Indyka v Indyka
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Morris of Borth-y-Gest,Lord Pearce,Lord Wilberforce,Lord Pearson |
| Judgment Date | 23 May 1967 |
| Judgment citation (vLex) | [1967] UKHL J0523-1 |
| Date | 23 May 1967 |
| Court | House of Lords |
[1967] UKHL J0523-1
Lord Reid
Lord Morris of Borth-y-Gest
Lord Pearce
Lord Wilberforce
Lord Pearson
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Indyka (A.P.) against Indyka (A.P.) that the Committee had heard Counsel, as well on Monday the 6th, as on Tuesday the 7th, Wednesday the 8th, Thursday the 9th, Monday the 13th and Tuesday the 14th, days of March last, upon the Petition and Appeal of Rudolph Fransisyck Indyka (Assisted Person), of 1 Crawford Gardens, Cliftonville, Margate, Kent, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal, of the 13th of July 1966, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Rose Indyka (Assisted Person) lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 13th day of July 1966, in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the costs incurred by the Appellant and by the Respondent in respect of the said Appeal to this House, be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960, the amount of such Costs to be certified by the Clerk of the Parliaments.
My Lords,
The Appellant, whom I shall call the husband, is a citizen of Czechoslovakia. He married his first wife there in January 1938. Both were then domiciled there. On the outbreak of war he joined the Czech army. Later he joined the Polish forces commanded by General Sikorski. At the end of the war he came to England, was demobilised here and decided to remain in England. He became domiciled in England in 1946. In 1948 the first wife petitioned for divorce in Czechoslovakia where she had resided throughout, and on 18th January 1949 decree of divorce was granted by the appropriate; Court of that country on the ground of deep disruption of marital relations, but on the application of the wife no declaration of guilt was incorporated in the judgment. It is not disputed that under the law of Czechoslovakia the Czech Court had jurisdiction and this was a valid decree of divorce.
Some time later the husband heard about this divorce. He believed that it was valid and that he was free to remarry. In 1959 he married the Respondent (the second wife) who was an English woman domiciled in England. In 1964 the second wife petitioned for divorce on the ground of cruelty. In his defence the husband, no doubt acting on legal advice, alleged that the Czech divorce was invalid and that therefore his second marriage was invalid. Latey, J. accepted this contention and pronounced decree of nullity of the second marriage. On appeal his decision was reversed by the Court of Appeal (Lord Denning, M.R. and Diplock, L.J., Russell, L.J. dissenting).
This case raises the general question of the extent of the right or duty of the Courts of England to recognise a foreign decree of divorce which is valid in the country where it was pronounced. The essential facts are that when the wife began proceedings and obtained her decree both she and her husband were, according to our law, domiciled in England. But both were citizens of Czechoslovakia, their home was there after they married until he left it and the wife had resided in that country all her life. It is not clear from the evidence whether jurisdiction under Czech law depended on the nationality of the parties, or the residence of the wife or both, but clearly it had nothing to do with domicile in our sense. The question is whether your Lordships are precluded by English law from recognising this foreign decree by the mere fact that at the relevant time the parties were domiciled in England. I accept for the purposes of this case the present doctrine of English law that during the subsistence of a marriage the wife cannot have a domicile different from that of her husband. This rule may (or may not) be "the last barbarous relic of a wife's servitude" (per Lord Denning, M.R. in Gray v. Formosa [1963] P. 259 at page 267), but to alter it might have wide repercussions and I think that this matter had better be left to Parliament.
Inevitably the argument before Latey, J. and the Court of Appeal turned on the application of the decision in Travers v. Holley [1953] P. 246. In my opinion the decision in that case was right, but I think that it must be based on wider grounds than those adopted by the Court of Appeal—on grounds which the operation of the rule stare decisis would have prevented that Court from adopting. In that case the spouses married in England and emigrated to New South Wales where the husband acquired a domicile of choice. On the outbreak of war he joined the Australian forces and later transferred to the British Army. In 1944 the wife, alleging desertion, was granted decree of divorce in New South Wales. The Court here had to decide whether that divorce could be recognised as valid in this country. It was alleged that, before proceedings were begun in New South Wales, the husband had abandoned his domicile of choice and reacquired his English domicile of origin, and that therefore even if the New South Wales Court still had jurisdiction under the law there, we could not recognise the validity of its decree. But the Court of Appeal held that, even if he had so abandoned his Australian domicile, that did not prevent us from recognising the New South Wales decree.
In order to understand the reason given it is necessary to start from Le Mesurier v. Le Mesurier [1895] A.C. 517. The Court in Travers v. Holley accepted, as they were bound to do, the general proposition that that case established that the domicile of the husband at the time when proceedings are begun is the sole test of jurisdiction for divorce, and that it followed from that that an English Court cannot recognise a decree of divorce granted in another country unless the husband was, according to our ideas, domiciled in that country when the proceedings began. But the Court of Appeal relied on the fact that Parliament had enacted by section 13 of the Matrimonial Causes Act, 1937, that—
"where a wife has been deserted by her husband … and the husband was immediately before the desertion … domiciled in England and Wales, the Court shall have jurisdiction for the purposes of any proceedings under Part VIII of the principal Act notwithstanding that the husband has changed his domicile since the desertion."
This Act, of course, did not apply to New South Wales and it made no reference to recognition of foreign divorces. But it so happened that an earlier Act of the Legislature of New South Wales had given to wives deserted there an almost identical right to petition there. Hodson, L.J. said, referring to the English Act of 1937:
"It seems to me, therefore, that Parliament has cut the ground from the argument put forward on behalf of the husband. 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 institutions of proceedings, because that is the jurisdiction which they themselves claim, what is the situation when the courts of this country arrogate to themselves jurisdiction in the case of persons not domiciled here at the material date? It must surely be that what entitles an English court to assume jurisdiction must be equally effective in the case of a foreign court."…
"I would say that where, as here, there is in substance reciprocity, it would be contrary to principle and inconsistent with comity if the courts of this country were to refuse to recognise a jurisdiction which mutatis mutandis they claim for themselves. The principle laid down and followed since the Le Mesurier case [1895] A.C. 517, must I think, be in interpreted in the light of the legislation which has extended the power of the courts of this country in the case of persons not domiciled here."
Somervell, L.J. dealt briefly with this matter. He said:
"on principle it seems to me plain that our Courts in this matter should recognise a jurisdiction which they themselves claim. I do not myself really understand on what grounds it was submitted that the result should be otherwise."
Jenkins, L.J. had dissented on another point but he stated his agreement on this point.
Before I comment on these reasons I think I should trace the subsequent development of the Travers v. Holley doctrine. Most of the subsequent cases arose out of the farther extension of the jurisdiction of the English Courts enacted by the Law Reform (Miscellaneous Provisions) Act, 1949, which provided in section 1 (now incorporated in section 40 of the Matrimonial Causes Act, 1965) that "the High Court in England shall have jurisdiction in proceedings by a wife for divorce, notwithstanding that the husband is not domiciled in England, if the wife is resident in England and has been ordinarily resident there for a period of three years immediately preceding the commencement of the proceedings …". At first there was a tendency to require that the foreign statutory provisions must within narrow limits...
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