Dolphin v. Robins and Another [1859] UKHL 3_Macqueen_563

UKHL
Dolphin v. Robins and Another
[1859] UKHL 3_Macqueen_563
REPORTS OF CASES ARGUED AND DETERMINED IN The House of Lords.

No. 23

Dolphin, Appellant v. Robins and Another , Respondents

1859 . Feb . 24th , 25th . July 26 , 27th . August 4th .

Subject_ English Marriage. — Scotch Divorce. —

rights would not be equivalent to a judicial sentence enabling the wife to live away from her husband; p. 578.Per Lord Cranworth: I believe your Lordships are all of opinion that it must be taken now as clearly established that the Scotch Court has no power to dissolve an English marriage where the parties are not really domiciled in Scotland, but have only gone there for such a time as, according to the doctrine of the Scotch Court, gives them jurisdiction in the matter; p. 575.Per Lord Cranworth: Whether the Scotch Court could dissolve an English marriage, where there had been a bonâ fide bonâ fide domicile, is a matter upon which I think your Lordships will not be inclined now to pronounce a decided opinion; p. 575.A Scotch decree of divorce, purporting to dissolve an English marriage, where there is no real Scotch domicile, will not enable the wife to acquire a domicile distinct from that of her husband; and such a Scotch decree of divorce will not have the effect of a divorce à mensâ et thoro à mensâ et thoro .Per Lord Cranworth: Where by judicial sentence the husband has lost the right to compel the wife to live with him, and she can no longer insist on his receiving her, the argument that she cannot set up a home of her own, and so establish a domicile different from that of her husband, is not to my mind altogether satisfactory; p. 577.Deed of Separation : A deed of separation will not enable the wife to acquire a separate domicile,— Tovey v. Lindsay commented upon; p. 579.Per Lord Cranworth: The circumstance that the wife might have a valid defence to a suit for restitution of conjugal

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Per Lord Cranworth: There may be exceptional cases, in which the wife, even without judicial separation, may acquire a separate domicile, as where the husband has abjured the realm, has deserted his wife, and established himself permanently in a foreign country, or has committed felony and been transported; p. 579.Per Lord Kingsdown: If any expressions of my noble and learned friend have been supposed to lead to the conclusion that his impression was in favour of the power of the wife to obtain a foreign domicile after a judicial separation, it is an intimation of opinion in which, at present, I do not concur. I consider it to be a matter, whenever it shall arise, entirely open for the future determination of the House; p. 581.

Subject_ Collusion. —

A decree of divorce procured by the execution of a preconcerted scheme corruptly concocted between the parties, is a mere mockery, and leaves the wife under the marital control of her husband.

Subject_ Bigamy. —

Remarks by Lord Cranworth on the Statutes. 1 Jac. 1. c. 11. and 9 Geo. 4. c. 3.This was an Appeal from the English Court of Probate, but the question turned entirely on the effect to be attributed to a sentence of divorce pronounced by the Court of Session in Scotland, purporting to dissolve an English marriage. The decision is therefore as interesting to the Scotch as to the English lawyer; and a desire was intimated that it should be included in these reports.In delivering judgment in the Court below on the 5th March 1858, the Right Honourable Sir Cresswell Cresswell , the Judge of the Court of Probate, stated the facts and arguments in the following terms:—
“In 1822 Mr. Dolphin, an Englishman, domiciled in England, married an English lady in England; and they afterwards lived together at his house in Gloucestershire.

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“‘I revoke all foregoing wills made by me up to this date, the 23rd day of June 1856, Paris;’ and this was alleged to be by the law of France a valid will. Mrs. Dolphin died soon afterwards. A caveat was entered on behalf of Mr. Dolphin; and the executors named in the will of 1854 having propounded it, the proctor of Mr. Dolphin brought in an allegation pleading the several matters above-mentioned.

