Report No. 65
VII. English Case of Torok
19.24. English case of Torok v. Torok.-
The above discussion shows the need for a provision that would take care of matters normally dealt with by ancillary orders in matrimonial causes. The need for some specific provision as to ancillary orders in the proposed law is illustrated by the English case of Torok v. Torok, (1973) 1 WLR 1066. In that case, the parties left Hungary at the time of the Hungarian rising in 1956, and came to the United Kingdom. They married, became naturalised British subjects, and lived in England together with their children until the husband left the wife in 1967 and went to live in Canada.
The wife and the children continued to live in England, in a house of which the parties were the joint owners. In 1972, the husband, who, by the laws of Hungary, was still a national of that country, brought proceedings in a Hungarian court for divorce based on the ground that the parties had lived apart for 5 years. The wife entered an appearance. The Hungarian court pronounced a "partial decree" of divorce, and the wife gave notice of and lodged an appeal in Hungary against the pronouncement of the decree.
19.25. The wife also petitioned in England, for divorce. Since the English courts would recognise the Hungarian decree if it was made final, under sections 3(1) and 5(1) of the Recognition of Divorces and Legal Separations Act, 19711, and the court would then have no jurisdiction, under the Matrimonial Proceedings and Property Act, 1970, to make orders concerning property and financial provision for the wife, the wife petitioned for a divorce under section 2(1)(e) of the Divorce Reform Act, 1969 (which was the law then in force). She also prayed for exercise of the discretion of the Court to expedite the making of the decree absolute.
On the question whether the court should grant a decree and exercise its discretion to expedite the making of the decree absolute, it was held, granting a decree, that the English court had jurisdiction on the wife's petition to grant a decree of divorce and there was no ground on which it could refuse to do so that, since the court had jurisdiction only under the Matrimonial Proceedings and Property Act, 1970 if a decree had been granted by an English court, the wife would be disabled from using or taking advantage of that Act if the Hungarian decree were made final before the English decree was made absolute and, accordingly, since she would thereby suffer a severe injustice and the husband no injustice if the decree absolute was expedited, the decree would be made absolute forthwith.
1. Recognition of Divorces and Legal Separations Act, 1971, section 3(1).
19.26. Observations made in the English case.-
In this way, substantial justice was done. The Court, however, observed1 that the situation presented in the case-relating to two people, who had been living in England, with children who had been brought up in England, and with a matrimonial home in England-was unforeseen when the Recognition of Divorces and Legal Separation Act, 1971 was drafted; because the effect of the Act is to oust, in effect, the jurisdiction of the English court to deal with a family living in England and with property in England (if the foreign divorce is one which has to be recognised under the Act).
Fortunately, in this case, the foreign divorce had not yet become final. But, if it had become final, the situation would have been hard. The need for a specific provision is illustrated by the facts of this case. Such a situation could arise in India, or, for that matter, in any country, if a couple divorced elsewhere comes back to that country or if even one of the spouses, so divorced, comes back.
1. Torok v. Torok, (1973) 1 WLR 1066 (p. 1069, portion H, p. 1070, portions A-B).