Janine Yvonne Simone Viguie (Respondent (Petitioner) v Jacques Georges Eric Viguie (Appellant (First Respondent) Gisele Kallimopoulos (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE SACHS,LORD JUSTICE FENTON ATKINSON |
| Judgment Date | 13 January 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0113-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 January 1970 |
[1970] EWCA Civ J0113-2
In The Supreme Court of Judicature
Court of Appeal
(Civil List)
From: Sir Gordon Willmer (In Chambers)
Lord Justice Davies
Lord Justice Sachs and
Lord Justice Fenton Atkinson
MR GEOFFREY CRISPIN, Q.C. and MR C.W. ROSS-MUNRO (instructed by Messrs. Goodman Derrick & Co.) appeared on "behalf of the Appellant (First Respondent) husband.
MR MICHAEL SHERRARD, Q.C, and MR P. CREIGHTMORE (instructed by Mr Maurice Bilmes) appeared on behalf of the Respondent (Petitioner) wife.
Lord Justice Sachs will give the first judgment in this case.
This is an appeal from the refusal, on the 4th December, of Sir Gordon Willmer, sitting in Chambers, to order that there be stayed a wife's petition for divorce filed by virtue of the provisions of sec.40 of the Matrimonial Causes Act, 1965. This section, so far as relevant, reads: Subsection 1:"Without prejudice to any jurisdiction exercisable by the Court apart from this section, the Court shall have jurisdiction to entertain proceedings by a wife, notwithstanding that the husband is not domiciled in England… (b) in the case of proceedings for divorce… if - (i) 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"
The circumstances in which the petition came to be filed and the application for a stay made were as follows. The husband and wife were both born in and remain domiciled in France, where they married in 1951. There have been two children of the marriage, born respectively in 1956 and 1959. in the last-mentioned year the husband, who works in a French bank, came over to England to work in a subsidiary here and set up house in London with his wife and children. Since then they have been resident here for some ten years, except for a period of about 18 months commencing 1965, to which later reference will be made.
On 16th October 1968 the wife filed a petition alleging cruelty and. adultery on the part of the husband, the allegations extending over the major period of the marriage - 1956 being, however, the earliest date of a specific charge. About a month later, on 21st November 1968, the husband applied to the French Courts for leave to issue a petition for divorce, also alleging adultery. Leave has apparently been given, but for one reason or another the cause has not progressed with any rapidity, and it will be 2nd February of this year before there is the second of those meetings to attempt reconciliation which the French law requires.
As regards the wife's petition, this, albeit launched perfectly bona fide, was realised early in 1969 to be ineffective because of the 18 month interruption in English residence which has been mentioned. Accordingly a fresh petitionwas filed in August 1969 - there having in February been an amendment of the old petition to pray for judicial separation.
In the above set of circumstances Mr Crispin, in his customary compact and helpful presentation of a case, relies on a single point. Eschewing reference to what has been referred to as a voluminous mass of evidence he made the simple submission that because, in the proceedings in England, the husband could not cross-petition for a decree of divorce - see Levett v. Levett (1957 P., 156) - he would thus suffer an injustice if the divorce proceedings were continued here as opposed to being fought out in France, that the proceedings against him here were accordingly oppressive, and that they should be stayed.
Whether proceedings in this country should be stayed because of parallel proceedings being litigated in another country is a matter in each case for the discretion of the Court. It is, of course, a judicial discretion, and the principles upon which the Court exercises its jurisdiction in this behalf have been the subject of a great many decisions. The general...
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