Report No. 65
IV. English Law
3.21. General rule as to divorce.-
So much as regards Indian law. The general rule in England is that in proceedings for divorce properly brought in England, English law, as in force at the time of the proceedings, exclusively governs the grounds of divorce. Other factors, such as-
(a) the law under which the parties were married,
(b) the national law of the parties, or
(c) the law of the place where the matrimonial offence was committed are completely irrelevant, according to English practice. There may be a statutory modification of this position, but, apart from statute, this is the general rule.
3.22. A case of divorce.-
Thus, in the case of Zanelli v. Zanelli, (1948) 92 Solicitor's Journal 646 (Court of Appeal). Cheshire Private International Law, (1970), p. 354 an Italian national married, in 1948, an English woman in England, where he was then domiciled. He was later deported from England, and thereupon reverted to the Italian domicile. The English woman was granted a divorce in England by an application of the English law despite the rule of Italian law (the law of her domicile at that time) which disallowed divorce.
3.23. Position as to nullity.-
The position regarding proceedings for nullity of marriage may be different. An action or proceeding for the annulment of a marriage differs divorce proceeding, in that the latter is instituted to sever a marriage relation admitted to exist, whereas an annulment proceeding is for the purpose of declaring judicially that, because of some disability or defect which existed at the time of the marriage ceremony, no valid marriage ever took place between the parties, or- that no valid marriage relation ever existed between the parties. An annulment is also to be distinguished from a divorce in that, as a general rule, an annulment proceeding is based on factors justifying the avoidance of the marriage existing, at the time of the marriage, whereas a divorce is ordinarily for the causes arising after the marriage-although some statutes, in defining grounds for annulment or divorce, do not adhere to these distinctions.1
1. American Jurisprudence, 2nd Edn., Vol. 24, pp. 177, 178.
We are not concerned with the law applicable to nullity proceedings. But, as regards divorce, the general rule is as stated above. The rationale1 of the English rule seems to be that the question whether the court will dissolve a marriage is one that must be decided by "English conceptions of morality, religion and public policy"2 and is "one that is governed exclusively by rules and conditions imposed by the English legislature".
It is immaterial that the facts constituting the ground took place outside England.3
Wolff4 states the position clearly, in this regard-
"The English court, when entertaining divorce or separation proceedings, applies nothing but English law, because the question of the conditions under which the nuptial the may be loosened or destroyed touches fundamental English conceptions of morality, religion, and public policy. There can, therefore, be no doubt that where in exceptional cases, the English court is not the court of the domicile, it is nevertheless English law that applies and not the law of the foreign domicile."
1. See also para. 3.42, infra.
2. Wolff Private International IAw, (1950), p. 374, quoted also by Cheshire in his 1975 Edn., pp. 353, 369.
3. Czepok v. Czepok, (1962) 3 All ER 990 (992) (Desertion outside England).
4. Wolff Private International Law, (1950), pp. 373-374.
3.25. Foreign divorce recognised even if ground not valid in England.-
Conversely, if a foreign divorce is jurisdictionally valid, it will be recognised in England, notwithstanding that the foreign divorce was obtained on a ground not recognised by English law.1
Successive editions of Cheshire have consistently taken the view that in a suit for divorce brought in England, the substantive law of the forum must be applied without exception.2 In the overwhelming majority of cases, jurisdiction being based on domicile, the courts have never-been asked to decide specifically whether they apply English law as the lex domicilli or as the lex fori. Nevertheless, such, case law as is available, establishes this position beyond doubt. English jurisdiction and divorce law will be available even if the matrimonial misconduct on which the petition is based took place in a foreign country where the parties were then domiciled. Consequently, it is regarded as equally immaterial that the misconduct constituted no ground for divorce at the time of its commission if, in fact, it is a ground for divorce in the subsequently acquired English domicile at the time of the suit.
1. (a) Indyka v. Indyka, (1969) 1 AC 33 (66, 73-74); approving Bater v. Bater, 1966 Probate 209;
(b) Tijanic v. Tijanic, 1963 Probate 181 (184);
(c) Brown v. Brown, 1968 Probate 518: (1968) 2 All ER 11.
2. (a) Cheshire Private International Law, (6th Edn., 1961), p. 393 cited in (1963) Brit Y B Law 127 (128);
(b) Cheshire Private International Law, (1970), pp. 353 to 368 and (1975), pp. 369-87.
3.26. Wilson's case.-
In Wilson v. Wilson, (1872) 2 P&D 435: 27 LT 351: 41 1.). P&M 74: 20 WR 891 the question was whether an English Court had jurisdiction to grant Wilson's suit filed in 1871 for the dissolution of his marriage on the ground of his wife's adultery. Wilson was a Scotsman married in Scotland to a Scottish wife, and was a partner in a business carried on at Glassgow. After their marriage, Wilson and his wife resided near Glassgow. Wilson had also a lease of some land near Loch Lomond, where he had built a shooting lodge. On discovering his wife's adultery in 1866, Wilson broke up his establishment and went to London, where he lived thereafter with his mother.
