Levett v Levett & Smith

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE HODSON,LORD JUSTICE ORMEROD
Judgment Date14 February 1957
Judgment citation (vLex)[1957] EWCA Civ J0214-2
Date14 February 1957
CourtCourt of Appeal

[1957] EWCA Civ J0214-2

In The Supreme Court of Judicature

Court of Appeal

Before:

the Master of the Rolls (Lord Ever Shed),

Lord Justice Hodson and

Lord Justice Ormerod.

Ronald Albert Levett
Petitioner Appellant
and
Ruth Martha Levett
Respondent
and
George Frederick Smith
Co-Respondent.

Mr NORMAN F. STOGDON (instructed by Messrs. Church Adams Tatham & Co., Agents for Messrs. Barwell & Blakiston, seaford, Sussex) appeared on behalf of the Appellant Petitioner.

The Respondent and Co-Respondent did not appear and were not represented.

THE MASTER OF THE ROLLS
1

: I will ask Lord Justice Hodson to deliver the first Judgment.

LORD JUSTICE HODSON
2

This is an appeal from an Order of Mr. Commissioner Bush-James dated the let October, 1956, by which he dismissed a Petition. The Petition was a Petition by Ronald Albert Levett first of all for a Declaration that his marriage to Ruth Martha Greiser, spinster, which took place on the 28th May, 1947, at the Garrison Church, Luneburg, Germany, was validly dissolved by a German Court; alternatively, If it were found that the marriage had not been dissolved, the Petitioner prayed for a divorce on the ground of the adultery of his wife, notwithstanding his own adultery. In respect of which he asked for the discretion of the Court to be exercised in his favour.

3

The first ground upon which the Petition was presented, namely, the ground that the marriage had already been dissolved end the relief sought being merely a Declaration to that effect, failed, and in my opinion rightly failed. The position was this, that in June of 1953 the Petitioner had been granted a decree of divorce against the Respondent on the ground of her adultery with a man said to have the Christian name of Bernhard, by the Provincial Court at Munster, Westphalia, in Germany. The decrees was confirmed in a final form at a later date, said in the Petition to have been In August 1953. That decree come into existence in the following circumstances: the wife, who was a German girl, had left her husband In England and gone back to her home in Germany; she there instituted proceedings for divorce in the German court against her English husband; the ground which she put forward was cruelty. The German legal procedure provided for the husband to be assisted in his defense, and although he was not required to go to Germany to deal with the matter, he wan put in the position of being able himself not only to deal with the charges of cruelty, but also to ask for relief himself on the ground of his wife's adultery. So that the position at the time when the Gorman proceedings took place was that the German girl had gone back to her German hone where she had been normally resident, and the proceedings were taken against the husband, who was not resident in Germany but was domiciled In this country, where he had always been domiciled. We have not examined in detail the German record and I think it is unnecessary to consider the circumstances in which the German court took jurisdiction in this case; but it appears that the wife's claim based on cruelty was withdrawn, and the husband obtained relief on the ground of adultery with a man said to be Bernhardt Some question was raised as to the sufficiency of the evidence of adultery, but, It is unnecessary to go into that. It appears from the material which is before this court that the wife had before the institution of the German proceeding and certainly before the German decrees was pronounced, committed adultery with a man who is named in this Petition as a second Co-Respondent. He was so named by amendment as late as the 28th June, 1955. when the husband Petitioner for the first time became aware of that adultery. It is clear from the wife's admission, which was signed by her, and from an admission signed by the Co-Respondent Smith, that she and Smith had lived together as man and wife since August 1953; and, as I nave said already, it is also clear from the statement of the wife that she has a child by Smith born on the 25th September, 1953, that she must have committed adultery with Smith at about the end of the year 1952.

4

From that statement of facts it is clear to my mind that the adultery of the wife with Smith was not in any way connived at in its inception or conduced to in its inception by the German proceeding, in so far as the husband was responsible for the German proceedings, in which he took part by way of claim for counter-relief; and accordingly, before I leave ay discussion of the facts, I think it is sufficient to say that, so far as I can sea, there is no Justification for any finding? against this husband of connivance, which would be an absolute bar to divorce, or conduct conducing, which would be a discretionary bar to divorce.

5

The present Petitioner contended before the Commissioner and has contended before this Court that the German degree ought to be recognized on the around which was dealt with in this Court in the case of ( Trevers v. Holley 1953 P. 246), the effect of which is I think accurately summarized by Mr Justice Davies in a later case as follows: "The observations in Travers v. Holley decide that this Court will recognize the right of foreign Courts to encroach upon the principle of domiciles only to the extent to which this Court does also."

6

The position in this country being that domiciles is the foundation of Jurisdiction and that there are exceptions to that rule, I must deal with the material exception. Section 18 of the Matrimonial Causes Act. 1950, provides for an additional Jurisdiction in proceedings by a wife. I draw attention to the fact that that additional Jurisdiction is in terms expressed to be available for a wife. Section 18 (1) (b) roads as follows: "In the case of proceedings for divorce or nullity of marriage, if the wife is resident in England and has been ordinarily resident there for a period of three years immediately proceeding the commencement of the Proceedings, and the husband is not domiciled in any other part of the United Kingdom or in the Channel Islands or the of Man."

7

I now read section 10 (1) itself: "without prejudice to any jurisdiction exercisable by the court apart from this section, the court shall by virtue of this section have Jurisdiction to entertain proceeding by a wife in any of the following cases" – and then follow amongst others (b), which I have already read.

8

It has been argued here that, having that provision of the 1950 Act in mind, following upon the principles annunciated in Travers v. Holley, this Court ought to recognize the German decree as being a valid decree of divorce. I confess I have found great difficulty in understanding how the argument can be addressed to this Court on the facts of this case. The difficulties in the way of applying Travers v. Holley to this case are numerous. I shall be forgiven if I do not attempt to deal with them all, because one difficulty seems to as to be quite fatal in this case. Even assuming that the wife was resident within the Jurisdiction of the German Court for a sufficient time to bring the doctrine into force, assuming that she had bean deserted by her husband in Germany so that the situation was exactly the case mutsatis gutandis as that contemplated by section 18 of the 1950 Act, to my mind this section 18 of the 1950 Act affords no support for the proposition that a husband, because he is respondent to proceedings brought by a wife, ought himself to be enabled to obtain relief on his answer. The Courts in this country under section 18 have Jurisdiction to entertain proceedings by a wife; it is quite true that the meaning of the word 'proceedings' may very according to its contest, and in one authority to which our attention was drawn, ( Pryor v. City Offices Co. 10 Q.B.D. 504), from the decision of this Court it was quite clear that the word 'proceedings" may cover the whole of the proceedings in question, beginning with the claim and including a counterclaim. It does not follow, to ay mind, at all that to the contort here, in considering the question of proceedings being entertained by a wife, the word "proceedings" includes anything that say follow in the same suit. The position is I...

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