Johnson v Johnson
| Jurisdiction | England & Wales |
| Date | 1952 |
| Year | 1952 |
| Court | Court of Appeal |
Husband and Wife - Divorce - Petition within three years of date of marriage - Leave to present - Jurisdiction of special commissioner to grant leave -
An application by originating Summons under r. 2 (1) of the Matrimonial Causes Rules, 1950, for leave to present a petition for divorce before the expiration of three years from the date of the marriage, is a matter “connected with” a matrimonial cause, within section 70 (5) of the Supreme Court of Judicature (Consolidation) Act, 1925, and a special divorce commissioner has jurisdiction under the proviso to section 2 (1) of the Matrimonial Causes Act, 1950, to make an order granting leave.
APPEAL from Judge Wethered, sitting as special divorce commissioner.
The parties were married in June, 1950. In 1951 the husband, wishing to obtain a divorce, applied by originating summons to Commissioner Judge Paton for leave to present a petition within three years of the marriage. The commissioner gave leave to present the petition, but when the petition came before Judge Wethered he referred to section 70 (5) of the Supreme Court of Judicature (Consolidation) Act, 1925, F1 and following a decision of Wallington J., sitting at Leeds Assizes, in Ambler v. Ambler, F2 held that he had no jurisdiction to try and determine the cause. Wallington J. had said that it was plain that the matter did not “arise out of” a matrimonial cause because there was no such cause in existence when the order was made. Further, it seemed to him that the words “connected with any such cause” in section 70 (5) were inserted to indicate that once there was a matrimonial cause in the hands of a commissioner he had authority to determine any matter connected with it. He did not understand how anything could arise out of or be connected with a non-existent thing.
The husband appealed on the ground that the words “connected with” in section 70 (5) of the Act of 1925 were adequate to cover any future or contemplated matrimonial cause, and that Wallington J. had taken too narrow a view of the section.
When the appeal came before the court on December 4, 1951, their Lordships directed an adjournment to enable the King's Proctor to be represented.
H. S. Russell for the husband.
P. Colin Duncan for the King's Proctor. The decision of Wallington J., if allowed to stand, may have serious and far-reaching consequences. The point is not free from difficulty. Until Ambler v. AmblerF3 it was assumed that a commissioner had discretion to make an order giving leave to present a petition. If Wallington J. is right nobody can exercise this discretion outside London. Section 70 (5) applies to all persons exercising jurisdiction outside London. Prima facie there is much to be said for the judge's decision, because it is difficult to see how anything can arise out of something which is not in existence. The court, however, has to consider whether the judge was putting too narrow a construction on the words “matrimonial cause.” The prima facie use of the word “cause” may have led him to arrive at the conclusion he did, but he did not have the benefit of a full argument as to the meaning of “cause.” It is open to this court to give a wider meaning to the words of the section, having regard to the view expressed by other courts. In In re Nanaimo Community Hotel Ld.F4 the Canadian courts held that the statutory phrase “to determine all questions in connexion with an assessment” conferred jurisdiction to determine all matters leading up to, or which might lead up to, an assessment, or were intended to do so. It is, of course, not binding as a decision on this court, but, it is submitted, it is very helpful.
SOMERVELL L.J. This is an appeal from Judge Wethered, sitting as a special commissioner, who decided, in circumstances which will emerge, that he had no jurisdiction to entertain divorce proceedings. The parties were married on June 24, 1950. It is provided by section 2 of the Matrimonial Causes Act, 1950, that no petition for divorce shall be presented to the High Court unless at the date of the presentation three years have passed since the date of the marriage. Then there is a proviso that a judge of the High Court may, upon application being made to him in accordance with rules of court, allow a petition to be presented before three years have passed if in his opinion certain conditions are satisfied. The husband wished to seek a divorce within the three years, and, therefore, sought to make an application under that section. He made it to Judge Paton, sitting as a commissioner. [His Lordship read section 70 (5) of the Supreme Court of Judicature (Consolidation) Act, 1925, and continued:] Under the Matrimonial Causes (Special Commission) (No. 2) Order, 1946, made by virtue of the subsection which I have read, all classes of matrimonial causes may, subject to rules of court, be tried and determined by a special commissioner acting under a special commission. The question that arises in this case is whether, having regard to the words of section 70 (5), a...
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