Judicial Interpretation of Divorce Jurisdiction In The Conflict of Laws
| Published date | 01 November 1954 |
| Author | R. H. Graveson |
| Date | 01 November 1954 |
| DOI | http://doi.org/10.1111/j.1468-2230.1954.tb00271.x |
THE
MODERN
LAW
REVIEW
Volume
17
November
1954
No.
6
JUDICIAL INTERPRETATION OF DIVORCE
JURISDICTION IN
THE
CONFLICT
OF
LAWS
OF
the various ways in which the common law may develop, that
of the reformulation (whether deliberate
or
unintentional) of tradi-
tional concepts, divisions and interpretations
of
law is not the least
important. Though a little unorthodox, it is often effective and,
indeed, under certain circumstances the only effective method that
judges can adopt to evolve a new rule of law
or
to expand an
existing one. on divorce
in the field of conflict
of
laws provide a demonstration
of
this
judicial technique.
In particular, we can see in judgments of the Court of Appeal
within the past year
or
so
incursions of two kinds into the principle
generally accepted as having been established by the Privy Council’s
opinion in
Le
illesurier
v.
Le
Lllesurier.2
The well-known principle
enunciated by that case is that jurisdiction in divorce belongs
exclusively to the courts of the domicile of the parties. The less
well-known exception to the principle established in the same case
will be considered later. The inappropriateness of the principle
in an absolute sense under modern social conditions
has
been
a
theme for writers:’ on the conflict of laws for many years, while
judges from time to time have voiced their uneasiness at the
position
of
the deserted wife under such
a
principle of jurisdiction.
Even on a matter
so
devoid of electoral appeal Parliament has taken
1
War-SItcfi
v.
Har-Slac,fi
[105.2]
2
All
E.R.
8.21;
on
appeal,
[l953]
1
All
E.R.
783. Ikcision
on
pel,ition [1!153] 2
All
E.1i.
373;
Jocrpli
v.
Joeplt
[1!)63]
2
A11
E.R.
710;
1
W.L.H.
118.2;
Truuers
v.
Wolfey
[l!)53]
3
W.L.H.
507.
2
[18!)R]
A.C.
517.
Dicey’s
Conflict
of
Lnw;~
(6th
rtl.
I949),
107; Falconbridge,
Essogs
in
the
Conflict
of
Laws,
613-4
:
Rcad,
The
IZccog?iition
of
Foreign
Judgmrnts,
203
at
seq.
;
I
note
in
6
M.L.R.
(1941)
GG;
Tuck,
XXII
Can.Ilar
Rev.
G86;
Morris,
XXIV
Can.Bar
Rev.
73
;
(;raveson,
3
I.L.Q. 371
:
26
B.Y.R.I.L.
(1949)
207:
37
Tran.sactions
of
the
Grolzi!.s
Socicty,
14!1
(l!%l).
4
Sce,
e.g.,
dicta
in
Niboyct
v.
Niboyct
(1878)
4
P.D.
1;
Ogd.en
v.
Oqdm
r1!308]
P.
46:
Stutltatos
v.
Stalliafos
[1013]
1’.
46;
and
Dc
M(~,~tnig~
v:
De
It
is suggested that several recent cases
Montuig71
“13]
P.
154.
\.oI..
17
32
501
502
THE
MODERN
LAW
REVIEW
VOL.
17
action,5 though admittedly on the motion of a private member.6
It
is entirely in keeping with the spirit of the age and the develop-
ment of juristic thought on the conflict of laws that a new inter-
pretation has been placed on this Privy Council decision of
1895,
both in a transfer of emphasis from the question of choice of
jurisdiction to that of choice of law and, in
a
second direction, in an
extension of the basis of jurisdiction from domicile to residence
when justified on the grounds of similarity of legal rules when the
question before the court is one of the recognition of a foreign
decree of divorce.
A.
On the first point the case of
Har-Shefi
v.
Har-Shefi
in its
various phases constitutes a development with interesting possibili-
ties in the whole field of the recognition of religious forms of
marriage and divorce. This litigation arose from the following
facts: in
1950
the husband, a domiciled Israeli, married the wife,
a domiciled Englishwoman, in Israel according to Jewish form.
The marriage was valid in all respects. The parties resided in
England until the husband was deported in
1951,
when he resumed
his
residence in Israel and where he continued to be domiciled. In
September,
1951,
the wife received a Jewish bill of divorcement
at
the court of the Chief Rabbi in London. In May,
1952,
the wife,
still resident in England, petitioned the High Court for a declaration
that her marriage had been validly dissolved by the Jewish bill of
divorcement. The husband had purported to enter an appearance
but was unable to furnish an address within the jurisdiction, and
because the registrar declined to set this unusual case down for
trial without directions from the judge, the wife applied
em parte
by summons for leave to proceed with the petition.