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This was opposed on the ground that the facts alleged afforded no answer to the claim of the executors to have probate of the will of 1854, for that the Scotch Court had no power to dissolve a marriage solemnized in England between English people domiciled in England, and that consequently Mrs. Dolphin, although resident in fact in France with De Pontes, remained domiciled in England, and the document executed by her in the convent in Paris, not being attested as required by the statute 1 Vict. c. 26., could not have any effect upon the will executed in 1854. The cases of Rex v. Lolley(a) and Conway v. Beazley(b) were cited in support of this view.The allegation in its then state was very vague as to the nature and duration of Mr. Dolphin's residence in Scotland before the suit for divorce was instituted; and I requested that it might be reformed, so as to enable me to judge how far the case was similar in circumstances to that of Conway and Beazley. That has been done.The allegation does not state that Mr. Dolphin had given up his house and establishment in England, or that he had left it without intention of returning, or that he had gone to Scotland with the intention of remaining there. It appears to me that the case in this respect is governed by Lolley's case and Conway v. Beazley ; and that the marriage was not dissolved.But it was contended, secondly, that admitting that the Scotch Court had not power to dissolve the marriage, yet that the sentence would have the effect of a divorce à mensâ et thoro à mensâ et thoro ; and that the domicile of the wife would no longer be presumed to be that of the husband, for which Williams v. Dormer (c) was cited as an authority. But the sentence of

Footnote

( a ) Rus. & Ry. 237.( b ) 3 Hagg. 639.( c ) 2 Robertson, 505.

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“It follows, then, that the revoking instrument not having been executed by Mrs. Dolphin in conformity with the law of her domicile is inoperative; the will remains unrevoked; and the allegation, if admitted, would afford no answer to the claim of the executors to have probate of that will. It must therefore be rejected.”
Dr. Deane , Q.C.: I do not know whether this is the proper time to make the application; but this being an interlocutory decree, we are unable to appeal without your Lordship's permission, which we should be glad to obtain.Sir C. Cresswell : Oh, certainly.Dr. Deane : That, I presume, would include an order to stay proceedings?Sir C. Cresswell : Of course.The appeal was presented to the House in due time, and was subsequently set down for hearing in the usual course.The Solicitor-General (a) , Dr. Twiss , and Dr. Deane appeared and were heard as Counsel for the Appellant.Mr. Roundell Palmer , Dr. Addams , and Dr. Spinks addressed their Lordships on the behalf of the Respondents.At the close of the argument the further consideration of the case was ordered to be adjourned.

Footnote

( a ) Sir Hugh Cairns.

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On the 4th of August 1859, the following opinions were pronounced:—

Lord Cranworth's opinion .

Lord Cranworth :

My Lords,this Appeal from the Court of Probate was heard at your Lordships' bar early in the present year. Its object was to reverse a decree of Sir Cress-well Cresswell , dated the 5th of March 1858, whereby he rejected an allegation brought in by the Appellant.The facts of the case are shortly as follows:—In the year 1822 the Appellant, an Englishman domiciled in England, married Mary Ann Payne, an Englishwoman, at St. George's, Hanover Square. He and his wife afterwards lived together at different places in England, and there was issue of the marriage one child only, who died shortly after its birth. In the year 1839, differences having arisen between the Appellant and his wife, they separated, and deeds were then executed whereby provision was made for the separate maintenance of the wife, then Mary Ann Dolphin, for her life, and it was agreed that the trustees named in the deeds should hold certain property therein specified upon such trusts as the said Mary Ann Dolphin, notwithstanding her coverture, by any deed or deeds, instrument or instruments in writing, to be sealed and delivered by her in the presence of and attested by two or more credible witnesses, or by her last will and testament in writing, or any codicil or codicils thereto, or any writing in the nature of or purporting to be her last will, to be signed and published by her in the presence of and attested by two or more credible witnesses, should, from time to time, declare, direct, and appoint.Mary Ann Dolphin died on the 28th of September 1856, and in the following year the Respondents

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It is not disputed that the will and codicil so propounded were both duly executed by her in manner required by the deeds giving her the power to make a will. But the Appellant opposed the grant of probate, and brought in an allegation setting up another will subsequent in date to the will and codicil of April 1854. This allegation was afterwards amended, and was ultimately rejected by the decree of the Judge, dated the 5th of March 1858. And it is against this decree that the present appeal is brought.In order to enable us to say whether the decree was or was not right we must look carefully at the contents of the allegation. It begins by stating the marriage of the Appellant in 1822, and his subsequent cohabitation with his wife, the birth of their child, and its subsequent death very shortly after it was born, the separation of the Appellant from his wife in 1839, and the deeds making a separate provision for her, and giving her the power to make a will. This power is set out in the very words to which I have already called your Lordships' attention.The allegation then proceeds as follows:—“That in the month of February 1854 the said Vernon Dolphin (a) left England and went to Scotland, that on the 23rd day of February 1854 he arrived at Edinburgh, and from such time until the 25th of the said month he resided at the Waterloo Hotel in Edinburgh aforesaid, when he left the said hotel, and from such time until the 3rd day of April following he resided

Footnote

( a ) The Appellant.

