![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] |
![]() |
||||||||
Scottish Court of Session Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> F v F [1945] ScotCS CSIH_1 (23 February 1945) URL: https://www.bailii.org/scot/cases/ScotCS/1945/1945_SC_202.html Cite as: 1945 SLT 193, [1945] ScotCS CSIH_1, 1945 SC 202 |
[New search]
[Context]
[Printable version]
[Help]
23 February
1945
F |
v. |
F |
for
declarator
of nullity of marriage on the ground of impotency. The peculiarity of the action is that the impotency
founded
on is that of the pursuer himself and not, as is usual, that of the other spouse. The action
was
duly
served on the
wife,
who
lives at a known address in Alloa, but she has not appeared to
defend
it. It
came
before me on an unopposed motion to allow a proof, but as I
was
not satisfied that such an action
was
competent
at the instance of the impotent on spouse, I postponed
dealing
with
the motion until I had heard
counsel
on the matter. The hearing took place on 10th January 1945, on
which
date
I made avizandum.
No case
appears yet to have been
decided
in Scotland
where
the
competency
of an action of nullity on the ground of impotency at the instance of the impotent spouse has been upheld. On the
contrary,
there are a number of
dicta,
judicial and otherwise,
which
indicate that such an action is
competent
only at the instance of the aggrieved, i.e., the potent, spouse. The institutional
writers
do
not appear to me to
deal
with
the matter one
way
or the other, but Lord
Fraser
(Husband and
Wife,
(2nd ed.) vol. i, p. 98)states
categorically
that the rule is settled that none but the aggrieved spouse
can
institute an action
for
annulling the marriage on the ground of impotency. The law is stated to the same effect in
Walton
(Husband and
Wife,
(2nd ed.) at p. 3). In the
case
of AB v.
CD,
(1906) 8
F.
603, at p. 606, Lord President
Dunedin
said:
"It has long ago been settled that impotency on the part of one spouse at the time of the marriagecontinuing
thenceforth is a ground
for
the avoidance of the marriage at the instance of the other,"
and his Lordship repeated that statement of the law in his speech in the House of Lords in G. v. G., 1924 S. C.
(H. L.) 42, at p. 44. It is true that in neither of these
cases
was
the question of the
competency
of a spouse
founding
on his or her own impotency raised, but it is
difficult
to think that Lord
Dunedin
would
have introduced the
words
"at the instance of the other" into his statement of the law had he
conceived
the law to be that the impotent spouse as
well
as the potent spouse might bring the action. In Administrator of Austrian Property v. Von Lorang, 1926 S.
C.
598, Lord President
Clyde,
at p. 616, says:
"Actionsfounded
on impotency
differ
![]()
from
other actions of nullity…in the important respect that they are only
competent
between the spouses, and even then only at the instance of the spouse aggrieved."
Again, in L. v. L., 1931 S. C.
477, the same judge, at p. 481, says:
"Thefact
that an action of nullity on the ground of impotency is
competent
to the aggrieved spouse alone is
consistent
only
with
the view that impotency is not (like propinquity
for
instance) an absolute impediment to a valid marriage."
Lord Clyde
was
not in these
cases
considering
the precise question
which
is now raised, but his meaning in both of the above passages is unmistakable, namely, that no one but the aggrieved, i.e., the potent, spouse
can
competently
raise an action of nullity on the ground of impotency. Lord Moncrieff, in the latter
case
at the top of page 480, also refers to "the privative title of the aggrieved spouse to state the plea." That this had
come
to be regarded as the accepted practice in the matter may be seen
from
unqualified statement in Maclaren,
Court
of Session Practice at p. 717, that an action on the ground of impotence
can
be raised only by the aggrieved party. In the
comparatively
recent
case,
however, of S. G. v.
W.
G., 1933 S.
C.
728, the Second
Division
treated the point now at issue as still an open one, Lord Justice-
Clerk
Alness and Lord Hunter expressly reserving their opinions on it, Lord Murray going
further
and indicating (no
doubt
obiter) a view in
favour
of the
competency
of an action of nullity proceeding at the instance of the impotent spouse. His Lordship, at pp. 734 and 735, reviews at some length the state of authority on the matter, although in his review he omits the pronouncement by Lord
Dunedin
above referred to and the
dictum
by Lord
Clyde
in the Von Lorang
case.
