A Progression of Judges: A History of the Supreme Court of British Columbia

By David R. Verchere | Go to book overview

SEVEN
Divorce, Circuits, and Other Matters

The question of the court's jurisdiction in divorce arose on 11 January 1877, 1 when a petition filed by a Victoria woman called Mrs. Sharpe came on for hearing. In it, she asserted that because of her spouse's impotency their union had not been consummated and that the ceremony of marriage which had been celebrated between them was accordingly void and of no force and effect. In consequence, she asked for a judicial declaration that would abrogate ab initio her status as a married woman.

Nothing like this had ever occurred before in British Columbia, and all three Supreme Court judges were of the opinion that before the petition could be heard, the question of the court's jurisdiction in divorce, and hence its power to grant the relief sought, must first be determined. The petitioner was represented by Drake, now a Queen's Counsel and one of the most distinguished lawyers of his day, and although no one appeared for the respondent husband, Drake was called upon to argue the question of jurisdiction before the three judges sitting as a full court. Unfortunately his argument was not reported, but his helpful submission that a marriage contract was in reality nothing more than a civil contract to which the common law applied can be extrapolated from the judges' decision.

The relief requested by the petitioner was a decree annulling her marriage, because an essential ingredient was lacking--consummation. She did not seek a decree dissolving the marriage because of the commission of some matrimonial offence by her husband. No jurisdictional problem

-57-

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