Gadd v Gadd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DUNN,LORD JUSTICE BROWNE-WILKINSON |
| Judgment Date | 20 July 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0720-2 |
| Docket Number | 84/0433 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 July 1984 |
[1984] EWCA Civ J0720-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTCE
FAMILY DIVISION
(HIS HONOUR JUDGE WATTS SITTING AS A JUDGE OF THE HIGH COURT)
Royal Courts of Justice
Lord Justice Dunn
and
Lord Justice Browne-Wilkinson
84/0433
No. 11191 of 1983
MR. PAUL FOCKE (instructed by Messrs. Lee, Bolton & Lee, Solicitors, London SW1P 3JT) appeared on behalf of the Petitioner (Appellant)
MR. JONATHAN BARNES (instructed by Messrs. Goodman Derrick & Co, Solicitors, London WC1V 6HQ) appeared on behalf of the Respondent (Respondent)
This is an appeal from an order of His Honour Judge Watts, sitting as a Judge of the Family Division on 25th May of this year, whereby he stayed a petition which had been filed by the wife on 18th November 1983 on the ground that the balance of fairness required that the husband should be allowed to proceed with his petition, which he had filed in Monaco on 21st December 1983.
The facts of the matter are that the parties were married in the Bahamas in 1967; there are no children and both the husband and the wife are British nationals. They lived in the Bahamas from the date of the marriage until 1973, when they moved to France The husband is described as an international accountant. They lived in France from 1973 until 1979 and then, for probably perfectly legitimate tax reasons, they took up residence in Monaco.
The wife has been suffering from cancer for some years and from time to time has had treatment for that disease in this country but, as I have said, their matrimonial residence has always been outside this country.
In October 1983 the marriage broke down and the wife returned to this country to live with her mother. On 19th October 1983 English solicitors who had an office in Monte Carlo, wrote to the wife on behalf of the husband recording that she had left the matrimonial home; that her husband considered her act as one of desertion and that he reserved his rights to take such steps as he considered appropriate, and they asked for advice of the name of the wife's solicitor. Thereafter, the wife filed her petition under s.l(2)(b) of the Matrimonial Causes Act, basing jurisdiction on her domicile here. The husband, in his Answer, put the question of domicile in issue, but Mr. Focke in this court very properly conceded that he could not suggest that, by returning to this country, as she says in an affidavit, with the intention of residing here permanently, she had not thereby reverted to her domicile of origin. So the issue of domicile, so far as the wife is concerned, goes out of the case.
The husband, in his proceedings in Monaco, effectively relies on desertion; those proceedings have been adjourned until a date in October.
There was no evidence in Monegasque law led by the wife in the proceedings in the court below. In an affidavit she said that she had been advised that she would have difficulty in proving her case in Monaco because neither she nor her husband were competent witnesses; and she also pointed out that there was no discovery or cross-examination in Monaco, which would be a disadvantage to her. These procedural matters were dealt with in an affidavit by Mr. Picarda, who is a member of the English Bar qualified in French and also Monegasque law, and the judge accepted Mr. Picarda's affidavit as being the only expert evidence. On the basis of that affidavit the judge held that there was nothing to support the wife's suggestion that she would be less able to make out her case in Monaco than in England, and accordingly that the balance of fairness and convenience fell in favour of all issues being determined in Monaco, since the parties had lived in France or in Monaco for the past eleven years. There was no evidence before the judge as to the difference in remedies, especially in relation to financial provision, between the English and Monegasque courts. The judge offered the wife's solicitor an adjournment to enable him to file expert evidence, but that offer was declined, so the judge was obliged to proceed with the matter on the basis of the evidence which was before him.
In those circumstances, at the outset of the appeal counsel for the wife applied in this court for leave to file evidence of Monegasque law; after hearing argument we granted that application under 0. 59 r.10(2) of the Rules of the Supreme Court, and we also granted leave to the husband to file further evidence by Mr. Picarda in answer to the wife's evidence.
The affidavit of Mrs. Sparrow, the wife's expert, raises a question as to the jurisdiction of the Monegasque court which is dealt with by Mr. Picarda in his affidavit in answer. No issue as to jurisdiction was raised by the wife's lawyers in Monaco, and I am content to assume that the courts of Monaco would have jurisdiction to hear, and adjudicate upon, the husband's petition, just as the English courts have jurisdiction based on domicile to adjudicate on the wife's petition.
Mrs. Sparrow's affidavit goes on to contrast the financial remedies available to a wife in Monaco as compared with the remedies available to her in England. The position on the two affidavits is not seriously in dispute; since the parties were married in the Bahamas the regime of community property does not apply in Monaco and the matrimonial regime accordingly is that of separate estates.
Accordingly the position can be summarised as follows: If the husband obtains a decree against the wife in Monaco on the ground of desertion, then the wife will not receive any maintenance at all and will not be entitled to any financial provision. Moreover, she will be liable to return a house in Monaco which was given to her by the husband during the marriage. Mr. Focke told us that it would not be the intention of the husband to claim the return of that house; the wife says that it is of little value in any event, but he has the right to claim its return. It appears—although this is not dealt with by Mr. Picarda—that if the court in Monaco were to grant cross-decrees, then, since both parties are deemed to have been guilty of a matrimonial offence on which the divorce law of Monaco still depends, then once again the wife would not be entitled to any financial provision. If the wife successfully defends the divorce proceedings in Monaco and obtains a decree against the husband then, subject to one matter to which I shall refer in a moment, she will not be entitled to any capital provision or any property adjustment, but she would be entitled to maintenance not exceeding one third of the husband's income.
According to Mr. Picarda's affidavit there is provision, not under the matrimonial law of Monaco but under the general law contained in Article 1229 of the Civil Code, whereby any act of any person which causes to any other person a loss, obligates the person through whose fault the loss arose to make such loss good; and Mr. Picarda suggests that under that Article the wife could apply for compensation if the husband had been found to have caused her any loss by his conduct. But, as I have said, that is not a provision of the matrimonial law; it is simply a general provision of the Civil Code and Mr. Picarda in his affidavit is very cautious as to the chances of the wife's obtaining any compensation under that particular Article.
That summary of the law of Monaco, so far as it is relevant, makes it plain that the wife would have an important advantage from the point of view of financial relief if the English proceedings were allowed to continue, because she would have the full range of remedies afforded to her under ss.23 and 24 of the Matrimonial Causes Act of 1973, including lump sum payment, adjustment of property and periodical payments.
The question in this appeal is how far that advantage is decisive in considering an application for a stay, or indeed whether it is relevant at all and, if it is, what weight should be attached to it. In matrimonial proceedings, unlike other proceedings, the power of the court to stay...
To continue reading
Request your trial
-
De Dampierre v de Dampierre
...280–1 of the Code. But as to that, if I apply the observations of Lord Justice Dunn, in giving the leading judgment of this court in Gadd v. Gadd (1984) 1 W.L.R. 1435, the position will be that the wife would be at a juridical disadvantage in having to apply for financial relief under the ......