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The allegation then goes on to state that in the month of October 1854, the said Mary Ann Dolphin was duly married in Scotland to Amedée Theodore Davesies de Pontes, all proper steps having been taken to make that marriage valid in France, where he was domiciled, being then a general in the French army, so that he and the said Mary Ann became, according to the laws of France, lawful husband and wife; and that they from and after the marriage lived and cohabited together as man and wife, and took up their permanent residence at Paris, never again visiting Scotland or England; and that the said Mary Ann, in the beginning of the year 1855, abjured the Protestant religion, was baptized by a Roman Catholic priest, and became herself a Roman Catholic.The 18th Article is as follows:—“That the said Mary Ann Dolphin, having herself a mind and intention finally to make her last will and testament, and thereby to revoke all former wills and codicils by her made and executed, did, in pursuance of the power vested in her by the aforesaid indenture of the 15th day of November 1839, and of all other powers and authorities her enabling, with her own hand draw up and write the very will now remaining in the archives of Ferdinand Léon Ducloux, a notary in Paris, the said will being in words following, to wit,—‘I revoke all foregoing wills made by me up to this date, the twenty-third June, one thousand eight hundred and fifty-six. Paris.’ And having so done, and in approbation thereof, she, on the said twenty-third day of

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The allegation then avers that by reason of the premises the deceased was on the 23rd of June 1856, and at the time of her death, lawfully domiciled in France; and then the 22nd Article proceeds thus:
“That by the laws, usages, and customs which were in force on the said 23rd day of June 1856, and at the time of the deceased's death, and which still are in force in France, any holograph will, codicil, or testamentary instrument made, dated, signed, and executed in manner and form as pleaded and set forth in the 18th Article of this allegation,” (that which I have just read,) “was and is good, valid, and effectual to all intents and purposes whatsoever.”
The very learned Judge of the Court of Probate rejected this allegation of the Appellant on the ground that it stated no case impeaching the validity of the will and codicil propounded by the Respondents.The grounds on which the Appellant relied were that by the proceedings in Scotland the marriage with the Appellant was dissolved so as to enable the deceased to contract a new marriage; that she did, in fact, contract a new marriage in 1854 with General de Pontes, a domiciled Frenchman, and became herself domiciled in France, and so continued from the time of her marriage till her death; and that while so domiciled she made the will of 23rd June 1856 in the mode required by the laws of the country of her domicile, which, therefore, was a valid revocation of the will and codicil of April 1854. The Appellant farther contended

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The learned Judge of the Court below was of opinion that the English marriage was not dissolved by the Scotch divorce, and that so the deceased remained up to the time of her death the wife of the Appellant, whose domicile was and had always been in England; that his domicile was her domicile, and that the will, or alleged will, of June 1856, not having been executed in the mode required by our laws, had no effect on the will and codicil of 1854. He further held that the Scotch decree did not operate as a divorce à mensâ et thoro à mensâ et thoro , and so made a decree rejecting the allegation.The same arguments were renewed and urged with great ability at your Lordships' bar; but they failed to convince me, or, as I believe, any of your Lordships who heard the case.On the first question, the validity of the Scotch divorce to dissolve the English marriage, the decision in Lolley's case is conclusive.It was, indeed, contended in the argument here that Lolley's case did not necessarily govern that now under consideration, for that since that decision the principles applicable to this question have been materially changed by the Statute 9 Geo. 4. c. 31. But this seems to me altogether a mistake. In Lolley's case it appeared that he, having been married in England, afterwards went to Scotland, and while he was there not having become a domiciled Scotchman (for that must be assumed to have been the state of the facts), his wife obtained a Scotch decree for a divorce on the ground of adultery committed by him

