NOTES OF CASES
| Published date | 01 March 1957 |
| Date | 01 March 1957 |
| DOI | http://doi.org/10.1111/j.1468-2230.1957.tb00436.x |
NOTES
OF
CASES
THE
ECONOMIC
INTERESTS
OF
CHILDREN
AS
MATTERS
MERELY
INCIDENTAL
TO
DIVORCE
THREE
recent decisions have illustrated the effect that a decree
of
divorce may have on the financial relations between a husband
and wife. They have made even clearer the neglect of our law
to take proper account of a more important question,
viz.,
the
economic effect of such a decree
on
the children of the marriage,
who are not parties to such proceedings, whose interests are not
necessarily represented, and whose status as the children of their
parents is not affected.
The most startling, and also the most complicated, of these
decisions is that of
Wood
v.
Wood.’
Here a man who had acquired
a domicile in Nevada divorced there, without her knowledge
or
an
opportunity
for
her to be heard, the wife he had previously deserted
in
England, on the ground that they had not lived together for
three years. The Divisional Court held that,
on
returning to this
country, he was entitled to the discharge
of
an order previously
made by the magistrates’ court in England that he should pay
maintenance for his wife and the two infant children of their
marriage.
Apart from any questions arising between the husband and wife,
this means that, having obtained a divorce
in
Nevada, the father
could, while resident in England and enjoying an income here,
evade his common law duty to maintain the infant children born
to him here in lawful wedlock, although even the court of Nevada
had not decided that he was any less the father of his children,
because by the law of Nevada their mother was
no
longer his wife.
Although an appeal is expected,
it
may be
of
interest to consider
the facts
of
this situation, and the broad principles of the law
applied to produce
so
odious a conclusion.
The parties were married in England in June,
1945,
the husband
then being of English nationality and domicile, and had two
children. In February,
1950,
the wife satisfied the magistrates’
court in England that her husband had deserted her, and obtained
orders under the Summary Jurisdiction (Separation and Main-
tenance) Acts,S that he should pay to her
23
per week
for
her own
maintenance and
15s.
per week for the maintenance of each of
their two children.
1
[1956]
3
W.L.R.
887.
*
Of Lord Merriman
P.
and Collingwood
J.
3
The Summary Jurisdiction (Married Women) Act, 1895,
s.
5,
as
amended,
in
respect of maintenance for the wife; the Married Women (Maintenance) Act,
1920,
8.
1,
as
amended, in respect of maintenance
for
the children.
Also reported in [1956]
3
All
E.R.
645.
168
164
TEE
MODERN
LAW REVIEW
VOL.
20
The husband owned a troupe of performing chimpanzees, and
in January,
1958,
he took them to America, together with his
mistress, then pregnant by him. Shortly after arriving in America
he invited his wife also to join the party, but in view of the
presence of this other woman she not unnaturally refused. He
exhibited his chimpanzees in New
York
and Las Vegas, Nevada,
and according to his own subsequent statements he then decided
to settle in Las Vegas because they found the climate, as he found
the rate of income tax, more favourable than their English
equivalents. Not having the necessary immigration papers
to
establish permanent residence in the United States, he went to
France, where he managed to obtain them, and
on
return to Las
Vegas in March,
1954,
he there acquired a house and grounds.
In
September,
1954,
the court
in
Las Vegas granted him a decree
of
divorce from his wife
on
the ground that they had not lived
together for three years. The necessary qualification for these
proceedings is residence in Nevada for
six
weeks, although he had
apparently been resident for a longer period. The only service
of
the proceedings was by advertisement
in
a Las Vegas newspaper,
so
that the wife in England knew nothing about the proceedings
until after the decree, and had
no
opportunity of being heard.
That the interests of the children were not represented calls
for
no
comment, as this would also have been the case in
England.
In
1956,
the husband came to England to exhibit his chimpanzees
at the London Palladium, whereupon his wife had a warrant issued
for
arrears
of
2260
10s.
under the maintenance order. These
arrears were paid by instalments, but
in
the meantime he applied
for the maintenance order to be discharged
on
the grounds that
he was divorced. The wife,
for
her part, applied for the amount
of
maintenance to be increased because of the improvement in his
financial circumstances. At the hearing of these applications the
magistrate held-
(1)
that the husband had, at the time of obtaining his divorce
in
Nevada, established by English law a domicile in that
state sufficient
to
give the court of Las Vegas jurisdiction
to dissolve his marriage. By English law this meant that
both his wife and children in England were domiciled in
Nevada;
(2)
that the wife had known nothing of the divorce proceedings
until after the decree had been pronounced;
(8)
but that since a decree of divorce in the English courts
does not automatically terminate a maintenance order
previously made in the magistrates’ courts,‘ the Nevada
divorce need not terminate the wife’s remedies in the English
magistrates’ courts, although some divorce decrees granted
4
Bragg
v.
Bragg
[1925]
P.
20.
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