Report No. 65
7.9. Result summary.-
The result of these judicial decisions was that domicile of both parties was the principal test for the-(a) exercise of jurisdiction in divorce-by domestic English courts, and (b) recognition of a divorce-granted by foreign courts. To the general rule of domicile, addition1 were made in course of time. The first such additions took place in 1953, when the principle was laid down that if a wife obtains a divorce in a foreign country where she is not domiciled, and the facts are such that the English courts would exercise jurisdiction to entertain her petition for divorce (on the ground on which the foreign court exercised jurisdiction), then the divorce could be recognised in England.
This rule owes its origin to the fact that in certain circumstances, an English court could itself exercise jurisdiction to hear the petition of a wife for divorce by virtue of a specific statutory provision even though the parties were not domiciled in England. The Court of Appeal made another break into traditional principles, in the case of Travers v. Holley, 1953 Probate 246 (251, 257). The question in that case was whether the English court could recognise as valid, a decree of divorce granted by the Supreme Court of New South Wales under legislation analogous to section 18 of the English Matrimonial Causes Act, 1950 (jurisdiction to grant divorce to the wife in certain cases).
The Court of Appeal allowed recognition of a foreign decree based on a residential jurisdiction common to the English and the foreign law. "On principle it seems to me plain", said Somervell L.J., "that our courts in this matter should recognise a jurisdiction which they themselves claim." Hodson L.J. added: "The principle laid down and followed since the Le Mesurier case must be interpreted in the light of the legislation which has extended the power of the courts of this country in the case of persons not domiciled here."
1. Travers v. Holley, 1953 Probate 246.
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