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Lolley's case has been frequently acted on. In the case of Conway v. Beazley , Dr. Lushington after much consideration acted on it, treating it as settled law where there is no bonâ fide bonâ fide domicile in Scotland, meaning by “ bonâ fide bonâ fide domicile,” a real domicile, and not a domicile assumed merely for the purpose of

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On the other point decided in the Court below (a) , I think there can be no doubt. If the Scotch divorce did not operate as a dissolution of the marriage, it clearly did not operate as a divorce à mensâ et thoro à mensâ et thoro . It was not intended so to operate, and it is by no means certain that the deceased wife would have desired to obtain such a decree.It appears therefore to me that on both the points raised in argument before him the learned Judge below was clearly right. But on the argument here a new point was started. It was contended that without any dissolution of the marriage, or any divorce à mensâ et thoro à mensâ et thoro , the deceased was, by the acts of the husband appearing on the allegation, placed in a situation enabling her to choose a domicile for herself separate from that of her husband; and that, in fact, she did choose Paris as her domicile, and there lived and died; that when so domiciled she made the will of the 23rd June 1856, valid according to the laws of the place of her domicile, which therefore ought to have been admitted to proof; or at all events that as her domicile was, at her death, French, the English will and codicil ceased to be operative.

Footnote

( a ) The Court of Probate.

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This point was urged with considerable ability and force, and as it was one which had not been put forward below, and therefore had not been considered by Sir Cresswell Cresswell , your Lordships desired to have a second argument at the bar confined to this single point. Accordingly, your Lordships, a few days since, heard Sir Hugh Cairns for the Appellant on this point, and Mr. Roundell Palmer for the Respondents, both of whom did full justice to the question argued.My Lords,I have given my best consideration to the able arguments then addressed to us, and have come to the conclusion that there is nothing in this new view of the case which ought to induce your Lordships to disturb the decision of the Court below.On the part of the Respondents it was argued that even if there had been a divorce à mensâ et thoro à mensâ et thoro , the wife could not have acquired a domicile of her own; and in support of that argument reliance was had on the clear and undoubted doctrine of our law that husband and wife are to be treated as one person; that their union, whatever decree may have been made by the Ecclesiastical Court, is by the common law absolutely indissoluble; that the wife can neither sue nor be sued without her husband; that the husband is bound to maintain her and to afford her a home; that with reference to the Poor Laws, her settlement is her husband's settlement; and, generally, that in the eye of the law they are so completely identified, that the notion of her acquiring a separate home could not for a moment be admitted.I desire not to be taken to adopt this argument at once to the full extent to which it was pushed. If in this case the wife had obtained a divorce à mensâ et thoro à mensâ et thoro , and had then gone to Paris and there established herself in a permanent home, living there till her death

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It was, indeed, argued strongly that here the facts show that the husband never could have compelled his wife to return to him. The allegation of the Appellant, it was contended, contains a distinct averment that the husband had committed adultery, and this would have afforded a valid defence to a suit for restitution of conjugal rights, and so would have enabled the wife to live permanently apart from her husband, which it is alleged he agreed she should be at liberty to do. But this is not by any means equivalent to a judicial sentence. It may be that where there has been a judicial proceeding, enabling the wife to live away from her husband, and she has accordingly selected a home of her own, that home shall for purposes of succession carry with it all the consequences of a home selected by a person not under the disability of coverture. But it does not at all follow that it can be open to any one, after the death of the wife, to say, not that she had judicially acquired the right to live separate from her husband, but that facts existed which would have enabled her to obtain a decree giving her that right, or preventing the husband from insisting on her return. It would be very dangerous to open the door to any such discussions, and, as was forcibly put in argument at the bar, if the principle were once admitted, it could not stop at cases of adultery; for if the husband, before the separation, had been guilty of cruelty towards the wife, that, no less than adultery, might have been pleaded in bar to a suit for restitution of conjugal rights. It is obvious, that to admit questions of this sort to remain unlitigated during the life of the wife, and to be brought into legal discussion after

