Divorce in UK Law

If English Courts will only recognise foreign decrees of divorce where the parties are domiciled in the territory of the foreign Court at the time of the institution of proceedings because that is theJurisdiction which they themselves claim, what is the situation when tha Courts of this country arrogate to themselves jurisdiction in the ease of persons not domiciled here at the material date?

Caution, however, seems to me necessary when considering the White v White cross-check in the context of a case under the 1975 Act. Divorce involves two living former spouses, to each of whom the provisions of section 25(2) of the Matrimonial Causes Act 1973 apply. In such a case, depending on the value of the estate, the concept of equality may bear little relation to such provision.

Important too is the general proposition that, formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement.

The first condition is that new events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed. The second condition is that the new events should have occurred within a relatively short time of the order having been made.

However this may be, it is sufficient for the decision of the present case to hold, as I do, that the power of the Court to make provision for a wife on the dissolution of her marriage is a necessary incident of the power to decree such a dissolution, conferred not merely in the interests of the wife, but of the public, and that the wife cannot by her own covenant preclude herself from invoking the jurisdiction of the Court or preclude the Court from the exercise of that jurisdiction.

The Board would also agree that the circumstances in which the agreement was made may be relevant in an ancillary relief claim. We must assume that each party to a properly negotiated agreement is a grown up and able to look after him- or herself. At the same time we must be alive to the risk of unfair exploitation of superior strength.

I am bound to say that I have some sympathy with the Fund, because, like the learned deputy judge, I have more than a sneaking suspicion that, if the testator had addressed his mind to the contingency which in the event happened, he would have wished the estate to go to the Fund.