shall be admissible as evidence in all parts of Her Majesty's dominions without any other or further proof of such entry.' SECTION 5. As the Scotch law of divorce differs in some respects from the Divorce. English, it was thought not quite out of place to append a few sentences on this branch of the snbject; to enter into details, to give the effects of it as regards the spouses and the children both as to their personal and proprietary relations, would be far beyond the scope and necessities of this chapter. clearly recog land since Re Whether divorce, or dissolution of marriage on the ground of Divorce. adultery, was permitted in Scotland before the Reformation has nized in Scotbeen a moot question; but it is undisputed that immediately formation. after that epoch divorce a vinculo matrimonii was recognised." According to Lord Fraser, divorce for adultery is part of the common law of Scotland, and not the creature of statutory enactment. 3 The Scotch courts recognize two grounds for divorce: i. Adultery. This ground is open to either husband or wife; Adultery. and where the wife is the guilty party, the co-defender may be cited, and if found particeps criminis, may be found liable for all the costs of the husband. If the courts have jurisdiction over the defender, it is immaterial that the adultery was committed out of Scotland. Non-adher ii. Desertion. Desertion for a period of four years is a ground Desertion, or per se for procuring a decree of divorce; and in this point the ence. law of Scotland differs from that of England. The technical and more accurate expression is "non-adherence." It was formerly necessary to commence proceedings with an action of adherence, but by the Conjugal Rights Act, 1861, it is no longer necessary prior to any action for divorce to institute against the defender any action of adherence, nor to charge the defender to adhere to the pursuer. This now enables the complaining party to commence the action for divorce immediately on the expiry of the four years' desertion. Mere separation is not desertion, Separation not which must be a withdrawal from cohabitation and companionship against the the pursuer's will; thus, absence of the husband on necessary business, or imprisonment in a foreign land, would 1 17 & 18 Vict. c. 80, s. 58. 2 Collins v. Collins, 9 App. Cas. 205. 3 H. & W. 1141. It received statutory recognition soon after the Reformation. Per Lord Watson in Collins v. Collins (ubi sup., p. 246). 4 24 & 25 Vict. c. 86, s. II. desertion. Defences to a suit for divorce. Condonation. Connivance. Collusion. Oath of calumny. Scotch courts. Domicil to tion must be bona fide. not be deemed desertion; but if the wife refused to accompany her husband abroad, and he left her, her act and not his would constitute desertion. The Scotch courts (like the English) recognize three defences to a suit for divorce for adultery :— (1) Condonation, or remissio injuria, is the forgiveness after knowledge of the adultery by the injured spouse. It may be either express, as by words, or tacit, as by continued cohabitation.' (2) Connivance as to the commission of the adultery. If a husband has been actively instrumental in exposing his wife to temptation or thrown her in its way, if he encourages another to solicit her chastity, or leads her into such society as is likely to cause her virtue to fail, he cannot successfully maintain a suit for divorce. Passive acquiescence on his part is equally fatal to the husband's claim for relief. (3) Collusion, or a deliberate arrangement between the parties to facilitate proceedings for divorce, is a ground when brought to the knowledge of the court for refusing the divorce sought by the pursuer. With a view of checking collusion, all suits for divorce are preceded by an oath, called the "oath of calumny," administered to the pursuer. In this action, the taking the oath calls upon the pursuer to declare that the defender has been guilty of adultery, and that the libel is true, and that there has been no collusion between them, or them and other parties, to procure the divorce. A false oath of calumny, is not, however, visited with the pains and penalties of perjury." Jurisdiction of It is impossible to discuss Scotch divorce without adverting to the most important question whether domicil or residence gives found jurisdic- jurisdiction to the Scotch courts in matters of divorce. This point has been hotly contested; and at one time where the defender resided for forty days in Scotland and was cited in Scotland before he or she left it the Scotch courts claimed jurisdiction, and divorces were granted in consequence of the jurisdiction so founded, although the real domicil of the defender was out of Scotland. But since the case of Pitt v. Pitt, in the House of Lords there has been a series of cases that clearly decide 3 4 1 Full condonation of adultery, followed by cohabitation as man and wife, is a remissio injuriæ absolute and unconditional, and affords an absolute bar to any action of divorce founded on the condoned acts of adultery. Condonation of adultery-cohabitation following-cannot be made conditional by any arrangement between the spouses. Collins v. Collins, 9 App. Cas. 205. 2 As a matter of fact, it does not seem to have any beneficial effect in furthering the ends of justice. 