He continued to draw an income from his business in Glassgow and when the subscription of his club fell due, Wilson begged his partner to pay the amount and wrote to his partner that he did not wish to dissociate himself entirely from Glassgow. He renewed the lease of the land on which he had his shooting ledge and spoke of it as the land of his father. The only property which Wilson possessed, it was shown, was in Scotland, and in London he was mainly supported by his mother.
A Court in Scotland had held that Wilson had never acquired an English domicile. Wilson himself asserted, when giving evidence, that when he went to live in London in 1866, he did so with the intention of making England his home for the future. Lord Penzance stated that if Wilson had been dead and nothing were known of his intention, except what could be gathered from the more circumstances attending his residence in England, the evidence would not have been sufficient to enable the Court to arrive at the conclusion that he had adopted an English domicile. But he said:
"Still, when the man is here, and when he swears that his intention was to adopt an English domicile, why should he not be believed in the absence of any circumstances in the case tending to show that what he says is not true or likely to be true? In this case, then, the question is not so much whether the circumstances of his English residence tend to prove English domicile, as whether, notwithstanding the man's oath to his intention to create an English domicile, there are sufficient circumstances on the other side to warrant the Court in throwing over his oath and disbelieving him. I am not aware there are any such circumstances."
"Well, I do believe him, and if I believe he came to England with the intention of permanently giving up this connection with Scotland, and fixing upon England as his future home, is there any question but that a new domicile was thereby constituted? I apprehend not."
This question was, thus, considered at length. But the jurisdiction having been established, the substantive law applied was the English law.
3.27. It was observed by the High Court1 in Mezger with reference to a foreign decree of divorce as follows:-
"It is quite true that this decree was pronounced on grounds which are not recognised in this country. As I have said, the record is full and clear and it appears that it was pronounced on the ground that by insulting behaviour and incompatibility of temper, and other matters of that sort, the wife had failed to fulfil her marriage obligations-quite plainly a ground that is act recognised in this country-which the court below was assured has not been challenged here. That was the foundation for a divorce in the country when the divorce was pronounced and to the courts of which country these parties were amenable.
In those circumstances, in my opinion, the justices have got nothing whatever to do with the question whether the grounds for divorce are recognised in this country or whether they approve of them or do nor approve of them. The matter was put with characteristic terseness and accuracy by Hill. J., in the case of Pastre v. Pastre, 1930 Probate 80. The case was somewhat similar though not exactly the same as this case. The question was, this court having pronounced a decree of judicial separation with the consequential allowances, whether that should be allowed to survive a decree of divorce pronounced by a French court. HILL, J., said this at p. 82:
"The decree of the French Court was made upon a ground which would not be a good ground here-namely, the existence for three years of a decree of judicial separation. But it is the decree of a court of competent jurisdiction in a proceeding in which the wife was an active party.
I stress those words. "It follows that the petitioner and the respondent are no longer husband and wife."
"There the matter begins and ends; that is all with which any court in this country is concerned, and it is no business of the justices, in my opinion, to inquire whether there is lacking the element of adultery, which is a necessary ingredient of divorce in this country. For that reason their decision, in my opinion, is invalid."
1. Mezger v. Mezger, (1936) 3 All ER 130 (134) (Refusal by Magistrate to revoke order for maintenance).
3.28. In Tikzanako v. Tikzanaki, 1957 Probate 301 (306), decided in 1957. Hodson, L.J. said:-
"If it be said that since the parties are not British subjects, the common-law of England does not apply to him, my answer is that such is the law prima facie to be administered in the courts of this country."
3.29. In Tijanic v. Tijanic, (1967) 3 All ER 976 a decree granted to both husband and wife in Yugoslavia was recognised. For the recognition of the decree by English courts, it was immaterial that the ground of divorce was not one on which divorce was obtainable in England. This position was specifically laid down. The parties in that case were married in Yugoslavia in 1934, both being Yugoslav nationals, and lived together in Yugoslavia until the outbreak of war in 1939. The husband fought in the Yugoslav army, was taken a prisoner of war in Italy, and, after three years in custody, joined the British Army, serving for some two years. In 1949, he came to England and acquired a domicile of choice in that country.
In 1954, he applied for and obtained British nationality. On a number of occasions in subsequent years, particularly in 1956, he wrote to his wife inviting her to join him in England. This the wife was unwilling to do. In 1960, she sent him a document ostensibly giving him permission to remarry. Thereafter the husband initiated proceedings in Yugoslavia for the dissolution of his marriage under a provision of Yugoslav law whereby a marriage could be dissolved if the parties had been living apart for a long period and they both consented to the divorce. In October, 1961, a competent court in Yugoslavia pronounced a decree of divorce to both parties. Although the decree recited that it was pronounced in the presence of the litigants, the only persons referred to explicitly as being present were the husband's proxy and his solicitor.
