Indyka v Indyka

JurisdictionEngland & Wales
JudgeLord Justice Diplock,Lord Justice Russell
Judgment Date13 July 1966
Judgment citation (vLex)[1966] EWCA Civ J0713-1
Date13 July 1966
CourtCourt of Appeal
Rose Indyka
Petitioner Appellant
and
Rudolph Fransisyck Indyka
Respondent

[1966] EWCA Civ J0713-1

Before:

The Master of the Rolls (Lord Denning)

Lord Justice Diplock and

Lord Justice Russell

In The Supreme Court of Judicature

Court of Appeal

From Mr Justice Latey

Mr BRYAN ANNS (instructed by Messrs Boys & Maughan) appeared as Counsel for the Appellant.

Mr M. PICARD (instructed by Messrs Shindler & Co.) appeared as Counsel for the Respondent.

1

THE MASTER OF THE ROLLS (Read by LORD JUSTICE DIPLOCK): On 16th January, 1938, Rudolf Indyka married his first wife, Helena, at Karvinna in Czechoslovakia in accordance with Roman Catholic rites. He was 26 and she was 18. The marriage was undoubtedly a lawful marriage, valid by the law of Czechoslovakia. Nine months later, in September 1938, Hitler invaded Czechoslovakia. The husband had to leave home and join the army. He had hard experiences all through the war and finished up in England in 1946. He has been here ever since. He never returned to his wife.

2

In 1948 his wife applied to the Courts in Czechoslovakia for a divorce. We have her petition and the judgment of the court. It has been translated into English. She said in her petition: "On 1.9.1939 the respondent left me and to this day he resides in England and does not intend to come back, although he would have had time and opportunity to do so since the end of the war. In spite of a request in writing, he refuses to return and to resume the married life which we carried on at our last joint residence at No. 1558 Karvinna. The respondent does not, moreover, show any interest in me at all; and also for my maintenance I depend entirely on myself. I remark that the respondent himself proposed a divorce to me in a letter which I enclose". (Unfortunately this letter is missing and we have not seen it). "For all these reasons a profound disruption of matrimonial relations has arisen between us, for which the respondent is exclusively responsible".

3

On 30th September, 1948, the Courts of Czechoslovakia granted her a divorce. It gave a reasoned judgment accepting the wif's case and adjudged that "the marriage is dissolved without any declaration as to the guilt of the parties".

4

In the next year, 1949, the husband's mother telephoned to him in England and told him that the wife had got a divorce. He asked her to send the papers to prove it. He told her that he was still a young man, and if he wanted to marry again, he wouldwant the documents. His mother did as he asked. She sent to bun the petition and judgment which I have just recited. They were official documents issued under the authority of the Courts of Czechoslovakia. He wrote and thanked his mother for them. He knew that the documents might one day be very important for him. One of the things he did with the documents was that he took them to the Revenue Authorities here to show that, when he came to England, he was a married man until 1949, and entitled to tax relief.

5

In 1959 he met his second wife, Rose. He told her that he had been married and divorced, and had the divorce papers with him. Rose accepted what he said: and on 20th March, 1959, he married Rose at the Thanet Register Office. In the marriage certificate he described himself as an hotel chef and his condition as "previous marriage dissolved". He lived with his second wife, Rose, in a house at 1 Crawford Gardens, Cliftonville; but although both were living there, on 16th May, 1964, Rose went to the Magistrates and charged him with persistent cruelty. The Magistrates dismissed the compiaint. On 27th August, 1964, Rose petitioned for divorce on the ground of cruelty, both still living in the same house. On 24th November, 1964, he put in an answer admitting the second marriage but denying the cruelty.

6

Thus far it was a straightforward divorce case based on a marriage that was admittedly valid. But then in June 1965 the husband amended his answer so as to say that he was never lawfully married to his second wife. He said the Czechoslovakian decree of divorce was not valid in England: and that in England he is still married to his first wife. He admits that the Czechoslovakian divorce was and is valid in Czechoslovakia. But he says that the English Courts will not recognise the divorce.