He professes to
find
explicit authority
for
his view in Bell's Principles, section 1524, but I respectfully venture to
doubt
whether
the passage in Bell really goes
further
than to state
what
is a
well-established
rule, namely, that the plea of impotency is personal to the spouses and
cannot,
as in the
case
of other grounds upon
which
marriage may be annulled, be taken by third parties having a patrimonial interest. The passage in Bell may, I think, be read as meaning no more than that either spouse being potent may take the plea against the other spouse, but that no party other than one or other of the spouses
can
raise it. Lord Murray also refers to Hume on
Crimes,
i, 456, but the passage there referred to
does
not seem to me to lend any support to the view than an impotent spouse
can
found
on his or her own impotency as a ground
for
having the marriage annulled. The
writer
says:
"Impotence, like adultery ordesertion,
is the subject of a pure personal plea;
which,
if the spouse herself
withhold,
no third party
will
be allowed to use."
That passage, so far
as it goes, appears to me to
contemplate
action only at the instance of the aggrieved spouse. The
writer
seems to have in mind the
case
of a
wife
who
is aggrieved by
finding
herself married to an impotent husband. I
further
doubt
whether
any reliable assistance is to be got
from
the English
case
of G. v. G., (1908) 25 T. L. R. 328. English
decisions
are seldom a safe guide to
follow
in Scottish
consistorial
matters, but in this particular
case
it should be noted that the nullity
was
raised by a
wife
who
was
pleading the impotency of her husband.
What
the
Court
found
was
that the husband's genital organs
were
unusually large
while
those of the
wife
were
unusually small, and that sexual intercourse between them
was
impossible unless the
wife
submitted to an operation
which
involved little or no
danger,
but
which
she refused to undergo. The Master of the Rolls treated the matter as one in
which
the
Court
had a
discretion,
and the relief sought
was
granted, the
Court
apparently taking the view that the
wife
committed
no
wrong
in refusing to undergo the operation, and that
consummation
of the marriage
was
impossible
without
it. The
case
was
thus somewhat special, and, as Lord Murray pointed out,
did
not raise the present point purely.
Except for
the
case
of S. G. v.
W.
G., 1938 S.
C.
728, I should have
dismissed
the present action as incompetent, but, as the question of
competency
which
now arises
was
in that
case
expressly left open, I think it is proper that I should meantime not
deal
with
the motion
for
a proof, but should report the
case
to the Inner House.
The case
was
heard before the
First
Division
(
without
Lord
Carmont)
on 6th
February
1945, Lord Mackintosh also being present.
At advising on 23rd February
1945 (
when
Lord
Carmont
was
present, and Lord Russell and Lord Mackintosh
were
absent),—
case
in order to obtain a ruling
whether
the impotent spouse has, equally
with
the other spouse, the right to have the marriage
declared
null on the ground of his own impotency.
This question has not been decided
in any reported
case
in our
Courts.
This is not perhaps surprising, because actions of nullity of marriage on the ground of impotency are rare, and it may be supposed that in most
cases
the potent spouse is
willing
to take proceedings.
The question is not dealt
with
in our institutional authorities except in Bell's Principles (section 1524). There it is said that "incapacity of
conjugal
duties
is a ground on
which
marriage may be
declared
void, at the instance of either of the parties, but is not in itself a nullity pleadable by others." The
comment
of the Lord Ordinary in his report is that this passage may be read as meaning no more than that either spouse, being potent, may take the plea against the other spouse, but that no party other than one of the spouses
can
raise it. In my view, however, the learned editor's
footnote
gives the true interpretation, saying "the text here appears to recognise the
competency
of a
challenge
of the marriage by the impotent spouse himself. Lord
fraser
in some passages restricts the remedy to ‘the aggrieved spouse’; but there seems to the neither reason nor authority
for
laying
down
such an absolute rule" In my opinion, therefore, the pursuer is entitled to
claim
that the great authority of Bell supports the
competency
of the action. Lord
Fraser
in his treatise on Husband and
Wife
emphatically excludes the right of the impotent spouse to sue. Thus he says (2nd ed., pp. 80-81):—
"Impotency on the part either of the man or thewoman
is an impediment to marriage, and the marriage may be
declared
null
from
the beginning at the instance of the potent spouse, but not at the instance of the impotent, nor at the instance of any third person."
