In Pitt v. Pitt the contention was that the husband, who had come to Scotland without his wife, and lived there apart from her, had acquired a Scottish domicil, and Lord Westbury, C., observed: "If it had been necessary, which I trust it will not be, to arrive at a different conclusion as to the fact of his domicil (i.e., to find it was in Scotland), I should still have had the greatest possible difficulty in holding that the domicil of the husband was, in a case of this kind, to be regarded in law as the domicil of the wife, by construction or by attraction, so as to compel the wife to follow the husband, and to become subject, for the purposes of divorce, to the jurisdiction of the tribunal, of any country in which the husband might choose, even for that purpose alone, to fix and to declare that he intended to acquire an absolute domicil." 1 His Lordship's doubt was, however, not shared by Lord Kingsdown.2

The exception is supported by dicta in Ringer v. Churchill. These dicta were, it must be remembered, spoken in a case where the question was whether the husband, by forty days' residence in Scotland, could make his wife amenable to the jurisdiction. But the remarks of Lord Mackenzie seem capable of application to a case where genuine domicil has been acquired: "It is laid down, indeed, by jurists, that the husband can settle and fix his proper domicil where he pleases, without regard to the effect which any change of it may produce in the status of his wife. But it would be going very far to hold that a husband, in virtue of this rule, may look round the world for the country where divorce is most easily, or most advantageously for himself, obtained against his wife, and then, by going there himself for a short time, compel her to defend herself against an action of divorce in the forum of that country, the effect of the judgment being to affect her status generally in all countries. If that be the rule, the maximum of facility of divorce existing in any country, must practically rule marriage in all countries, considering the facility of locomotion now existing." s

And Lord Medwyn said: "Would she be bound to go with him to Prussia, for example, if his view was, by a temporary residence there, to obtain a divorce from her for incompati3 1840, 2 D., at p. 316.

14 Macq., at p. 640, where see note. Ibid., at p. 647.

bility of temper.' Even if we read, "by acquiring a permanent domicil there to obtain a divorce," it is by no means clear that the answer must be in the affirmative.

Similar doubts have been expressed by learned judges in England. In Harvey v. Farnie, James, L.J., said: “I am not, however, prepared to say that an English husband could, by going to a foreign country for the sole purpose of domiciling himself in a place where a marriage could be dissolved at pleasure, be enabled to obtain a valid and binding dissolution of his own marriage." 2

Must the Divorce, in order to be recognised, be pronounced by the Courts of a Christian Country?— The rubric to the case of Harvey v. Farnie limits the decision to the recognition of divorce pronounced by "Christian" tribunals. This limitation is not borne out by the opinions in the House of Lords, though it may be thought to be supported by dicta in the judgment of the Court of Appeal. No more, however, is implied in these dicta, than that the decree must be by the Court of a country in which marriage is understood to mean a monogamous union. It can hardly be doubted that the validity of a divorce in a monogamous, but non-Christian country, would be admitted. In one case relating to marriage, Lord Brougham said: “But at anyrate, this is certain, that if the laws of one country, and its Courts, recognise and give effect to those of another, in respect of the constitution of any contract, they must give the like recognition and effect to those same foreign laws when they declare the same kind of contract dissolved." 5

In the recent case of Brinkley v. Attorney-General, it was held that a Japanese marriage was a "Christian marriage" in the sense in which that term had been used in previous cases, and it should follow that a Japanese divorce would be entitled to recognition.

1 1840, 2 D., at p. 323.

2 1880, 6 P.D., at p. 47; ibid., per Cotton, L.J., at p. 49; and see per James, L.J., in Niboyet v. N., 1878, 4 P.D., at p. 8; and per Hannen, J., in Briggs v. B., 1880, 5 P.D., at p. 165. The point was not noticed in the opinions expressed in the House

of Lords in Harvey v. Farnie, 8 App. Ca. 43.

38 App. Ca. 43.

4 See per Cotton, L.J., 6 P.D., at p.48, and per Lush, L.J., ibid., at p. 53. 5 Warrender v. W., 1835, 2 S. and M'L., at p. 213.

6 1890, 15 P.D. 76.

Moreover, it seems clear that to any extent to which recognition may be accorded by our Courts to marriages in polygamous countries, equivalent recognition must be given to divorces there obtained. In one case where an Englishwoman had married a domiciled Turk, the effect of a Turkish divorce upon settlements was disregarded by an English ViceChancellor. But this appears to have been on the ground that due notice had not been given to the wife or the persons interested under the settlements, and that they were thus deprived of the opportunity of appearing to defend. 1

Actions of Separation and Actions of Adherence.Judicial separation completely alters the relation of the spouses, by freeing the injured party from the obligation to fulfil the primary duty of conjugal adherence. Lord Fraser is of opinion that jurisdiction might be sustained in such actions, on grounds less than would be necessary in the case of divorce.2 But, with respect, it is thought that the same rule must apply. If jurisdiction is eventually sustained for divorce, on the ground of "matrimonial home," this will extend to actions for separation. If, on the other hand, domicil alone is to be taken as the test in the one case, no other criterion will be applied to the other.