7

On 4th February, 1966, Mr Justice Latey tried the issue whether the Czechoslovakian divorce should be recognised or not. The husband gave evidence that he did not desert his first wife but that long ago in 1946 she wrote and said that she would notlive with him again and that she was living with someone else and had a child by him. Thereupon be made up his mind to stay in England permanently. The Judge accepted this evidence. He held that the husband did not desert his first wife, but that she deserted him. The Judge found that since 1946 the husband had been domiciled in England. We must accept these findings. But the Judge, on those findings, held that in law the Czechoslovakian decree pronounced in January 1949 was not valid in English Courts. The marriage to Rose in 1959 was bigamous. She is not his wife and never was his wife.

8

I must say that the decision of the Judge fills me with dismay. If the Courts of England were not to recognise this Czechoslovakian divorce, it would be a disgrace to the law that should prevail between nations. At the end of the nineteenth century the Courts of this country were committed by judicial decision to these propositions:-

9

A wife cannot have a separate domicile of her own. She always takes her husband's domicile. A married couple have, therefore, only one domicile and that is the domicile of the husband.

10

The only Courts which have jurisdiction to dissolve a marriage are the Courts of the country in which the parties are domiciled.

11

A decree of divorce pronounced by the Courts of the domicile should be recognised by us and all other countries. But a decree pronounced by any Court, other than the domicile, is inoperative and should not be recognised by us or anyone else.

12

According to the Judge, those propositions apply to this case. The result is that in January 1949 the first wife, Helena (if she wanted to obtain a divorce) ought to have come to England because her husband was then domiciled in England. She ought to have obtained a divorce in the Courts of England. It matters not that she was living behind the Iron Curtain and would not have been allowed to leave Czechoslovakia. Nor does it matter that she had no money to pay her fare, or even enough to instruct lawyers here. Nor does it count that she had lived in Czechoslovakiaall her life, indeed in her native town, and never left it. Nor does it matter that she went to her own Courts and obtained there a divorce that was perfectly valid in Czechoslovakia. That divorce, so held the Judge, will not be recognised in England.

13

I do not accept that reasoning. During the twentieth century those old propositions have been eroded; in the first place by Parliament; and then by the Courts. By a series of statutes, Parliament has given relief to English wives. An English wife, who is married to a man domiciled in another country, is no longer bound to follow him to his own country in order to obtain a divorce. She can get a divorce here in England. In particular, since 1st January, 1938, when a husband, who is living with his wife in England, deserts her and goes to live in a foreign country and changes his domicile to that foreign country, she can come to the English Courts and obtain a divorce here, see Section 13 of the Matrimonial Causes Act, 1937. Further, since 16th December, 1949, when a wife has been ordinarily resident in England for three years, then even though her husband is domiciled abroad, she can come to the English Courts and obtain a divorce here, see Section 1 of the Law Reform (Miscellaneous Provisions) Act, 1949. Those statutes deal only with the jurisdiction of the English Courts. They do not consider our recognition of the decrees of foreign Courts.

14

I turn from the statutes to the decision of the Courts. Just as Parliament has given relief to English wives in English Courts, the Judges have given recognition to foreign wives in foreign Courts. The reasoning is simple enough. Seeing that the English Courts have jurisdiction to grant divorces to English wives, even though their husbands are domiciled abroad, so also foreign Courts should have jurisdiction to grant divorces to foreign wives, even though their husbands are not domiciled there. We should recognise in other countries a like jurisdiction to that which we claim for ourselves. This doctrine was first enunciatedin Travers v. Holley 1953 Probate, p. 246, and has proved most beneficial. I know that the Courts of Victoria in Australia have declined to follow it, see Fenton v. Fenton, 1957 Victoria Law Reports, p. 17. But I gladly follow it. It means that we have these new propositions established: If a wife in a foreign country is deserted by her husband (who changes his domicile) and she then goes to her own Courts and obtains a divorce, that divorce will be recognised in England, see Travers v. Holley, 1953 Probate, p. 246. And if a wife has been resident in a foreign country for over three years and then goes to the Courts of that country and obtains a divorce, that divorce will be recognised in this country, even though her husband was not domiciled in that country, see Robinson-Scott v. Robinson-Scott, 1958 Probate, p. 71.

15

Mr Justice Latey accepted these new propositions to this extent; if the first wife had obtained a divorce in Czechoslovakia after December 1949, we would recognise it. But as she obtained her divorce eleven months earlier, in January 1949, we would not recognise it. The reason was because the English statute (which first gave English wives the benefit of three-year residence) was not enacted until December 1949.

16

If the doctrine of Travers...

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