In a footnote
he
cites
passages
from
Stair (I, iv, 6) and Erskine (I, vi, 7), but they
do
not support the
proposition that the impotent spouse cannot
sue. Lord
Fraser
also says (pp. 83-84):—
"Thefact
that this plea of impotency, as a means of voiding a marriage,
cannot
be stated by any other than the spouse aggrieved, proves that impotency is not a bar to the
constitution
of marriage, though it is a means of annulling it. Of all the theories on the subject, therefore, that one seems most
consistent
![]()
with
principle
which
holds that the
want
of
consummation,
arising
from
impotency, rather invalidates by non-performance a marriage that
was
otherwise
complete,
than makes it a nullity
from
the beginning by any
defect
in the marriage itself."
This passage adds nothing material to the passage first
cited
from
Fraser,
and the inferences
which
he
draws
from
the proposition that the plea "
cannot
be stated by any other than the aggrieved spouse"
can
equally be
drawn
from
the proposition that the plea
can
only be stated by one or other of the spouses. Nor
can
any solution of the question
whether
the impotent spouse
can
sue be
found
in the
distinction
between void and voidable marriage. It has now been
decided
(S. G. v.
W.
G. ) that a marriage,
where
one of the spouses is impotent, is voidable. But
whether
it is void or voidable, the question
whether
the impotent spouse has a right of action remains precisely the same. I therefore
forbear
from
examining Lord
Fraser's
observations upon the
distinction
between void and voidable marriages in relation to impotency. In Professor
Walton's
treatise on Husband and
Wife,
edited by the late Lord
Wark,
it is said (p. 3):—
"Physical incapacityfor
sexual intercourse is a ground
for
annulling marriage, at the instance of the potent spouse"
(and for
this the passages in Stair and Erskine on
which
Lord
Fraser
relied are again
cited).
"There is no authority in Scotland
for
the view that the impotent spouse
can
crave
declarator
on the ground of his or her own incapacity." The passage in Bell's Principles is not referred to, and appears to have been overlooked.
I turn now to the judicial dicta
which
bear on the question. Lord President
Clyde
in Von Lorang's
case
(at p. 616) said that "actions
founded
on impotency…are only
competent
between the spouses, and even then only at the instance of the spouse aggrieved—see the Scottish authorities
collected
in
Fraser
on Husband and
Wife,
vol. i, pp. 98-100." This observation
was
obiter, and an examination of the passages in
Fraser
shows that,
whereas
he
cites
ample authority
for
the proposition that third parties
cannot
sue
for
nullity of a marriage on the ground of the impotency of one of the spouses, he
cites
none
which
supports the proposition that the impotent spouse
cannot
sue and ends by saying "no
case
on the subject has been observed in the records of the Scottish
Courts."
Again it is to be observed that in Von Lorang's
case
Lord President
Clyde
was
concerned
with
the
distinction
between actions of nullity based on incapacity and actions of nullity based on non-
compliance
with
the requirements of the lex loci
contractus,
and to point that
distinction
it is sufficient to say
that the former
class
of action is not open to third parties
whereas
the latter is. In L. v. L. (at p. 481) Lord President
Clyde
repeats
what
he had said in Von Lorang's
case,
but adds nothing to it, and again his observations are obiter. It may be noted that
what
was
decided
in L. v. L.
was
that a potent pursuer
was
barred personali exceptione
from
founding
on the
defender's
impotency in respect that she entered into the marriage in knowledge of it, and that the
decision
is in
conflict
with
the
canon
law. The observations of Lord President
Dunedin
in A B v.
