Jurisdictional Problems In Nullity
| Date | 01 November 1960 |
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00645.x |
| Author | J. A. Andrews |
| Published date | 01 November 1960 |
Nov.
1960
NOTES
OF
CASES
699
The legal position was, therefore, that the appellant following
the
jugement par de‘faut
was an accused person within the meaning
of the Act, but following the
jugement itkatif dbfaut
he became
a
convicted person and he had thus been wrongly proceeded against
in the extradition proceedings when he was referred to as
‘‘
an
accused person
”
and he was, therefore, awarded his writ of habeas
corpus.
D.
G.
VALENTINE.
JURISDICTIONAL PROBLEMS
IN
NULLITY
THE
recent decision of Karminski
J.
in
Ross-Smith (orse. Radford)
v.
Ross-Smith
seems to have put the problem of jurisdiction in
nullity suits in voidable marriages back into the melting pot. The
question at issue was whether, in a case where a petition of nullity
is raised on the ground of wilful refusal to consummate
or
alter-
natively on the ground of incapacity, jurisdiction might be assumed
by an English court solely on the ground that the marriage was
celebrated in England. At the time of the petition the parties were
domiciled in Scotland, the petitioner was living in England and her
husband in Kuwait. Karminski
J.
held that although the court
of the
lex loci celebrationis
would have jurisdiction to entertain the
suit were
it
based on any cause which would render the marriage
void
ab initio
that court would not have jurisdiction in cases of
voidable marriages without some further connecting factor such as
the domicile of the parties
or
the residence of the defendant.
The assumption of jurisdiction by English courts in matrimonial
causes depends upon the nature of the cause. In some cases the
court is simply being asked to declare an existing status, as in cases
of void marriages where the court’s function is simply to declare
that the status
of
the parties has not been changed by their
marriage ceremony. In these cases the English courts have
assumed jurisdiction on a very wide variety of connecting factors
including the fact that the marriage was celebrated in England.
There are a number of cases supporting this proposition and their
rationale appears to be that
“
by professing to enter into a contract
in England [the parties] mutually gave each other the right to
have the force and effect of that contract determined by an
English tribunal.”
A
petition for annulment of a voidable marriage, except in cases
of wilful refusal to consummate, involves a question of capacity to
contract at the time of the marriage and is very different from
a
petition for divorce on the grounds of, say, cruelty
or
adultery,
[
1960
3
W.L.R.
753;
[
19601
3
All
E.R.
70.
2
e.g., bimonin
v.
Mallac
(1860)
2
Sw.
&
Tr.
67;
Sottomayer
v.
De Barros
(1877) 3
P.D.
1
(C.A.);
Linke
v.
Van Aerde
(1894) 10
T.L.R.
426;
see also
Hill
(orse Petchey)
v.
Hill
[1960]
P.
130
at
p.
133
et seg.
and
Dicey’s
Conflict
of
Laws,
7th ed.,
p.
355,
note
46.
8
Sir Cresswell Cresswell
in
Simonin
v.
MaZZac
(1860)
2
Sw.
&
Tr.
at
p.
75.
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