3 4 Macq. H. L. Cas. 627, which was decided by the House of Lords, as a Scotch Court of Appeal, who reversed the decision of the Court of Session, which had upheld the judgment of the Lord Ordinary. Carswell v. Carswell, 8 Court Sess. Cas. 4th series (Rettie), 901; Stavert v. that mere casual residence in Scotland has no effect in founding divorce jurisdiction so as to constitute any decree of divorce as of avail beyond the jurisdiction of the Scotch courts. must be bona fide and not merely colourable.' The domicil Stavert, 9 Court Sess. Cas. 4th series (Rettie), 519; Watts v. Watts 12 Court Sess. Cas. 4th series (Rettie), 894. 1 See Bonaparte v. Bonaparte [1892], P. 402. MARRIAGES OF THOSE BELONGING TO OTHER DENOMINATIONS FORMALITIES PRECEDING GRANT OF CERTIFICATE OR 59 59 CONSTITUTION OF COURT FOR MATRIMONIAL AND OTHER CAUSES THE laws of Ireland affecting the marriages of those persons now called Protestant Episcopalians (formerly members of the United Church of England and Ireland), and of the members of the various denominations, Roman Catholics excepted, are not in many essential points different from those of England dealing with the same subject. There are, of course, differences, and only such differences will be discussed. The law affecting Roman Catholic marriages will also be set forth. foundation of law. The foundation of the marriage laws of Ireland, as of Eng- Canon law the land, is the canon law, based more or less on the civil. The Irish marriage canon law was the law of the Church of Rome; and when by degrees the Church arrogated to herself power over all matters which might by any ingenious twisting be made to concern the spiritual welfare of the people-e.g., wills, intestacy, and especially matrimony-its own peculiar legal system governed and regulated these affairs. The recognized canons existing before 1603, and those enacted in that year, formed the standard rules for the governance of the Churches of England and Ireland; and the marriage law of the two countries (as affecting the members of those churches) was the same previously to the passing of 26 Geo. II. c. 33. In 1844 the Act of 7 & 8 Vict. c. 81, was 7 & 8 Vict. c. passed. The marriages of Presbyterians and other nonconforming bodies were chiefly affected. Its more important provisions, so far as they mark a difference between the laws prevailing in the two countries are as follows: Clergymen of the United Church of England and Ireland were bound to solemnize marriage on the production of a registrar's certificate, as though it had been a certificate of due publication 1 Steadman v. Powell, 1 Add. 58. One important difference remained after 1753, viz., in Ireland suits founded on pre-contract could be entertained until 1818 (58 Geo. III. c. 81, s. 3), when they were abolished. 2 This enactment is directly traceable to the decision of the House of Lords in Reg. v. Millis, 10 Cl. & F. 534. One George Millis was indicted for bigamy at the assizes for the county of Antrim in 1842, and the following facts were proved and found by the jury: Millis, in January 1829, accompanied by one Esther Graham, a spinster, and three other persons, went to the house of the Rev. John Johnston, the placed and regular minister of the congregation of Presbyterians at Tullylush, in the county Down; and there Millis and Graham entered into a contract of present marriage in the presence of the said clergyman and the other persons, and the ordinary religious Presbyterian ceremony was performed by the said clergyman. Millis and Graham cohabited together as man and wife for two years. Millis at the time of the contract was a member of the Established Church of Ireland, but it did not appear whether Esther Graham was a member of such Church, or a dissenter; it was found she was not a Roman Catholic. While the said Esther Graham was alive, Millis intermarried in England with one Jane Kennedy, according to the forms of the Established Church of England. Millis was apprehended in September 1841, in Belfast, and given into custody on a charge of bigamy. The case was removed by certiorari to the Court of Queen's Bench, and the Court held that a marriage contract per verba de præsenti, though followed by consummation, did not constitute a valid marriage according to the laws of Ireland, and that the presence of a clergyman in holy orders was essential to the validity of such marriage. It was further held that a Presbyterian minister was not a clergyman in holy orders competent to celebrate a marriage between members of the Established Church, or between a member of that Church and a Presbyterian. Mr. Justice Perrin dissented from both rulings, and Mr. Justice Crampton joined with him in dissenting from the last. The Court was divided, but Perrin, J., gave a formal judgment that the prisoner should be acquitted, and the case was taken up to the House of Lords on a writ of error. judges were called in to assist the law lords, and the result was that three of the lords were for an acquittal and three for a conviction, and so the judgment of the Court below in favour of the prisoner was upheld. This decision settled the law until it was altered by the Act of 1844. Notwithstanding the solemnity of the argument and the elaboration of the judgment, this decision has been much questioned (and rightly so), both on account of the law laid down and the circumstances of the judgment. See Catterall v. Catterall, Rob. 582; Beamish v. Beamish, 9 H. L. Cas. 336; Reg. v. Mainwaring, 26 L. J. M. C. 10. The 81. |