NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1945.tb02890.x |
| Published date | 01 March 1945 |
| Date | 01 March 1945 |
NOTES
OF
CASES
73
NOTES
OF CASES
Jurisdiction
in
Matrimonial
Causes
The
case
of
fZitt/ri,
v.
/€irttrr,
[19443
2
All
E.R.,
368,
has clarified to
a
great extent the
ratlic~
in\dvccl state
of
the law governing the question
of
jurisdiction in ndllity cast‘s. The facts in that case were similar
to
those
in
the
rcccwt
case
of
/
v.
Iktrrbrook,
[1944]
P.
10:
An
American
soldier sciught
a
tlccree
of
nullity
against
his
wife, an Englishwoman, on the
ground
of
her
refusal
to
consunimatc the marriage. Both parties were
resident
in
Ilngland at all m;iterial times. but it was admitted that the
husbaild
was
doinicilrd in the United States.
So
appearance
ws
entered
by
the respondent,
but
I’ilcher,
J..
caused
tlic
inpers
to
bc
for\vardcd
to
the King’s Proctor in order that he might
appt‘ar
anti
have the
nialter
fully
argued before him.
Thc
rcsult
of
a
careful consideration
of
the authorities concerned was
that the leal-ned judge followed the decision
of
Hodson,
J.,
in
Eastevbvook
v.
E‘nstr~br-ook,
and decided that the English Court
had
jurisdiction to enter-
tain the suit. His decision is
a
death blow to the theory that in cases
of
uullity proceedings the court
of
the domicil has exclusive jurisdiction.
It
would seem to establish that the jurisdiction
of
the Court
of
the place of
residence in nullity cases is
not
merely exceptional, but
that
residence
of
the
respondent
is
always sufficient
to
establish the jurisdiction
of
the English
Court in such cases. The decision is mainly based on Sect.
22
of
the
hlatrimonial Causes Act,
1857,
which is substantially still in force, and
which provides that in all matrimonial causes other than proceedings
for
dissolution
of
marriage the Court should act
on
the same principles
as
had
previously been applied by the Ecclesiastical Courts. The learned judge
ascertained that the Ecclesiastical
Courts
had always pronounced on the
question
of
nullity
of
marriage, provided the party against whom relief
was sought
was
resident within the jurisdiction, and that “provided the
residential qualification was fulfilled, the Ecclesiastical Courts did not
concern theinselves with questions
as
to the domicil
of
the parties.” The
learned judge rejected the distinction drawn
in
Invevclyde
v.
Inverclyde.
[rg31]
P.
rg,
between void arid voidable marriages, and pointed
out
that
the Ecclesiastical C,ourts had never dra\vn this distinction when deciding
on questions
of
jurisdiction. He held that “it is
now
established
by
a
long
line
of
authorities that in nullity suits when the marriage
is
void
ab
inilio
residence is sufficient to conler jurisdiction.”
Pilcher,
J.,
dispelled the doubts
as
to
the extension
of
this principle
which could still be 1-aised after the decision in
Bastevbrook
v.
Eastevbrook,
[1944!
1’.
10.l
The only point which was taken to be relevant was
the
question whether the party against whom relief was sought was resident
within the jurisdiction. The domicil of that party was held to be just
as
irrelevant as the dornicil
of
the petitioner, except in
so
far
as
it assisted the
learned judge in establishing that the respondent was in fact resident in
this country. Tnrther, it was held that the dictum of Lord Phillimore in
Salcesen
v.
Admiiiisfrnfar
of
Austrian Properf)*,
[I9271
A.C.
641.
at
p.
671,
xvhich has frequently been quoted in favour
of
the exclusive jurisdiction
of
the Tourt
of
the domicil in nullity cases, had not been necessary
to
the
de n,
and
the learned judge was nct satisfied that “in using
the
words
-
he did Lord Phillimore intended to lay down
a
general proposition
ee
my
note
in
60
L.Q.R.
I
15.
NOTES
OF
CASES
73
NOTES
OF
CASES
Jurisdiction
in
Matrimonial
Causes
The
case
of
Hiiflev
v.
Ifzittw,
[19441
z
All
E.R.,
368,
has clarified to
a
great estent
the
ratlirr
involved state of the law governing the question
of
jurisdiction in nrlllity cases. The facts in that case were similar
to
those
in
tlir rccrnt case
of
1:nsferbvook
v.
Easterbrook,
[rg44j
P.
10:
An American
soldier sought
a
dccrce of nullity against his wife, an Englishwoman, on the
ground
of
her refusal
to
consummate the marriage. Both parties were
resident
in
England
at
all material times, but
it
was admitted that the
husband was domiciled in the United States.
?lo
appearance was entered
by
the respondent, but Pilcher,
J.,
caused
the
papers
to be forwarded to the King’s Proctor in order that he might
appear and have the matter fully argued before him.
The
result
of
a
careful consideration
of
the authorities concerned
was
that the learned judge followed the decision
of
Hdson,
J.,
in
Easterbvook
v.
Enslevbrook,
and decided that the English Court had jurisdiction to enter-
tain the suit. His decision
is
a
death blow to the theory that in cases of
nullity proceedings the court of the domicil has exclusive jurisdiction.
It
would seem to establish that the jurisdiction of the Court
of
the place
of
residence in nullity cases is not merely exceptional, but that residence
of
the
respondent
is
always sufficient
to
establish the jurisdiction of the English
Court in such cases. The decision is mainly based on Sect.
22
of the
Matrimonial Causes Act,
1857,
which is substantially still in force, and
which provides that in all iliatrimonid causes other than proceedings
for
dissolution
of
marriage the Court should act on the same principles
as
had
previously been applied by the Ecclesiastical Courts. The learned judge
ascertained that the Ecclesiastical Courts had always pronounced on the
question
of
nullity
of
marriage, provided the party against whom relief
\vas
sought
was
resident within the jurisdiction, and that “provided the
residential qualification was fulfilled, the Ecclesiastical Courts did not
concern themselves with questions
as
to
the domicil
of
the parties.” The
learned judge rejected the distinction drawn in
Inverclyde
v.
Inverclyde.
[ICJ~X]
P.
29.
between void arid voidable marriages, and pointed out that
the Ecclesiastical Courts had never drawn this distinction when deciding
on questioiis
of
jurisdiction. He held that
“it
is
now ktabliihed by
a
long
line
of
authorities that in nullity suits when the marriage
is
void
ab
initio
residence is sufficient to confer jurisdiction.”
Pilcher.
J.,
dispelled the doubts as to the extension of this principle
which could still be raised after the decision in
Easterbrook
v.
Easlerbrook,
jr9.44:
P.
10.1
The only point which was taken
to
be
relevant was the
question whether the party against whom relief was sought was resident
within the jurisdiction. The domicil
of
that party was held to
be
just
as
irrelevant as the domicil of the petitioner, except in
so
far
as
it
assisted the
learned judge in establishing that the respondent was in fact resident in
this country. Further, it was held that the dictum
of
Lord Phillimore in
Salvesen
v.
Admtriastr.ahr
of
Austrian
Properly,
[I9271
A.C.
641.
at
p.
671,
which has frequently been quoted in favour
of
the exclusive jurisdiction
of
the Court
of
the domicil in nullity cases, had
hot
been necessary
to
the
decision, and the learned judge was not satisfied that “in using the words
which he did Lord Phillimore intended
to
lay down
a
general proposition
See my note in
60
L.Q.R.
r
15.
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