage. Although the Scottish case of. Brady v. Murray was one of an "irregular" marriage, the facts were not dissimilar to those averred here. The parties were both Roman Catholics, and it was established that neither of them regarded the ceremony through which they went as one which constituted marriage as understood by them, and it was found that, in acting as they did, both the pursuer and the defender were acting under a mental reservation as to the nature of the consent which they purported to give. Thus, there are recent illustrations both in the law of England and of Scotland in which a Court has gone behind a consent apparently solemnly and validly interchanged and considered the extent to which the parties were in fact consenting to instant marriage. In none of those was it suggested that the nature of the ceremony in any way affected the competency of the proceedings. The only other question is whether the view of the law which I have expressed is altered or modified by the terms of the Marriage (Scotland) Act, 1939. I do not think that the terms of section 1 of that Act, on which Mr Stewart relied, in any way altered the law as I understand it, because, as Mr Mackay rightly pointed out, the terms of the section are applicable specifically to two persons "who desire to be married to each other in Scotland," and therefore can have no application to the case of persons who are shown on the contrary to have neither desire nor intention to contract marriage. Indeed, the terms of section 4 of that Act would appear to show that, apart from what is expressly provided there, all other grounds of nullity that were pleadable before 1939 are still open. I therefore think that the pursuer is well founded in contending that, if she is able to demonstrate by sufficient evidence that there was no real consent to marriage on the part of herself and the defender Castelli, she would be entitled to the remedy which she seeks. But the question still remains whether the averments which she has now made upon record are sufficient to support the conclusions of the summons. It is difficult at first blush to understand why, if the purpose for going through a form of marriage was as alleged, and if parties genuinely desired to get married, they should not have been married by a priest. But this circumstance, although curious and calling for explanation, is not by itself sufficient, in my opinion, to render the action irrelevant. I think that the pursuer is entitled to proof of her averments, but I also think that the proof should be before answer,

As regards the Lord Advocate's plea of bar, for the reasons which are apparent from the foregoing I do not think that it can be sustained on the pleadings; but, as I propose to allow parties inquiry into their averments on record, I think that it would be better that this plea should remain standing so that it can be dealt with also when the whole matter comes to be finally determined.