The judgment of Barnard
J.
was based on his interpretation
of
the provi~ion,~ on which the petition was founded, that
"
No action
or
proceeding shall be open to objection, on the ground that a
merely declaratory judgment
or
order is sought thereby, and the
court may make binding declarations of right whether any con-
sequential relief is
or
could be claimed,
or
not."
s
In dismissing the
summons and the petition the learned judge assimilated the wife's
suit
to
one
for
a declaration of nullity
'
and on the authorityof
De
Reneville
v.
De Reneville
lo
held that the proper court to consider
Choice
of
law in relation to religious divorces
5
Matrimonial Causes Act, 1937,
s.
13; Matrimonial Causes (War Marriages) Art,
1944; Law Reform (M~sceflaneous Provisions)
Act,
1949,
s.
1
;
Matrimonial
Causes Act, 1950,
6s.
16
and 18.
6
Sir Alan Herbert.
7
R.S.C. Ord.,
25,
r.
5.
8
Applied
to
divorce practice and procedure by Matrimonial Causes Rules
(9.1.
1950,
No.
1940).
r.
80.
9
"
The wife is, in effect, seeking a declaration
of
nullity on the ground that
her marriage has been validly dissolved
":
per Barnard
J.
[1952]
9
All
E.R.
at
822.
10
[1946]
P.
100.
Nov.
1951
DIVORCE IN
THE
CONFLICT
OF
LAWS
503
the validity of the divorce was the court
01
the domicile. In
so
doing he impliedly treated the wife as not being domiciled in Eng-
land,
i.e.,
as being domiciled in Israel, on the presumption that the
divorce on which he was asked to make the declaration was invalid,
SO
that by English law the wife, being still married, retained the
Israeli domicile of her husband. The implication that the divorce
was invalid and that the wife therefore retained her husband’s
domicile was manifestly sound, since exclusive jurisdiction in divorce
in England belongs to a court,
i.e.,
the High Court, other than the
one purporting to dissolve this particular marriage. What appears
to the writer unfortunate in this judgment is the assimilation of the
declaratory jurisdiction here involved to that in nullity of marriage.
Nullity concerns marriages that are either void
or
voidable, as
De
Reneville’s
case amply shows
:
no question of voidness
or
voidability
ever arose in the
Har-Shefi
marriage.
It
was perfectly valid at all
times. The only question was whether the purported Jewish
divorce had
or
had not effectively put an end to it, not retrospec-
tively (as would a nullity decree), but simply from the date of the
delivery of the bill of divorcement. Furthermore, the declaratory
jurisdiction here invoked involves no change of status of the parties,
but merely a statement of what their status is. Nullity jurisdiction,
on
the other hand, at least
so
far as concerns voidable marriages, is
(apart from statute ‘I) deliberately and properly confined to a basis
of domicile
or
possibly common residence,12 since the real effect
of
a
decree of annulment is retrospectively to change the status
of
the parties from married to unmarried, domicile being the normal
basis of jurisdiction over personal status.
l3
From the dismissal of her summons and petition the wife
appealed,14 and her case was heard by the Court of Appeal con-
sisting of Singleton, Denning and Hodson L.JJ. After declaring
that
‘‘
a petition cannot be dismissed solely by reason of the fact
that all that is sought is merely a declaratory judgment,”
l5
Single-
ton L.
J.,
without expressly dissenting from the other members
of
the court, agreed broadly with the view of Barnard
J.,
that the
proper court
to
consider the validity of the divorce was that of the
domicile, though he would apparently have been prepared to exer-
cise jurisdiction if adequate evidence
of
the law of the domicile
(Israel) had been presented to the court. Several points arise on a
reading of this judgment. In the first place, it is a satisfactory,
and indeed a necessary, construction of the Rule of Court that the
court has jurisdiction to give a declaratory judgment in matrimonial
11
Matrimonial
Causes
(War
Mariiages)
Act,
1944
;
hhtriinonial
Causes
Act,
1950,
s.
18
(1).
12
Sce
Dp
Rcneuille
v.
De
Roicuille
[1948]
P.
100:
Cum/
v
Ca~q
[I9491
P.
420;
compare
Hrcfter
v.
Illrtter
[lo141
1’.
95
and
Enstcrbtoob
V.
Eastcsbrook
[1944]
P.
10
13
Inuerclydc
v.
Inverclyde
[1931]
P.
29.
14
[1953]
1
All
E.R.
783.
15
Ibtd..
786.
504
THE MODERN LAW REVIEW
VOL.
17
causes even where no other particular relief
or
remedy is requested.
Secondly, the learned Lord Justice was not prepared to assume that
the Jewish divorce was valid for the purpose of releasing the wife
from her husband’s domicile,
so
as to enable her to acquire a
domicile in England.
It
appears that the references by both
Barnard
J.
and Singleton
L.J.
to the court of the domicile as the
proper court to determine the validity of the divorce are not easy
to
reconcile with the established practice of the English courts. The
question has hitherto been “Has the court making the decree
jurisdiction to do
so?