It may be said that judicial separation does not, strictly speaking, involve a change of status. The parties remain married persons. But it is surely a question for the law of the domicil of the parties to say upon what grounds it will allow persons subject to its jurisdiction to occupy the position of husbands without wives, or wives without husbands. A position so unfortunate and so dangerous to the welfare of the community is one which should be under the control of that community of which the parties are members.3

In the old cases of Gordon v. Pye, and Duntze v. Levett,* the commissaries thought that they would have had jurisdiction to grant a separation but not a divorce a vinculo. But this was on the ratio that the parties being domiciled in England, where separation was permitted, but not divorce, the v. N., 1878, 4 P.D., at p. 21.

1 Colliss v. Hector, 1875, L.R. 19 Eq. 334.

2 ii. 1294.

2 But see per Cotton, L.J., Niboyet

4 Ferg. Reports App., pp. 301, 320, 435, and text, pp. 111, 122, 220.

NULLITY, PUTTING TO SILENCE.

447

Scottish Court must apply the English law, and could give the injured party no higher remedy than was possible by the law of his domicil. But it is now completely settled that the nature of the remedy depends on the lex fori, and no Court can give itself jurisdiction by saying it will limit the remedy to one permitted by the competent tribunal. For the principle that jurisdiction for divorce and for separation is coextensive, there appears to be no direct Scottish authority. But no distinction is suggested in Stavert v. Stavert,2 and in England and America the identity seems to be admitted.

1

3

In Niboyet, Brett, L.J., said: "The same rule" (that without domicil the Court has no jurisdiction), "I confess seems to me to apply, for the same reason, to its power to grant any relief which alters in any way that relation between the parties which arises by law from their marriage. It applies, therefore, as it seems to me, to suits for judicial separation, and to suits for the restitution of conjugal rights. I do not think it does apply to suits for a declaration of nullity of marriage, or in respect of jactitation of marriage."4

A Declarator of Nullity of Marriage, or a Putting to Silence.--An action of this nature stands in a different position. If the woman is the pursuer, she is denying the fact upon which her domicil would depend. She cannot, therefore, be bound to sue in the domicil of the man, which may or may not be her domicil according as the marriage is found valid or invalid. Such an action, therefore, can be competently raised by the pursuer in his or her own domicil if the defender is resident within the jurisdiction.5 But if the woman who seeks for declarator of nullity have already taken up her residence and cohabited with the man in his domicil on the faith of what she believed to be a valid marriage, she has acquired his domicil and may sue in its Courts. And if she is defender and main1 See per L. Brougham in Warrender v. W., 1835, 2 S. and M'L., at p. 203.

2 1882, 9 R. 519.

3 Manning v. M., 1871, L.R. 2 P. and D. 223; Niboyet v. N., 1878, 4 P.D., per Brett, L.J., at p. 19; Firebrace v. F., 1878, 4 P.D. 63 (a suit for restitution of conjugal

rights), Westlake, p. 81; Bishop, Ed. 1891, ii. 69.

44 P.D., at p. 19. But see per Cotton, L.J., ibid., at p. 21.

See Niboyet v. N., 1878, 4 P.D., per Brett, L.J., at p. 19, per James, L.J., ibid., p. 9; Westlake, p. 82.

6 See Turner v. Thompson, 1888, 13 P.D. 37; Gillespie's Bar, p. 175.

tains the validity of the marriage, she cannot plead she was improperly cited, if the citation was at the husband's domicil.1

Aliment. An action by a wife concluding for aliment only, does not involve questions of status unless the marriage is denied. But the decree will be limited to "so long as the defender shall refuse to receive and entertain the pursuer.' It would appear that the Court has jurisdiction where the marriage is admitted, or the woman has ex prima facie the status of wife, although the husband is not domiciled in Scotland.3 But care would be taken to ensure that the relief so granted was only of a temporary character, and until the right of the wife to live separate could be determined by the Court of the husband's domicil.

In an American case where a foreign wife raised such an action, the Court refused to entertain jurisdiction, and it was observed that alimony "is an incident of the marriage, and is a right entirely depending upon the status of the parties, and each state has the right to determine the status and condition of those who are domiciled within its limits. The Courts of this state have, therefore, no jurisdiction to pass upon, and determine the relative duties of husband and wife, both of whom are residents of another state.' "14 But this was a case in which the parties were not even resident within the territory, and the wife pleaded that jurisdiction existed merely because the husband had property within the state."

It is thought a different result would be reached in a case where the parties were resident but not domiciled in the territory, and that, subject to the limitation suggested above, the jurisdiction would be sustained. The principle would, in fact, be the same as that upon which the sheriff, although having no jurisdiction in matters of status, may award interim aliment until the rights of parties can be ascertained by the Court, which possesses universal jurisdiction."