Garthwaite v Garthwaite
| Jurisdiction | England & Wales |
| Judgment Date | 24 March 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0324-6 |
| Court | Court of Appeal |
| Date | 24 March 1964 |
[1964] EWCA Civ J0324-6
Lord Justice Willmer,
Lord Justice Danckwerts and
Lord Justice Diplock
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Ormrod
LORD GARDINER, Q. C., and Mr BRUCE GAUPBELL (instructed by Messrs. Summer & C. Q.). appeared on behalf of the Appellant (Respondent).
Sir JOHN G. POSTER, Q. C., and Mr BASIL GARLAND (instructed by Messrs Radcliffes & Co.) appeared on behalf of the Respondent (Petitioner).
This is an appeal from a judgment given by LIT Justice Ormrod on the 13th January 1964 on an issue directed by himself for the purpose of determining whether the English court has jurisdiction to entertain a suit brought by a wife in which she prays for a declaration that her marriage to her husband remains a valid and subsisting marriage. The following facts were agreed for the purpose of the trial of the issues (1) The petitioner, Mrs Garthwaite, was born and brought up in England, where she has lived all her life and where she has herhome. (2) On the 1st December 1950 she married the respondent, then. a domiciled Englishman, in London. The marriage was valid. (3) After the marriage the parties lived together in England., and there is one child of the marriage. (4) On the 27th July 1956 the respondent obtained a decree in the State of Nevada, United States of America, which purported to dissolve his marriage to the petitioner. (5) For the purpose of the trial of this issue only the petitioner does not dispute that the respondent was domiciled in the State of New York at the date of the Nevada decree and admits that he was so domiciled and resident at the date of the filing of the petition in this suit.
The wife's case is that the Nevada decree was invalid to dissolve her marriage, so that she remains married to her husband. For the purpose of the trial of this issue, it is unnecessary to express any view as to the merits or otherwise of this submission.
Although there is no prayer for relief beyond the bare doclaration of the validity and subsistence of the marriage, it is contended that the court has jurisdiction to entertain the suit pursuant to Order XV, tfule 17, Rules of the Supreme Court, (Ordor XXV, rule 5, of the 1963 Rules) which provides as follows: "No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or ordor is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could bo claimed, or not". It is common ground that pursuant to Rule 82 of the Matrimonial Causes Rules, 1957, this rule applies to the Probate, Divorce and Admiralty Division as it applies to other Divisions of the High Court.
Mr Stirling (as he then was), who appeared for the wife in the court below, accepted that the Probate, Divorce and Admiralty Division has jurisdiction in a proper case to entertain a suit for a bare declaration. Thus in Har-Shefi v. Har-Shefl (1953) Probate, page 161, this court held by a majority that jurisdiction existed pursuant to this rule to grant a declaration that a marriage had been validly dissolved although no other relief had been claimed. In the present case the learned judge held that thy converse mustequally apply, and that jurisdiction must similarly exist to grant a declaration that a marriage is subsisting. No argument to the contrary was addressed to the learned judge, and it has not been disputed in this court that in a proper case jurisdiction exists to grant a bare declaration as to the validity and subsistence of a marriage. The question is whether in the circumstances of this case, where the husband is admittedly domiciled in the State of New York, the court has jurisdiction to entertain a petition for the declaration prayed for; The learned judge held that such jurisdiction exists, and. the husband now appeals to this court.
Before the judge two submissions were put forward on behalf of the wife. (1) It was submitted that the jurisdictional rules by which the court is ordinarily guided in matrimonial causes where the parties are domiciled or resident abroad have no application to a petition such as this for a bare declaration that the marriage is subsisting. It was accordingly contended that the fact of the husband being domiciled in the State of New York is of no relevance whatsoever. (2) If, contrary to the above submission, a petition such as that in the present caso is subject to the ordinary jurisdictional rules, it was submitted that the wife, on the strength of the Nevada decree, is entitled to sue as a femme sole and to assert an English domicil of her own so as to found jurisdiction.