”
l6
i.e.,
a question of choice of jurisdiction,
not,
“
Is the decree valid by the law of the domicile
?
”
i.e.,
a
question of choice of law.“ Hitherto the only question in divorce
has been one
of
choice of jurisdiction: as applied to the particular
facts of the
Har-Shefi
case the simple question on these traditional
lines would have been,
“
Has the Beth Din in London jurisdiction
in divorce
?
’’
If
not, the divorce is invalid
;
if
such jurisdiction in
England is recognised, the further question arises
:
“
On what basis
or
bases may such jurisdiction be exercised?
”
Must the parties
be domiciled in England, as in the case of High Court jurisdiction
?
Or
would
it
be too destructive of the established jurisdictional
pattern to allow parties domiciled in England to resort to unilateral
religious divorce? In other words, must the parties be
not
domi-
ciled in England
?
If
it is agreed that the major question involved
in the case is one
of
jurisdiction, not of choice of law, we may
speculate on the result of an application in the High Court for an
order of certiorari directed to the Chief Rabbi to establish the
divorce jurisdiction of the London Beth Din as an English divorce
court additional to the Divorce Division of the High Court.’’
All three Lords Justices agreed that a purely declaratory juris-
diction existed in matters of divorce.” Lord Justice Denning’s
reference to a remark by Sir Herbert Jenner is much in point, in
which the latter explained the reason for the ecclesiastical declara-
tory jurisdiction,
“
on the ground that it is material for their own
sakes and that of the public that their status should be known; and
the object
of
the proceeding is to have the status
of
the parties to the
marriage defined by the sentence
of
a competent court.”
‘O
No
less
in
point was the warning
of
Hodson L.J. against encouraging
16
Bnfcr
v.
Botcr
[1!)1)6]
P.
200.
‘7
This approach
ha,s
hitherto been jnstifird only in (he type
of
situation covered
by the principle in
Armitage
v.
Att.-Gcn.
[IOOG]
1’.
125. !rhe point is con-
niderrd
by
I’rol’essor
J.
A.
(’.
Thomas
iii
2
111tr.r~utional
autf
Cowparutive
Law
Quarterly,
444
ct
seq.
18
lhrri
tlin
juridical nature
of
the
Jeivish
Gct
(see the learned
note
by Vesey
Fitzgernld,
3
I.C.L.Q. (1954)
159)
it
would
seam appropriate to apply the
noririal test
of
choice
of
jiiristliution.
13
Tlin
implications
in
thv
contlict
of
laws
01’
this
aspcct
of
the
case
arr considercd
in
a
learned article
by
Francescakis,
19
Zeitsclirift
fiir
aus/undisches
und
intcrnn~io~tales
Privatrecht
(1954)
58.
20
Bay
v.
Slwrlcood
d?
Iltry
(1836)
1
Curt.
at
227.
Nov.
1954
DIVORCE
IN
THE
CONFLICT
OF
LAWS
505
“
applications for what may be called naked declarations where no
sensible purpose is served thereby.”
21
Having agreed that a simple declaratory jurisdiction existed,
Denning and Hodson
L.JJ.
proceeded to determine the bases on
which it should be exercised. Denning
L.J.
sought a basis in the
domicile of the wife in England: that depended on the validity
of the Jewish divorce,
“and that
in
turn depends on the
law
of
Israel.”
22
In these words lies a new development of English law.
The validity of the divorce for an English court is generally thought
to depend, with respect to the learned Lord Justice, on whether
the court pronouncing the divorce had jurisdiction to do
so.
The
question is one of jurisdiction, not as has been said already, one of
choice of law.
So
far as established rules of English conflict
of
laws
are concerned the attitude of the law of the domicile
to
a divorce
pronounced in England is irrelevant to the validity of that divorce
in an English court. One cannot easily
fit
into existing principles
the further remark of the learned Lord Justice that he did
“
not
place any reliance on the fact that the bill of divorcement was
delivered in England.”
23
By all traditional standards no fact
could have been more relevant. The test of validity is conclusively
moved from the realm of jurisdiction into that of choice of law by
Denning L.J.’s further observation that
“
The parties were at the
time of the divorce domiciled in Israel, and the validity of the
divorce must depend on the law of Israel and not on the law of
England.”
24
Unlike Singleton L.J., Hodson L.J. was prepared to assume
the validity of the divorce for the purpose
of
assuming jurisdiction
on the basis of the wife’s domicile. The learned Lord Justice
agreed with Barnard
J.
in assimilating the bases of this declaratory
jurisdiction with those of nullity proceedings. Whatever objec-
tions may be taken to the analogy, the rule at least is clear-as
clear, that is, as are the bases
of
nullity jurisdiction. In the
Divorce Division Pearce
J.
was presented with the direct issue on
a petition by
Mrs.
