Har-Shefi v Har-Shefi
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE DENNING,LORD JUSTICE HODSON |
| Judgment Date | 06 March 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0306-4 |
| Date | 06 March 1953 |
| Court | Court of Appeal |
[1953] EWCA Civ J0306-4
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Singleton
Lord Justice Denning and
Lord Justice Hodson
Counsel for the Appellant: MR WILLIAM LATEY, Q.C., and MR JOHN MORTIMER, instructed by Mr G. Parry-Jones, The Law Society; Divorce Department.
The Respondent was not present and was not represented.
The Petitioner, Hannah Har-Shefi prays for: 1. A declaration that the said marriage has been validly dissolved on, and no longer subsists since, the 6th day of September, 1951. 2. Alternatively a declaration that your Petitioner is no longer married to the Respondent. That is all.
The Petition reads as follows: "1. That on the 10th day of January, 1950, your Petitioner, then Hannah Cohen-Last, Spinster, was lawfully married to Elhanan Har-Shefi (hereinafter called 'the Respondent') at the office of the Chief Rabbinate of Jaffa and Tel-Aviv District Israel. 2. That after the said marriage your Petitioner and the Respondent lived and cohabited at divers places and at 25, Goldhurst Terrace, in the Country of London and there is living issue of the said marriage one child namely, Adina D'Ovra Sabra born on the 5th day of December 1950, 3. That your Petitioner is not living at 25, Goldhurst Terrace, aforesaid, that the Respondent, whose occupation when last known to your Petitioner was that of a Mechanic, is now living at 32, Jonah the Prophet Street, Tel-Aviv, Israel. 4. That your Petitioner is domiciled in England and that the Respondent is domiciled in Israel. 5. That there have been no previous proceedings in the High Court or in any County Court or Court of Summary Jurisdiction either by or on behalf of your Petitioner or the Respondent save and except that on the 13th day of August 1951 an Order was made by the Marylebone Magistrates Court awarding the custody of the said child to your Petitioner and the Respondent was ordered to pay 20s. weekly for its benefit, since which date the parties have not cohabited. 6. That on the 6th day September 1951 a Jewish Bill of Divorcement dissolving the said marriage was received by your Petitioner at the Beth Din, London, or Court ofthe Chief Rabbi. At the date of the said Bill of Divorcement both your Petitioner and the Respondent were domiciled in Israel, and the said Bill of Divorcement is valid to dissolve the marriage according to the laws of Israel."
In view of the unusual character of the Petition, the learned Resistrar declined to set down the case for trial without directions from the Judge. Accordingly, the Petitioner took out a Summons for leave to proceed with her Petition, and asking that the case be set down for trial. The Summons was heard by Mr Justice Barnard, who refused the Application of the Petitioner and dismissed the Petition. The Petitioner appeals to this Court, and two questions arise.
The first is whether the Court has jurisdiction to hear a Petition of this nature which seeks a declaration and nothing beyond that. In considering this question, I do not think that any good purpose is served by examination as to the practice of the Ecclesiastical Courts of old, though it may be that Mr Justice Ormerod in Schuck v. Schuck, reported in 66 Timess Law Reports at page 1179, over-stated it to some extent in the passage at page 1181: "It appears from the authorities that it was the established practice of the Ecclesiastical Courts to make such declaratory orders, and I see no reason why, if the circumstances are proper, such an order should not be made in the present case."
Since the year 1924 the Rules of the Supreme Court have applied in matrimonial suits in any matters of practice on procedure which is not governed by Statute or dealt with by the Matrimonial causes Rules. (See Rule 97 of the 1924 Rules, and Rule 81 of the 1937 Rules.) The Rule now in force is Rule 80 of the Matrimonial Causes Rules, 1950: "Subject to the provisions of these Rules and of any enactment, the Rules of the SupremeCourt shall, notwithstanding the provisions of Order LXVIII hereof, apply with the necessary modifications to the practice and procedure in any cause or matter to which these Rules apply."