The learned judge felt unable to accede to the first and wider of these submissions, but he decided in favour of the wife on the second submission. He held that, pending determination of the present suit, the wife's foreign domicil (which by reason of her marriage she acquired when her husband acquired his foreign domicil) must be regarded as being in abeyance. In such circumstances, the wife, he thought, is entitled to rely on what he called her " de facto domicil" in England so as to found jurisdiction. On this appeal Lord Gardiner's argument on behalf of the husband was almost wholly directed to demolishing the ground on which the learnod judge based his judgment. Sir John Poster, who has appeared for the wife, has not on his part sought to supportthe ratio on which the judge based his deoision. He directed practically the whole of his argument towards the wider submission that jurisdiction to grant a declaration as to the validity of a marriage exists regardless of the domicll of the parties. For this purpose we granted leave during the hearing of the appeal to file a cross-notice on behalf of the wife.
I would observe at this stage that, although residence by the wife in England for three years preceding the presentation of the petition has been pleadSd, it is not, and could not be, argued that section 18, subsection (1) (b) of the Matrimonial Causes Act 1950 can bo invoked for the purpose of founding jurisdiction to grant a bare declaration. Nor has the wife sought to rely on section 18, subsection (1) (a) of the Act. Had she done so, she would on the agreed facts have been entitled to allege desertion, and to claim a decree of restitution of conjugal rights notwithstanding the domicil of her husband. In that event the decree which she would have obtained would in the ordinary course incorporate o. declaration as to the subsistence of her marriage.
Let me deal first as briefly as I can with the ground on which the learned judge based his decision. No authority has been cited for the proposition that a wife can acquire a do facto domicil independent of her de jure domicil, nor do I think that this view can possibly be supported. Indeed, the very expression " de facto domicil" strikes me as a contradiction in terms. Domicil is something which every person acquires by operation of law. The law imputes to every person at birth a domicil of origin derived from that of his or her parents. Equally a domicil of choice may b-3 acquired by operation of law from the fact of settling in a now country with the intention of permanent residence therein; see ( Udny v. Udny Law Reports, 1 Scotoh and Divorce Appeals, page 441). It is well established that a wife upon her marriage acquires by operation of law the domicil of her husband, which she retains so long as the marriage subsists; ( Harvey v. Farnle, 8 Appeal Oases, page 43; Attorney General for Alberta v. Cook, 1926 Appeal Cases, page 444).She retains this domicil though she is deserted by her husband; ( Yalverton v. Yelverton, 4 Swabey & Tristram, page 574), and oven though she may have obtained a decree of judicial separation; ( Attorney General for Alberta v. Cook). It is not possible to have more than one domicil at one and the same time.
Accordingly if, as the wife asserts, her marriage is still subsisting, her domicil is that of her husband, that is New York State. It follows on well established principles that, if this case is properly to be regarded as one falling within the matrimonial jurisdiction of the High Court, the wife by her very assertion deprives the court of jurisdiction to entertain the suit. Apart from the statutory exceptions to which I have already referrod, based on a wife's residence In this country, the English court has no jurisdiction to grant a divorce against a husband domiciled abroad; ( Le Hesurier v. Le Hesurler, 1895 Appeal Cases, page 517, approved by the House of Lords in Lord Advocate v. Jaffrey, 1921 Appeal Cases, page 146). Nor could the court, in the exercise of the matrimonial jurisdiction inherited from the old ecclesiastical courts, grant any other form of matrimonial relief against a husband who is also resident abroad; ( Ramsay- Fairfax v. Ramsay-Pairfax, 1956 Probate, page 115). If, therefore, the declaration which the wife now seeks is to be regarded as a form of matrimonial relief, it is not in ray view a form of relief which is within the matrimonial jurisdiction of the court to grant.
This view is in no way inconsistent with the decision in Har-Shefl v. Har-Shefl, whore this court, by a majority, held that it had jurisdiction to hear a wife's petition for a declaration that her marriage hud been dissolved notwithstanding, the foreign domicil of the hus. band. For in that caae if, as the wife alleged, her marriage had been dissolved, she was in a position to assert a domicil of her own in England, and if this was so, the court clearly had jurisdiction to grant a declaration as to her status. In those circumstances it was held that the wife was entitled to assert her English domicil so as to found jurisdiction, so thatsfisiaaing thai sfaa proved her facts {that is, that her marriage jiad In...
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