Joseph v Joseph
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SOMERVELL,LORD JUSTICE JENKINS,LORD JUSTICE HODSON |
| Judgment Date | 15 July 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0715-2 |
| Court | Court of Appeal |
| Date | 15 July 1953 |
[1953] EWCA Civ J0715-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Somervell
Lord Justice Jenkins and
Lord Justice Hodson
MR. PHINEAS QUASS and MR. RALPH MILNER (instructed by Messrs. Harold Miller & Company) appeared as Counsel on behalf of the Appellant (Petitioner).
MR. BRIAN POWER (instructed by Messrs. G. Houghton & Son) appeared as Counsel on behalf of the Respondent (Respondent).
LORD JUSTICE SOMERVELL: We need not trouble you, Mr. Power.
This is an appeal from a Judgment of Mr. Commissioner Grazebrook. The wife petitioned for divorce on the ground of desertion. The parties were of the Jewish race and faith and were married in 1926 at Shanghai. The husband, who had originally been born and domiciled in India, was at that time domiciled in Shanghai. Some elevenyears later, according to the Petition in 1937, he deserted his wife. He took no steps to provide for her or for the child of the marriage though at time, at any rate, she asked for maintenance for the child. There was a letter which he wrote to her shortly after he left in which he said he had no money to support her and he did not intend to come back to her. The wife was in England from 1938 to 1940 and from a fairly early stage she was making enquiries about what under Jewish law or custom is called a Get. In 1940 she returned to China, the position being still as I have described, the husband, as found by the Commissioner, being in desertion. At that time she said, "If you will not come back to me give me a Jewish Get or divorce". She was in Shanghai from 1940 to 1948 when she came back to London. On the 19th September, 1948, there is a document headed "Beth Din, London. Court of the Chief Rabbi", which says this. "This is to certify that Rebecca Joseph" of such-and-such address, "received her Get (Jewish Bill of divorcement) at this Beth Din (Court of the Chief Rabbi) on Sunday", and then there is the Jewish date, "corresponding to the 19th September, 1948, and she is free to marry again in accordance with Jewish religious law after 90 clear days from the aforementioned date". In the husband's amended Answer in which he says he is not guilty of desertion as alleged, he goes on: "If, which is not admitted, the Respondent did desert the Petitioner as alleged, then the said desertion was brought to an end by the Petitioner consenting to their continued separation by obtaining a Get, or Jewish 'divorce' at the Court of the Chief Rabbi, Beth Din, London, on the 19th day of September, 1948".
The Petition 1B dated the 8th January, 1952, and therefore under our law it had to be shown, for the Petitioner to success that the husband was in a state of desertion for three years previous to that date. On the facts, apart from the effect of the Get, the learned Commissioner accepted in substance the wife's evidence that the husband was in desertion and Ithink he also accepted, if it had been necessary so to find, that the husband had intimated in the plainest possible way that in no circumstances was he prepared to come back to his wife. The question remains whether the circumstances attending the Get and its effect prevent, as from that date, desertion running.
Before I read what the learned Commissioner himself said I will read one or two passages from the wife's evidence. She is being asked, in the 1940 instance, about 1940. She says, "I went to the Beth Din and told them the circumstances of ray case". Then she is stopped from saying what she told them. Then the question is put in this way: "The question I asked was, what was it you were wanting at that time when you went to the Beth Din as far as your husband was concerned? (A) Well, I wanted at that time either my husband to return to me – I wanted him back, or to let him give me a Jewish divorce". Then she is asked about 1948 when she came back and lived in London with a Mr. and Mrs. Jacob, Mr. Jacob being her nephew. The learned Commissioner accepted her evidence, which was supported by Mrs. Jacob, that they got into touch, with her husband and again asked him if he would come back, and he again refused. Then she got in touch with the Beth Din. She was asked, "What was your motive in September 1948 in pressing for and going through with this Jewish divorce?(A) Well, my motive was that I wanted to return to China, and over there it would regularise my position before the community; a Jewish divorce is regarded over there as a complete dissolution of ray marriage". There was no evidence before the Court as to the law in Shanghai and, for the purpose of this judgment, I accept what she said, that at any rate she believed that this document was one which, if as she intended she returned to Shanghai, would be recognised as a divorce in that country. She said later, when asked about the position in this country as distinct from Shanghai, "I always did appreciate it, but seeing...
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...Hadkinson v Hadkinson [1952] P 285, [1952] 2 All ER 567, CA. Hyman v Hyman [1929] AC 601, [1929] All ER Rep 345, HL. Joseph v Joseph [1953] 1 WLR 1182, [1953] 2 All ER 710, O (a minor) (contact: indirect contact), Re[1996] 1 FCR 317, CA. Richards v Richards [1984] AC 174, [1983] 2 All ER 80......
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