C
D
(at p. 606), repeated by him in G. v. G. (at p. 44),
which
are referred to by the Lord Ordinary in his report,
while
asserting as indisputable the title of the potent spouse,
cannot,
in my opinion, be
fairly
read as impliedly negativing the title of the impotent spouse, and I therefore pass them by. In S. G. v.
W.
G. the question now in issue
was
treated as open, but Lord Murray, after a
careful
review of the authorities, says (at p.735):—ldquo;In this state of the authorities I am not satisfied that it
can
be affirmed that in no
case
is it
competent
for
the spouse
who
is incapax to maintain a suit
for
nullity. The law on the matter is ultimately rested on public policy, although other
considerations
no
doubt
enter. But, so
far
as public policy is
concerned,
I
do
not see
why
it should
favour
restriction of the remedy in all
cases
to the potent spouse;
for
public policy
does
not
favour
the maintaining of the marriage bond
where
one of the essential
conditions
of the bond is not
capable
of
fulfilment.
The potent spouse may perhaps be
willing
to
waive
his or her right to annul the marriage, but this personal
waiver
should not override public policy. In my opinion it lies upon those
who
affirm that there is such a limitation of remedy to point to some authority or
decision
in support of this view." The Lord Ordinary's report
deals
with
this opinion of Lord Murray, and makes
what
I respectfully think a sound
criticism
that Lord Murray read more into a passage in Hume on
Crimes
(i, 456) than is
warranted
by the text. But apart
from
that
criticism
I agree
with
Lord Murray's review of the authorities.
The opinions of Lord President Clyde
and Lord Murray are entitled to the greatest respect. But it may
fairly
be said that the Lord President, in the two opinions
cited,
touched merely incidentally on the problem and accepted
for
his purposes the law stated by Lord
Fraser.
Lord Murray, on the other hand, addressed himself
directly
to the question after
consideration
of the authorities. He referred to an Irish
case
and to an English
case
as illustrating the law of England. I agree
with
his
comment
on these two
cases
(A. v. A. and G. v. G. ). Nevertheless these
cases
show that a suit at the instance of the impotent spouse is not incompetent, and the English
case
illustrates how inequitable the
contrary
view
would
be.
For
in that
case
the
impotence resulted from
the physical peculiarities of both spouses, so that each
was
impotent quoad the other, but each might have been potent if married to another party. Lord Murray also refers to the
canon
law,
which
allows the remedy to either spouse, and again I agree
with
his
comment
that the
canon
law,
while
not of binding authority, affords a guide and
will
receive
due
weight
in our law if it appears to be secundum bonum et oequum. The
case
of L. v. L., however, is a reminder of the limitations on the application of the
canon
law.
In principle any person who
has a title and interest in the subject matter of an action is a
competent
pursuer, and it is a general rule of our law that title rests upon interest. There are exceptions to this general rule, but I know of none
which
bears relevantly on the present question. Taking the general rule as a useful test, it
can
hardly be questioned that the impotent spouse has an equal interest
with
the potent spouse in a question
which
vitally affects his or status. The bond of a marriage
which
cannot
be
consummated,
it may be added,
can
be as irksome and humiliating to the impotent as to the other spouse. If, therefore, the impotent spouse is to be
denied
the remedy, it is necessary to enquire
what
is the supposed ground
for
this
denial.
Lord
Fraser
speaks of the potent spouse as the party aggrieved. But,
with
respect, both alike are aggrieved; and to treat the potent spouse as alone aggrieved is to imply that the impotent spouse is in some sense a
defaulter,
as though he or she had
failed
to implement a
contract
and
was
debarred
from
founding
on his or her
default.
The
condition
of impotency
which
is a ground of nullity is not voluntary; and the voluntary refusal to have intercourse, though it may be
dealt
with
as
desertion,
is not a ground
for
an action of nullity.