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I am therefore clearly of opinion that, without going into questions as to whether the facts are or are not duly pleaded, they afford no ground of defence to the claim of the Respondents, and that the Respondents are entitled to insist on the will and codicil of April 1854 as being the last will and codicil of the deceased.I have already observed that the decision in this case will be no precedent where there has been a decree for judicial separation. And before quitting the subject I should add, that there may be exceptional cases to which, even without judicial separation, the general rule would not apply; as, for instance, where the husband has abjured the realm, has deserted his wife, and established himself permanently in a foreign country, or has committed felony, and been transported. It may be that in these and similar instances the nature of the case may be considered to give rise to necessary exceptions. I advert to them only to show that the able argument of Sir Hugh Cairns has not been lost sight of. It is sufficient to say, that in the Appeal now before the House no such case of exception is to be found.

Footnote

( a ) 1 Dow. 138.

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Mr. Palmer , at the close of his argument observed, that whatever might become of the will and codicil of 1854, the French will of the 23rd June 1856 could not be admitted to probate, for want of due attestation, not having been executed in the manner and with the formalities required by the power. I incline to think he is right in this suggestion. But whether that would be decisive as to the validity of the prior will and codicil, supposing the domicile of the deceased to have been French, might turn on nice questions which have not been argued in this case, as to how far the doctrine that a will of personalty, to be valid, must be a will valid according to the law of the domicile of the deceased at his death, would apply to the case of a will of a married woman made under a power. Into this question it is unnecessary for us to travel.I cannot conclude without saying that, although I am sorry for the delay which the second argument has occasioned to the parties, I cannot regret the course your Lordships took in requiring it. The question was one of great importance, and, not having been raised in the Court below, it required a special consideration when brought for the first time under the notice of this House. I must add that my noble and learned friends, Lord Chelmsford , Lord Brougham , and Lord Wensleydale , before leaving town, told me that they entirely concurred in this view of the subject. Lord Brougham had expressed some little doubt upon the matter, but he stated that he did not think it necessary to remain in order to express that doubt, as his single opinion could not affect the decision.I shall conclude by moving your Lordships to affirm the decree below, and to dismiss the Appeal. But as the questions discussed have arisen from the conduct

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Lord Kingsdown's opinion .

Lord Kingsdown :

My Lords,my noble and learned friend has done me the favour to communicate to me the opinion which he proposed to express to the House, and I have had an opportunity of communicating with him my views upon it; and as I concur generally in the result at which he has arrived, and for the reasons upon which that conclusion is founded, I think it will be most conducive to the administration of justice in your Lordships' House in a satisfactory manner, to content myself with expressing that assent instead of repeating the arguments or going in detail into the facts to which he has already alluded.One thing only I am anxious to guard against. If any expressions of my noble and learned friend have been supposed to lead to the conclusion that his impression was in favour of the power of the wife to acquire a foreign domicile after a judicial separation, it is an intimation of opinion in which at present I do not concur. I consider it to be a matter, whenever it shall arise, entirely open for the future determination of the House.My Lords,there is only one other matter which I will take the liberty of pointing out to your Lordships, which is this, it was not mentioned, I think, in the course of the argument, but it appears to show most distinctly that no question of law really can arise with respect to this divorce, that it was a mere collusion from the beginning to the end between the husband and the wife. My Lords, the

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If I had regarded this case as capable of being proved at all, I should still have thought that it would have been impossible to prove it under the present allegation. It would have appeared to me that the allegation that this lady had by an act of her own volition, by her own spontaneous act, chosen and acquired a foreign domicile, was quite inconsistent with the statement in this allegation that she had acquired that domicile not by her own volition, but in spite of her own volition (it might be), by becoming the wife of a domiciled Frenchman. But, my Lords, as the only effect of giving leave to amend this allegation would be that a case would be brought forward which it would be utterly impossible to sustain, I entirely concur in the conclusion which my noble and learned friend has proposed, that this Appeal should be dismissed, and, as he suggests, without costs.Lord Chancellor's opinion .The Lord Chancellor (b) :My Lords,as I had not the advantage of hearing the whole argument, I refrain from giving any opinion

Footnote

( a ) See the Duchess of Kingston's case, 20 State Trials, as to the worthlessness of a sentence had by collusion. See also Shedden v. Patrick , 1 Macq. Rep. 535.( b ) Lord Campbell.

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Order affirmed, and Appeal dismissed .