NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00585.x |
| Author | Alan Milner |
| Date | 01 March 1960 |
| Published date | 01 March 1960 |
NOTES
OF
CASES
NULLITY JURISDICTION
THERE is something to interest lawyers of several creeds in the
decision of Collingwood
J.
in
Hill
(orse. Petchey)
v.
Hi1l.l
Those
who delight in a rigid theory of precedent will have their appetites
stimulated by the sight of a High Court judge confessing inability
to escape the binding force of a decision
of
the Court of Appeal;
linguistic philosophers will be satiated by a hearty meal of verbal
distinctions; and the student of law and society will have his
digestion first upset by devious reasoning and finally settled by the
good sense of the ultimate result.
Mrs. Hill petitioned in England for a decree of nullity
on
the
ground of her husband’s impotence. They had been married in
Middlesex in
1950
but had separated in
1951.
Mrs. Hill had
obtained a separation and maintenance order and her husband had
returned to Scotland, where he was admittedly domiciled. Sporadic
reconciliation attempts failed and the wife finally petitioned
for
annulment in
1958.
These facts pose
a
number of interesting
questions. She could not petition for divorce on the ground
of
desertion, since, even if
a
case of desertion could have been proved,
three years had not
run
before the magistrates made the non-
cohabitation order in
1951.
Further, she could not have petitioned
in England for jurisdictional reasons. Mr. Hill was domiciled in
Scotland and
so
his wife could neither claim England as her country
of domicile nor invoke the jurisdiction of the English courts under
section
18
of
the Matrimonial Causes Act. She could presumably
have followed her husband to Scotland but even then she would
have been faced with the problem
of
inconvenience and expense.
As
it
was, therefore, she petitioned in England.
She was easily able to establish her husband’s incapacity
for
the purposes of her petition. Somewhat more of a problem was
whether the court could justify assuming jurisdiction over a lady
normally living in England but who had a husband living elsewhere
in the United Kingdom and who based her claim to the court’s
attention simply on the fact that she had been married here.
Collingwood
J.
in fact decided that he could hear the petition
because it had once been the practice of the ecclesiastical courts to
assume jurisdiction over marriages celebrated in England. The
reference to the ecclesiastical courts and the variety of authorities
on the significance
of
the
lea: loci celebrationis
for jurisdictional
purposes both call
for
comment.
1
[1969]
3
All
E.R.
764;
also
[1969]
3
W.L.R.
828.
184
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