Where
the incapacity results
from
a physical or temperamental
condition,
for
which
the sufferer is not responsible, he
cannot
be
debarred
from
the remedy on the ground that he has
defaulted
in his obligations. There may, of
course,
be
circumstances
which
will
bar the potent spouse. If,
for
example, he or she entered into marriage knowing the
defect,
the other spouse
would
indeed be entitled to
complain,
and to plead the suppressio veri in bar of the action. But the report in the present
case
does
not mention any
facts
suggestive of a plea of personal bar, and it is not necessary to
consider
further
what
circumstances
would
properly give rise to it. The only other ground
for
refusing the remedy to the impotent spouse that has been put
forward
is that it is
contrary
to public policy that the remedy should be open to anyone but the potent spouse. But I
cannot
see any reason
for
thinking that the public interest is injured by allowing the impotent spouse an equal right to sue, and on this I agree entirely
with
the opinion of Lord Murray.
To sum up, I am of opinion that the impotent spouse has an obvious title and interest to sue; that his right to sue is supported by the
authority of Bell; and that we
can
accept in this matter the guidance of the
canon
law in respect that it accords
with
equity, and that no public right or interest is imperilled.
I therefore propose that we
should instruct the Lord Ordinary that the instance is good, and that the action should be allowed to proceed.
comprehensive
survey of the authorities such as they are, but
without
the elucidation of any principle
which
should be apt to
determine
the question, it is stated by the Lord Ordinary at the
conclusion
of his report that, but
for
the express reservation of the point by all the learned judges
who
took part in the
decision
of the recent
case
of S. G. v.
W.
G., he
would
have
dismissed
the action as "incompetent." It is therefore necessary in the
first
place to examine the authorities, in order to ascertain
whether
the question is still open to be
determined
on principle. In any
case
it is the relevancy of the averments rather than the
competency
of the action
which
would
appear to require
consideration.
In my opinion, and this was
the opinion of the
court
which
decided
the
case
of S.G. v.
W.
G., the authorities are still entirely inconclusive. I
do
not
find
that the opinion of Lord
Fraser
(see Husband and
Wife,
p. 98),
which
is adverse to the pursuer, is supported by the two authorities upon
which
he professes to
found
it. On the other hand the passage
from
Bell's Principles, and this, of
course,
is institutional authority, may be read more easily, as it
was
read by Lord Murray in S. G. v.
W.
G., as supporting a
directly
contrary
opinion.
Walton,
at p. 3 of his second edition, merely repeats
what
is said by Lord
Fraser,
under reference only to the same authorities. Lord President
Clyde
appears to rely only on Lord
Fraser
for
the support (
when
dealing
with
a question
which
was
not argued in the
cases
of Von Lorang and of G. v. G. ) of his merely incidental observations against such a title as is now asserted by the pursuer. I
do
not
find
that Lord
Dunedin's
recognition of the title of the spouse
who
is not impotent is pregnant to affirm that the impotent spouse has no title. The reference in my report in L. v. L. to "the privative title of the aggrieved spouse to state the plea"
was
not an expression of my own opinion, but
was
a summary of the treatment of the subject in a particular passage by Lord
Fraser.
The authorities upon which
the pursuer's title may be supported; although again not yet
conclusive,
in my opinion are not only more
determinate
but are such as should outweigh
what,
upon the above analysis, seems to be little more than a succession of assents to an unsupported ipse
dixit
of Lord
Fraser.
It is
difficult
to read the passage in section 1524 of Bell's Principles
without
recognising that, had this lucid
writer
regarded the title as one
which
could
not be
asserted by the impotent spouse, he would
have
described
the instance as open only to "the other spouse" in place of recognising it as open to "either spouse." The
decision
by the
Court
of Appeal in England in the
case
of G. v. G. is
directly
in point and is unambiguous. I remain of the opinion
which
I expressed in my report in L. v. L. that the
consistorial
law of Scotland should not
consult
English
decisions.