Har-Shefi for a declaration that her marriage
had been validly dissolved by the Beth-Din
proceeding^.^^
In
making the declaration as asked the learned judge remarked that
the marriage had been validly dissolved by the only form
of
divorce
open to a Jew domiciled in Israel. Following the Court of Appeal,
Pearce
J.
held that the validity of the divorce depended on the
law
of
the parties’ domicile, and after citing the passage from the
opinion of the Privy Council in
Sasson
v.
Sasson
26
in which Lord
21
[1953]
1
All
E.R.
at 789.
22
Per
Derining
L.J.,
abzd.,
at 788.
23
Ibid.,
at 788-9.
24
Ibrd.,
at 789.
25
Har-Slrefi
v.
Har
Shefi
[1053]
2
All
E.R.
373
26
[1924]
A.C.
1007
at
1009.
Thus we reach the final chapter of this unusual story.
506
THE
MODERN LAW REVIEW
VOL.
17
Dunedin remarked,
“
The case of
Le Mesurier
v.
Le Mesurier
27
finally settled that the proper and only
cou7t
is the
court
of
the
domicile,” again changed the whole emphasis from one of juris-
diction to one of choice of law by commenting,28
“
To hold that a
marriage which has been legally dissolved according to the
law
of the domicile continues binding in this country is to create
confusion and hardship, and is, in my opinion, contrary to the
principle laid down in
Le Memrier
v.
Le
Mesurier
and the
principles of international law.”
Jurists are under
no
duty to maintain the solemn fiction that
judges never make or change the law, but merely declare what
it is and always has been. Lord Justice Denning has tried to free
the judges themselves from this fetter of traditional judicial
te~hnique.~~
For
several years English writers on the conflict of
laws, with Dr.
G.
C.
Cheshire as their most able leader, have been
advocating a shift of emphasis in matrimonial causes from questions
of jurisdiction
to
those
of
choice of law.30 In the
Har-Shefi
cases
it appears to be taking place; but these decisions bring in their
train several difficult problems which cannot be investigated here.
At
least, however, the question of the validity of a Jewish divorce
given in England between parties domiciled in Israel appears
firmly settled
:
settled, that is to say, until we refer
to
a
still more
recent case. In the light of the principle that the Court of Appeal
is generally bound by its own decisions31
it
is
of
interest to
examine
Joseph
V.
Joseph,32
in which the same court considered
the nature of a Jewish bill of divorcement delivered by the Beth
Din in London purporting to dissolve the marriage of two Jews
domiciled in China at some date before the proceedings where,
as
in Israel, the
Get
would be recognised as a valid divorce.
The two reports
33
of this case are dissimilar on the most material
fact of the domicile of the parties at the date of the Rabbinical
decree. In neither report is the point considered in the actual
judgments. The statement of facts in the
Weekly Law Reports
includes the passage
:
“
The parties, both of whom were of the
Jewish faith, were married on June
13, 1926,
in the Synagogue
in
Shanghai.
.
.
.
In
1936
the husband gave up his work in Shanghai,
left his wife and went
to
India. In April,
1947,
he settled in
England and acquired an English domicile of choice.”
34
Beyond
stating that “The parties who were of the Jewish race and faith
were married in Shanghai in
1926
where the husband was then
2‘
[I8951
A.C.
.517.
28
[lo531
2
All
E.R.
at
375.
29
The Changtng Law
(1953),
Prcface,
p.
v;i.
30
Cheshire,
Private International Law,
4th
ed.,
346;
Graveson,
ConfEict
of
Laws,
31
Young
v.
Brzstol
Aeroplane
Co.
El9441
K.B.
718.
32
[1953]
9
All
E.R.
710.
33
[1953] 2
All
E.R.
710; [1953]
1
W.L.R.
1182.
54
[1953]
1
W.L.R.
1182.
2nd
ed.,
353; 37
Grotius
Society
Transactions,
149.
Nov.
1954
DIVORCE IN THE CONFLICT OF
LAWS
507
domiciled. In
1937
the husband deserted the wife
. .
.”35
the
All
England Law Reports
give no indication of the domicile of the
parties at the date of the
Get,
thereby inducing the presumption
of an indefinite continuance of the husband’s Chinese domicile.
If
the latter were the case, the facts would be hardly distinguishable
from those in
Har-Shefi
v.
Har-Shefi,
involving
a
continuance of
the husband’s Israeli domicile, and the decisions in the two cases
would be not merely irreconcilable but in flat contradiction. .For
the purpose of the presenb comparison the more complete and
affirmative statement of domicile will be adopted.36
In striking contrast to the judgments in
Har-Shefi
v.
Har-Shefi
are the Court of Appeal’s pronouncements in
Joseph’s
case.
Somervell L.J. said,37
“
She asked for
a
divorce valid accord-
ing to Jewish law. There is no suggestion that both parties did
not realise that
it
had no legal effect in English law.” Jenkins L.J.
spoke words to the same effect
:
“
Counsel for the wife invited
us
to ignore the
Get
given to the wife as
a
mere nullity having no
effect in English law, either as a decree of divorce
or
as an agree-
ment to separate.