This brings into play the provision of Order 25, Rule 5, which provides: "No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed, or not." This Rule was said by a majority decision of this Court in Guaranty Trust Company of New York v. Hannah & Company, reported in 1915 2 King's Bench Division at page 536, to be "merely an extension of the practice and procedure of the Court." Once it is clear that Order 25, Rule 5 applies to proceedings in the Divorce Court it seems to me that a petition cannot be dismissed solely by reason of the fact that all that is sought is a merely declaratory judgment. None the less, as the authorities cited in the notes to Order 25, Rule 5, show, any such claim will be carefully watched. The Court will not grant a declaration in the air. It is impossible to say from the Petition — - and that is all we have — - whether the Petitioner can show a case entitling her to the declaration which she seeks. That can, I think, only be determined on the hearing of the Petition itself. There may be nothing on which the aid of the Court can properly be invoked; on the other hand, it is possible that the Petitioner may be able to show grounds which would justify the granting of a declaration.
The other question depends on domicile. Mr Justice Barnard reached the conclusion that the proper Court to consider the validity of the divorce said to have been granted on the 6th September, 1951, is theCourt of Domicile, and that the English Courts had no jurisdiction to entertain the Petition. There is much to be said for that view. The marriage took place at the office of the Chief Rabbinate of Jaffa and Tel Aviv District. The Petition states that the Jewish Bill of Divorcement was received by the Petitioner at the Beth Din, London, and that at the date of the Bill of Divorcement both Petitioner and Respondent were domiciled in Israel. She states in Paragraph 4 that she is domiciled in England and that the Respondent is domiciled in Israel. Prima facie, she would retain the domicile of her husband. If there was a valid Decree of divorce she might well acquire another domicile, but that cannot be determined without a finding on the Decree of divorce. The State of Israel has its own Courts, and I should have thought that it was desirable that they should determine a matter of this kind, which affects the position of twopeople of the Jewish Faith, and which raises the question of the validity of a Bill of Divorcement of the court of the Chief Rabbi. I do not know that it would be necessary for her to go to Tel Aviv. I feel that we ought to have more information before the Courts of this country assume jurisdiction. This is an unusual proceeding, and it may well be that the question is capable of easy solution by some Tribunal or body.
I cannot see that there would be any hardship on the Petitioner if we refused jurisdiction, except that she has legal aid here, and that might not apply (or be necessary) elsewhere. However, I say no more on this subject as both my brethren hold the view that the Petitioner should be allowed to proceed — - which means that the appeal must be allowed.
The question in this case is whether the Divorce Court has jurisdiction to make a declarationas to the validity of a divorce.
The facts have not yet been judicially ascertained but we are asked by Mr Latey to assume that he will be able to prove these facts: The wife, who is a Jewess, was before her marriage an Englishwoman domiciled in England. The husband, who is a Jew, was domiciled in Israel. On the 10th January, 1950, they were lawfully married at Tel-Aviv in Israel at the office of the Chief Raboinate. They afterwards came to England, but the husband committed a criminal offence and was deported. Before he went, however, he delivered a get, which is a letter of divorce, recognised by the Jewish Rebbinical law as sufficient to dissolve a marriage, provided that the requisite formalities are complied with. This Bill of Divorcement, at it is called, was received by the wife at the Beth Din, London, which is the Court of the chief Rabbi. Mr Latey hopes to provide that that Bill of Divorcement was valid to dissolve the marriage according to the laws of Israel. The husband, on his deportation from this country, returned to Israel where he is said to have since married another woman, or, at least, gone through a form of marriage with her. The wife has decided to make England her permanent home, and now applies to the Divorce Court in this country for a declaration that the Bill of Divorcement was valid to dissolve the marriage. The case has not, however, been allowed to go for trial, because the Judge has ruled that the English Court has no jurisdiction to entertain it.
The first question is one of procedure only. It is whether the Divorce Court has jurisdiction to entertain a petition for a declaration when it is not attached to any other claim for relief. I am clearly of opinion that it has jurisdiction to do so. The Ecclesiastical Courts habitually entertained suits for declarations only.For instance, they entertained nullity suits, that is, suits of which the sole object was to obtain a declaration that what purported to be a valid marriage was in law a nullity. They did this not only in the case of a marriage which was void from the beginning, such as a bigamous marriage, but also in the case of a marriage which was only voidable, as, for instance, a marriage voidable for impotence. (See Shelford on Marriage...
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