In
cases
in
which
the question to be
determined
is, however, a broad humanitarian question
which
is independent of proper
consistorial
law, I think that our
Courts
are entitled, and may
do
well,
to accept guidance
from
what
has been
decided
by learned judges in England. The
canon
law (as now
formulated
in the
Codex
Canonici
Juris of 1917) merely enacts in
Canon
1068 that the impotency of either spouse "by the very law of nature" annuls a marriage. By
Canon
1971, however, a title to take action is subsequently
conferred
(and so
conferred
only) upon (1) the spouses,
without
distinction
between them, and (2) the
diocesan
procurator as representing the ecclesiastical authorities. The title of the spouses
will
only be sustained "nisi ipsi
fuerint
impedimenti
causa";
but this has been interpreted by an eminent
canonist
as imposing a
disqualification
in respect of voluntary malicious action and not of innocent misfortune. See Augustine's
Commentary.
(St Louis and London, 1919) vol. 5, p. 418. The title of the pursuer in such a
case
as this
would
thus be sustained by the
canon
law.
Even if I had regarded the decision
as turning only on a balance of the authorities, I should accordingly have been prepared to sustain the pursuer's title to raise the action. In the absence of
decided
cases
and in view of the silence of the other institutional
writers,
the authority of Bell is indisputably of the greatest
weight.
Standing alone, the single passage
cited
from
the Principles
would,
I
do
not question, prevail against the opinion of Lord
Fraser;
and it may be noted that my
construction
of the passage has the assent (
while
the passage as so
construed
has the approval) of the learned editor the ninth edition of the Principles. But Bell's authority
does
not stand alone. It is supported not only by an express
decision
of the
Court
of Appeal, but also by the principles enunciated in the
canon
law and by the practice in operation under that system. As regards the extent and limits of the recognition of the
canon
law by the law of Scotland, I refer to the authorities (including the authority of Lord
Fraser)
which
are
cited
in my report to the
Court
in L. v. L., together
with
the opinion of Lord Murray in the subsequent
case
of S. G. v.
W.
G., and the opinion of Lord Skerrington (
which
is adopted by Lord Johnston) in Stein v. Stein, at p. 911. The title of the pursuer is thus, as I
find,
supported by authority in Scotland, in England and even Urbe et Orbi; and, if only as so supported, ought to be sustained.
Even in the absence of authority, however, and determining
the
question only upon principle, I should have arrived at a similar decision.
Whereas
marriage is
constituted
in Scotland by a
contract
following
upon an exchange of
consent,
the
consent
so exchanges is
for
a joint entry upon a status
which
envisages a physical relation. Before such a
consent
can
be given, it is manifest that the
consenting
party must have all the
faculties
required
for
giving it. It is recognised, no
doubt,
in our law on less than by the
canon
law of
which
it is a maxim, that
consensus
non
concubitus
facit
matrimonium. None the less, the required
consent
is not passed by a bare exchange of
words
of
consent;
but,
from
the very necessity of the legal act
which
is
contemplated,
requires not only the mental
capacity
which
all legal acts require, but the physical
faculty
which,
whether
exercised or not exercised at the
discretion
of the spouses, is required by law to qualify legal
consent
for
marriage. See
Fraser,
Husband and
Wife,
p. 83. If there be, in
fact
though latent, a
defect
of physical
faculty,
the ostensible marriage
will,
of
course,
endure
for
all practical purposes until after
discovery
the marriage is avoided; but this is in like manner exactly true in
cases
of
defect
of mental
capacity.
Such a consequence
(
while
it is sufficient to protect "in solatium vitae"
what
Erskine styles (Inst. I, vi, 7) perpetual
companions
"in the
way
of" marriage) thus affords no implication that the marriage
was
valid till annulled. Nor is any such interim validity affirmed (unless, indeed, this be suggested by the Lord Justice-
Clerk
in S. G. v.
W.