On a petition by the husband for, inter alia a declaration that the Yugoslav decree of divorce validly dissolved the marriage, it was held that the reality of the proceedings in Yugoslavia were that the wife joined with the husband in seeking relief and, in so far as she joined in the application and the decree was granted to her, it was granted to a woman who had been for the whole of her life within the jurisdiction of the court concerned and as the British court would assume jurisdiction in such circumstances, recognition would be accorded to the Yugoslav court's decree; it being immaterial that the ground of divorce was not one on which divorce would be granted in England.
3.30. In Indyka v. Indyka, (1967) 2 All ER 689 (692) (HL) itself, the foreign divorce granted in Czechoslovakia (which was ultimately recognised), had been granted on the ground of disruption of marital relations, a fact which was, as such, not a ground of divorce in England in 1949 when the District Court of Ostrava (Czechoslovakia), had granted the divorce. In fact, in that very case,1 Lord Morris observed:
"In this field, there have been some statutory provisions and many judicial decisions. It is too late, in my view, to urge that recognition should be limited to cases where by statute provision is made for it. So also it is, fit my opinion, too late to urge that recognition of a foreign decree should in any event and, apart from other considerations, be limited to cases where such decrees have been based on grounds which are grounds for a decree of dissolution in this country. Recognition should, however, always be subject to the proviso that the foreign decree is not vitiated by fraud nor contrary to natural justice (compare Lepre v. Lepre, (1969) 2 All ER 49: 1965 Probate 52.). In his speech in Salvesen's case.2 Lord Haldane said:3
"Our courts, never inquire whether a competent foreign court has exercised its jurisdiction improperly, provided that no substantial injustice according to our notions has been committed.
"It has followed from the acceptance of domicile as the basis for assuming jurisdiction in England that, if a husband and wife are domiciled in another country and if there is a decree of divorce in that country, it will here be recognised. There has been no insistence that the grounds for a decree in the other country should conform or correspond to those laid down in England." (See Bater v. Bater, 1906 Probate 209.)
1. Indyka v. Indyka, (1967) 2 All ER 689 (700) (HL) (Lord Morris).
2. Salvesen's case, 1927 All ER Rep 78: 1927 AC 641.
3. Salvesen's case, 1927 All ER Rep 78 (85): 1927 AC 641 (651).
3.31. Mather v. Mahoney, (1968) 1 WLR 1773 is an interesting decision-interesting for the variety of territorial contacts exhibited by that facts. It shows that English courts, when considering the question of recognition, do not pause to inquire into the question how far the foreign decree took into account the laws of other countries having a territorial contact. In that case, the husband had been born in Scotland. He acquired a domicile of choice in England. This he retained at all relevant times. In 1961, be married in Rome a woman who had lived most of her life in Pennsylvania. The parties thereafter lived together (where, it does not clearly emerge), for rather more than three years. In 1964, the wife left her husband and returned to the United States.
The following year-i.e., in 1965-the wife obtained a decree of dissolution of the marriage in Nevada, on the ground of mental cruelty. She had gone to the State of Nevada for the express purpose of obtaining this decree. In subsequent English proceedings, the husband petitioned for a declaration that the Nevada decree had validly dissolved the marriage, or alternatively, for a decree nisi of divorce on the ground of the wife's desertion Payne J. held that the Nevada decree must be recognised as effective in England: the question of his pronouncing a decree nisi did not, therefore, arise. It may be noted that Payne J. did not consider it relevant to discuss the question whether the foreign court had taken into account the English concept of "cruelty". In fact, no reliance was placed on the fact that cruelty was also a ground for divorce in England. That was merely a coincidence.
3.32. Reasons for foreign judgment not relevant.-
According to the English rule, thus, the reasons upon which a foreign court bases its decree are immaterial in regard to recognition of its decree. The grounds of the foreign decree need not be in accord with the grounds for divorce established in English matrimonial law1-provided, of course, the decree does not violate good morals.
1. (a) Harvey v. Parnie, (1880) 5 PD 153;
(b) Pemberton v. Hughes, (1899) 1 Ch 781;
(c) Bater v. Bater, 1960 Probate 209;
(d) Mezger v. Mezger, 1937 Probate 19: (1963) 3 All ER 130.
3.33. English rule-Reason of.-
Thus, English courts1 when entertaining divorce or separation proceedings, apply nothing but English law, because the question of the conditions under which the nuptial the may be loosened or destroyed touches2 fundamental English conceptions of morality, religion and public policy. There can, therefore be no doubt that where, in exceptional cases, the English court is not the court of the domicile, it is, nevertheless, English law that it applies, and not the law of the foreign domicile.
1. Wolff Private International Law, (1950), pp. 373-374.
2. Cf. para. 3.24, supra.
In Robinson v. Bland, (1760) 97 English Reports 717 (721) (King's Bench), Wilmot J. observed:-
"But if a man originally appeals to the law in England for redress, he must take his redress according to that law to which he appealed for such redress."
Some such reasoning seems to constitute the basis of the principle on which the English Courts act namely, that it is the English law which is ordinarily to be applied, if relief is sought from an English court in regard to dissolution of a marriage.