I
agree with him that the
Get
has neither
operation.
It
clearly does not effect a divorce.
.
.
.”
Finally let
us
note the words of Hodson L.J.,39 “The certificate is a valid
document for what
it
purports to be, namely, a certificate of
a
Jewish bill of divorcement given according to Jewish religious law.
It does not purport to be a decree of divorce dissolving the marriage
according to the law of this country.”
All three judgments in
Joseph
v.
Joseph
are in complete accord
with the traditional pattern of English principles
of
conflict of laws,
the most relevant of which is that only the High Court has juris-
diction to pronounce
a
valid decree of divorce in England. How,
then, should we attempt to reconcile this case with the principles
applied in the
Har-Shefi
litigation?
It
is, perhaps, unfortunate
that
Joseph
v.
Joseph
was heard in the Court of Appeal before the
court’s decision in
Har-Shefi
v.
Har-Shefi
was fully reported;
though one member
of
the court, Hodson L.J. had taken part in
the decision of both cases. Let us see what relevant facts were
common and what different in the two cases.
Similarities
In
Har-Shefi
they had been married, and the husband was then domiciled in
Israel. In
Joseph
they had been married, and the husband was then
domiciled in China, though the domiciles at that date are of little
relevance
to
the point at issue.
1.
In both cases the parties were of Jewish faith.
35
[19531
2
All
E.R.
710.
36
As
also
by
Dr.
Schmitthoff,
English
ConfEict
of
Laws,
3rd
ed.,
347,
note
34.
37
[1953]
2
All
E.R.
710,
at
712.
$8
Ibid.
39
Ibid.,
at
713.
508
THE
MODERN
IAW
REVIEW
VOL.
17
2.
In both cases a bill of divorcement had been delivered in
London under the procedure of the Beth Din, the London court
of the Chief Rabbi.
Diflerences
1.
In
Har-Shefi
the petitioner was asking the court to declare
that the Jewish divorce had validly dissolved her marriage.
For
the
purpose of giving the wife an English domicile in her own right
so
as to allow the court to exercise jurisdiction on that basis,
Hodson L.J. in the Court of Appeal, held that “the crucial fact
that the wife has been validly divorced must be assumed
so
as to
give her an English domicile at the material date, namely, the date
of the institution of these proceedings.”40 The learned Lord
Justice, in other words, simply made an assumption with respect to
a
matter that was not directly in issue before the court, in order
that the court should be able, if required, to consider on the merits
the assumption
it
had made. Strictly, therefore, Hodson L.J. has
maintained a consistently logical position in respect of Jewish
marriages in both the
Har-Shefi
and
Joseph
cases. Of the other
members of the court, Singleton L.J., following Barnard
J.
in the
court below, was not prepared to make such an assumption in the
wife’s favour, while Denning L.J. employed reasoning
41
which
omitted this assumption in favour of the wife’s English domicile.
Pearce
J.,
on the hearing of the wife’s petition, was bound by the
holding of the higher court that he had jurisdiction, and under-
standably did not examine the reasons for the existence of such
jurisdiction but proceeded to examine the validity of the divorce
by Israeli law.
2.
A
further difference of note between the
Har-Shefi
and
Joseph
cases is that, in the former, the wife was concerned that the court
should recognise the Jewish proceedings as a divorce, whereas in
the latter she was anxious to minimise their effect. In
Joseph
V.
Joseph
the wife had filed a normal petition for divorce on the
grounde of her husband’s desertion five years earlier. In the
interval, at her request, her husband had obtained a Jewish divorce
in London, and the main question before the court was whether
the existence of this divorce had the effect of putting an end to the
husband’s desertion.
If
it did, as was held, the wife’s petition on
the ground of desertion must fail; but the court went no further
than holding that the Jewish divorce had effect in England as a
separation by agreement.
3.
Accepting an English domicile of the parties at the date
of
the
Get
in
Joseph’s
case as against an Israeli domicile in
Har-Shefi’s
40
[1953]
1
All
E.R.
at
790.
41
i.e.,
(a) that the validity
of
the divorce was governed by Jewish law, evidence
of which could be given before English courts;
(b)
”
that the petitioner
is
an Englishwoman resident in this country, intendlng
to
make her life here,
and she wants
to
know how she stands in this country
”-ibid.,
at
789.
Nov.
1954
DIVORCE
IN
THE
CONFLICT
OF
LAWS
509
involves the crucial distinction between the two cases, for the
obvious reason that divorce jurisdiction depends upon domicile.
The underlying problem before the court in cases of this kind which
involve consideration
of
Oriental personal laws is perhaps not
SO
much whether
a
divorce results from an unilateral act of the
husband, such as the Mohammedan
talak
and, in certain respects,
the Jewish
Get,
but the modified application
of
a personal law
founding jurisdiction and based on ferritorial domicile
to
a personal
law based on religious adherence. We are accordingly driven to
ask two questions
:
1.