G., at p. 732) by the recent application to such marriages of the
description
which
classifies
them as "voidable not void." Unless this
description
be taken as affirming validity ad interim (see per Lord Kinnear in Smyth v. Muir, at p. 89), the terminology, unless by some
cryptic
misapplication of
well
known
words,
does
not readily suggest a possible interpretation. Yet interim validity (unless as above noted) is nowhere suggested; as it is agreed on all hands that such a marriage, once it has been avoided, exactly as in the
case
of other nullities upon
discovery,
is void ab initio. See Bankt. I, v, 27, Ersk. I, vi, 7, and Stair, I, iv, 6. See also
Fraser,
Husband and
Wife,
pp. 49 and 50. An explanation of the
distinction
does
not immediately suggest itself. Such an explanation,
with
a recognition of
what
I
can
only style a
cryptic
misuse of the
words,
is however given by Lord
Fraser
in the passage last
cited
from
p. 50. In
defiance
of its terms it there appears that the
distinction
must be understood as merely affirming that,
whereas
such a marriage is ab initio a nullity exactly as are other nullities, an action at law to
declare
this particular exception is subject to special limitations of the right to raise the action and, in
cases
where
there is separation of judicatories,
can
only be brought before a
consistorial
court.
Although the
distinction
is re-affirmed in S. G. v.
W.
G., I
do
not
find
that
further
light is thrown upon it; and
can
only suppose that Lord
Fraser's
suggestion must be accepted. As so interpreted the
description
of such a marriage as
"voidable not void" operates only for
procedural purposes, and leaves the marriage in point of substance (as in other
cases
of
defect
of
consent)
ab initio null.
But whether
or not such a marriage be regarded as valid until it be avoided, I
fail
to see that either such
conclusion
throws light upon the present question. Be the marriage valid ad interim or void ab initio, the spouse
who
is not impotent has an indisputable title to
conclude
for
decree
declaring
it void. I merely
fail
to see how any interim validity of such a marriage should
disentitle
the spouse
who
is impotent
from
asserting a similar right.
So far
as the proposition that such a marriage is "voidable not void" has been utilised as a reason
for
limiting the right of action in such
cases,
and
for
conferring
this right upon the spouses only to the exclusion of all third parties, the proposition, be it true or be it
false,
has only served a salutary purpose. But
for
this purpose,
while
it may have been so applied, I
cannot
see that any such proposition
was
required. The purpose
can
be attained, as it is attained in the
canon
law, by a more
direct
and less bewildering road: by the recognition of the nullity of the marriage on the one hand,
while
on the other hand imposing a limitation upon the title to take action at law. I
find
no inconsistency between the recognition by law of an initial nullity of marriage, and an imposition by law of the proper reticence
which
should be insisted on in order to screen
from
uninformed general enquiry
what
can
be known only to the spouses to be other than the marriage bed.
Whether
the pursuer's marriage be regarded upon his averments as voidable or void, using these
words
in the sense in
which
they have been applied, his
challenge
is of a marriage
which,
unless
for
purposes of procedure, is in law ab initio null. As one of the spouses he makes no trespass upon sanctioned reticence
when
he makes that
challenge.
As the impotent spouse he may have suffered even more than his more
fortunate
partner
from
the endurance of that merely ostensible marriage. He has suffered in like manner as a victim and not as a
delinquent.
As such a victim he had, in my opinion,
whether
the
decision
be guided by principle or by authority, an unanswerable right to
claim
the relief
which
law impartially should afford to either victim of a marriage
which
ab initio is null.
As regards the procedure to be followed
in
cases
in
which
the Lord Ordinary makes a report to the
Court,
it
would
appear that there has been some irregularity in practice. Although the question
was
overlooked, and the Lord Ordinary
was
invited to sit
with
the
Court
in this
case
at the
debate,
I have no
difficulty
as to the proper practice. The error
was
afterwards
corrected,
and the Lord Ordinary
was
not invited to be present at the advising. It seems inexplicable that the Lord Ordinary should on occasion have been asked to guide the tribunal to
which
he himself had applied
for
guidance. If the Lord Ordinary be prepared himself to
decide
the question, he, of
course,
can
always
do
so.
CARMONT
,
who
was
absent at the hearing,
delivered
no opinion.
who
was
absent at the advising, and
whose
opinion
was
read by the Lord President).—I have had the privilege of
considering
the opinion
which
has just been
delivered
by your Lordship in the
chair,
and I
desire
to express my
complete
agreement
with
it.
The permission for
BAILII to publish the text of this judgment
was
granted by Scottish
Council
of Law Reporting and
the electronic version of the text was provided by Justis Publishing Ltd.
Their assistance is gratefully acknowledged.