Should the basis
of
divorce jurisdiction in
English law be the same for marriages of all kinds when the parties
are domiciled in England at the date of the divorce proceedings;
or
in other words, should English law recognise the validity
of
divorces in England in proceedings
or
forms other than those
of
the
High Court when such forms are permitted by the religious personal
law
of
the parties territorially domiciled in England
?
The Court
of
Appeal in
Joseph
v.
Joseph
has impliedly answered this question
in the negative.
2.
Where parties are not domiciled in England at
the relevant date, should English law recognise a divorce pro-
nounced
in
England
according to the forms of the personal religious
law
of
the parties?
Har-Shefi's
case gives an affirmative answer
to the second question, but subject to an important limitation,
namely, that at the date of the divorce the parties are domiciled,
in
the territorial sense of English
law,
in a country in which their
personal religious law can operate fully in respect (at least) of their
divorce. Thus, while the English court would recognise a
Get
given in England in respect of Jewish parties then domiciled in
Israel, it would not do
so
if they were at that date domiciled in
Scotland, New York State
or
any country in which divorce juris-
diction was founded on the Western concept of territorial domicile,
subject only to the well-known exception in
Amzitage
v.
Att.-Gen.42
The weight of modern authority still places the emphasis on
domiciliary jurisdiction in divorce in the tradition
of
the main
principle of
Le Merurier
v.
Le
Me~urier.~~
But a foothold, at least,
has been cut by Denning
L.J.
and Pearce
J.
for argument in
support of the modern view that
it
is more important in matters
of
personal status that the personal law should be applied than that
the courts of one country
or
another should have juri~diction.~'
B.
Choice
of
jurisdiction
in
the recognition of foreign decrees
oi
The second direction in which the principle
of
Le illesurier
v.
Le
Alesurier
has recently been reinterpreted is found in the judgments
divorce
42
[19061
P.
135.
k3
[l895]
A
C.
517.
44
Cheshire,
Prrvata Internatzonal
Law,
4th
ed.,
346;
Giaveson,
111
28
Brrtrsh
Year
Book
of
Inteinatronal
Law,
273
et
seq.
VOL.
17
910
THE
MODERN
LAW
REVIEW
of
the Court of Appeal in
Travers
v.
H01ley.~~
Unlike the
Har-
Shefi
cases,
Travers
v.
Holley
involves the primary question
of choice of jurisdiction, not of choice
of
law. As
this
decision has
already received learned c~mment,"~
it
is only necessary in the
present context to recall the facts and the special relevance of the
judgment
to
the reinterpretation
of
Le Mesurier's
case. Briefly,
the appellant husband,
of
English domicile of origin, had gone with
his wife in
1937
to live in New' South Wales, where he was held to
have acquired a domicile of choice.
In
1944
the New South Wales
court granted a decree
of
divorce
on
the wife's petition based
on
desertion by her husband since
1940.
At the date of the divorce
the husband was
no
longer domiciled in New South Wales, and the
court's jurisdiction was based
on
local statutory jurisdiction
47
corresponding closely to the English jurisdictional rule in favour
of
the deserted wife.48 The question
of
the recognition of this
decree arose on a petition in England by the husband for divorce
against his wife (who had remarried
on
the strength of the New
South Wales decree).
For
more than half
a
century English courts have rejected any
other judicial basis of divorce jurisdiction than domicile. They
have done
so
on the authority of the most decisive passage in the
judgment of the Privy Council in
Le Mesurier
v.
Lffi Mesurier40
in
which Lord Watson declared, "Their Lordships have in these
circumstances and upon these considerations come to the con-
clusion that, according to international law, the domicile
for
the
time being
of
the married pair affords the only true test of juris-
diction to dissolve their marriage." The principle has been
followed by English courts of first instance," the House of Lords
on
a Scots appeal,51 and by the Judicial Committee itself.sa
In
a
qualified form it was indeed used by the House of Lords in an
English appeals3 thirty years before
Le Mesu~er's
case. And yet
the judgment which embodies this very principle is being used as
authority by the Court of Appeal to support a conflicting proposi-
tion, namely, the recognition of a foreign divorce decree based on
residence.
To
appreciate the manner in which this is done, and
done legitimately (it is submitted) within the scope of the doctrine
45
[1953] 3
W.L.R.
507.
46
Griswold,
67
Harvard Law Reoiew
(1954) 823;
Francescakis,
19
Zeitschzift
fiir
auslandischcs
und
internationales Przvatreclit
(1954)
58;
Gow,
3
I.C.L.Q.
(1954)
152;
Thomas,
ibid.,
at
156;
Mann,
17
M.L.R.
79;
Blackburn,
17
M.L.R.
(1954) 471.
47
Matrimonial Causes Act,
1899, s. 16
(a)
(New
South
Wales).
48
Matrimonial Causes,
Act,
1937,
s.
13,
re-enacted
with
amendments
in
Matri-
49
[I8951
A.C.
517.
50
H.
v.
H.
[1928]
P.
206.
51
Lord Advocate
v.
Jaffrey
[lo211
1
A.C.
146.
32
Aft.-Gen.
for
Alberta
v.
Cook
[I9261
A.C.
444.
53
Shaw
v.
Gould
(1868)
L.R.
3
H.L.
55.
monial Causes
Act,
1950,
8.
18
(1).
Nov.
1964
DIVORCE IN THE CONFLICT
OF
LAWS
511
of
precedent, we should perhaps refresh our minds on the circum-
stances of
Le Mesurier’s
case.
Lord Watson delivering the opinion of the Privy Council in
Le Mesurier
v.
Le Mesurier5*
considered in the early part of his
judgment the jurisdiction of the courts of Ceylon to make a decree
of
divorce between two British subjects. He accepted the proposi-
tion that the jurisdiction of the District Court of Matara would
be established
if
its jurisdiction were derived
“
either from some
recognised principle of the general law
of
nations
or
from some
domestic rule
of
the Roman-Dutch Law.” The effect of the first
type of jurisdiction would be that any decree dissolving a marriage
should be respected by the tribunals of every civilised country.55
.‘
On the other hand,” continued Lord Watson,
“
a decree of divorce
a:
vinculo,
pronounced by a court whose jurisdiction is solely derived
from some rule of municipal law peculiar to its forum, cannot,
when it trenches upon the interest of any other country to whose
tribunals the spouses were amenable, claim extraterritorial
authority.” Thus we find the context of the authority for holding
in
Travers
v.
Holley
56
that a decree of a foreign court based on
a
residential jurisdiction may under certain circumstances be recog-
nised in England;
for
both Somervell and Hodson L.JJ. (Jenkins
L.J.
dissenting) used the sentence last cited as authority for their
decision. Recognition of a foreign divorce decree would depend
on whether the non-domiciliary basis of divorce jurisdiction was
or
was not common to both the English and the foreign trial court.
On principle it seems
to
me plain,” declared Somervell
L.
J.
,57
“that our courts in this matter should recognise a jurisdiction
which they themselves claim.”
58
Hodson L.J. expresses a similar
view
59
in
a
very notable judgment which faces squarely the main
issue of how to deal with out-of-date precedents. At a date sub-
sequent to
1895
Parliament has conferred on the English courts
divorce jurisdiction on a basis
of
residence, and the argument that
the domicile of both spouses at the time of the proceedings is the
sole test of jurisdiction in divorce “is not valid at the present
day.”
6o
The conclusion is both enlightened and illuminating that,
“
The principle laid down and followed since the
Le Mesurier
case
must be interpreted in the light
of
the legislation which has extended
46
54
[1895] A.C.
517.
55
Ibid.,
at p.
527.
56
[1953]
3
W.L.R.
507.
57
Ibid.,
at p. 511.
58
Cf.
Addison
v.
Brown
[1954]
2
All
E.R.
213,
in which the English court
upheld a maintenance agreement excluding the jurisdiction
of
a Californian
court, though a similar exclusion
of
Engllsh jurisdiction would be void on
grounds of publio policy according to
Bennett
v.
Bennett
[1952]
1
K.B.
249.
50
“I
would say that where, as here, there
is
in substance reciprocity, it would
he 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
”:
ibid.,
at p. 516.
60
Per
Hodson
L.J.,
at p. 515.
512
THE
MODERN
LAW
REVIEW
Vor..
17
the power of the courts of this country in the case of persons not
domiciled here.”
61
In thus ably solving one question, this decision raises others.
It
does
so
not only in the field of conflict of laws but more broadly
in respect of the principles of the interpretation of the doctrine of
precedent and, in particular, with regard to the principle (and its
exceptions) that the Court of Appeal is bound by its own decisions.6z
Within the confines, wide though they be, of private international
law itself an apparent conflict is presented somewhat analogous
to one familiar in the field of international between this
decision of the Court
of
Appeal on the one hand and on the other the
decisions
of
the Judicial Committee both in
Le Mesurier’s
case and
-4tt.-Gen.
for
Alberta
v.
Cook
64
and of the House
of
Lords on the
Scottish appeal of
Lord Advocate
v.
Jaflrey.”
Yet how can one
say that
Travers
v.
Holley
conflicts with
Le
Mesurier
v.
Le lllesurier
when part of the single judgment in the latter is cited as authority,
partial at least, in two
of
the three judgments in the former
?
It
is
suggested that the conflict, if such there is, originates in and derives
from the single judgment in
Le Mecurier’s
case itself. On one side
lies the purely negative statement
of
Lord Watson, seized upon
by the Court
of
Appeal, that
“
a decree of divorce
a
vinculo,
pro-
nounced by a court whose jurisdiction is solely derived from some
rule of municipal law peculiar to its forum, cannot, when
it
trenches
upon the interest of any other country to whose tribunals the
spouses were amenable, claim extraterritorial authority.’’ We have
seen how the court was able to employ this negative passage in a
positive and affirmative sense to uphold the New South Wales
decree. We may set against this extract the later and very affirma-
tive passage of the judgment of the Judicial Committee that we
have also cited above, that
“
the domicile
for
the time being
of
the
married pair affords the only true test of jurisdiction to dissolve
their marriage.” We would submit that these two passages con-
flict only in the sense that an exception conflicts with its rule
or
local custom conflicts with general law. In other wmds, a full
statement of the rule of divorce jurisdiction would embody both the
principle
of
domicile and the exception in favour of some non-
domiciliary rule
of
the forum. The Court of Appeal in
Travers
V.
Holley
must be credited, not with ignoring the domiciliary principle
of divorce jurisdiction but with applying
it
more fully than had
been done before by realising that the case before the court raised
61
Per
Hodson
L.J.,
at
p.
516.
62
Young
v.
Bristol Aeroplane
Co.
(above).
63
Between
the
decision
of
the
Court
of
Appeal
in
The
Torni
[1932]
P.
27,
and
that
of
the
J.C.P.C.
in
Vita
Food
Products, Inc.
V.
Unus Shipping
CO.,
Ltd. [I9391 A.C.
277.
64
[1926] A.C.
444.
65
[1921]
1
A.C.
146.
Nov.
1954
DIVORCE IN THE CONFLICT
OF
LAWS
513
the applicability of the exception to the principle. When, there-
fore, we speak of the development of case law through the reformu-
lation of traditional interpretations of decisions, we can find in
Travers
v.
Holley
an example in which emphasis has been moved
from the traditional rule to its hitherto almost ignored exception.
There are in the law reports many possibilities of this kind for the
internal development of the law: if to them we add the broad
principle
of
interpretation of old principles in the light of subsequent
statutes, perhaps the most important lesson of
Travers
v.
Holley,
we need not fear for the future of the common law.
Postscript
In a learned note
66
in this
Review
which appeared after the
above was written
Mr.
Blackburn has argued that the decision in
Travers
v.
Holley
is bad law, as it not only conflicts with the House
of
Lords’ decision in
Shaw
V.
Gould
6i
(which denied recognition to
a
Scots decree of divorce not founded on domicile in the English
sense) but thereby under one
of
the exceptions in
Young
v.
Bristol
Aeroplane
CO.~’
need not bind the Court of Appeal in the future.
If
the first point can be sustained, the second follows automatically.
It
may, therefore, be observed that
Shuw
v.
Gould
was an English
appeal to the House of Lords decided on principles of English law,
though the question before the House was not simply one
of
the
recognition of a foreign decree
of
divorce where domiciliary juris-
diction was lacking, but, in the words
of
Lord Westbury,
“
This
case depends on the answer to the question, whether a marriage
solemnised in England at the time can be dissolved by the decree
of a foreign tribunal.”
It
is thus arguable, though with limited
justification, that the decision must be restricted to foreign divorces
of
English marriages. Secondly, the special context
of
the divorce
in
Shaw
v.
Gould
was the non-existence of judicial divorce in
England at the date of the Scottish The subsequent enact-
ment of the Matrimonial Causes Act in
1857,
requiring the court
to follow as nearly as may be the principles of the former ecclesias-
tical jurisdiction, caused great uncertainty as to the basis of English
divorce jurisdiction, as is evidenced in
Niboyet
v.
Nib~yet.~~
For
these reasons the opinion
of
the Judicial Committee in
Le
illesurier
v.
Le
ille~urier,~~
though not absolutely binding as a matter of
precedent, has been treated since
1895
as a correct statement of the
basis of English divorce jurisdiction and of that of the recognition
of foreign decrees. Between
Shuzu
v.
Gould
and
Le
Mesurier
v.
Le
Mesurier
in the sense in which it has been used in
Travers
v.
Holley
66
Above,
p.
471.
67
(1868)
L.R.
3
H.L.
55.
6’
[1944]
R.B.
718.
69
See judgment
of
Lord
Cranmorth,
and
Lolley’s
Case
(1812)
Russ.
L%
R.
237.
70
(1878) 4
P.D.
1.
71
[1895]
A.C.
517.
514
THE
MODERN LAW REVIEW
VVL.
17
there is clearly some discrepancy. On a strict application
of
the
doctrine of precedent
Mr.
Blackburn has a formidable argument.
On a historical and factual reading of the cases and their social,
legislative and judicial contexts, however,
it
is
far from certain that
Shaw
.v.
Gould
is decisive in the circumstances
of
the recent case.
But at least
it
is relevant. The failure of the Court of Appeal to
consider
it
is
remarkable; and the necessary reconciliation remains
a
problem for the future.
R.
H.
GRAVESON.*
*
Professor
of
Law
in
the
University of
London.
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