Ramsay-Fairfax (orse Scott-Gibson) v Ramsay-Fairfax
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE HODSON,LORD JUSTICE MORRIS |
| Judgment Date | 15 November 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J1115-3 |
| Date | 15 November 1955 |
| Court | Court of Appeal |
[1955] EWCA Civ J1115-3
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Denning
Lord Justice Hodson and
Lord Justice Morris
Mr R. J. A. TEAPLE, Q.C. and Mr H.S.Law (instructed by MR G.M. Voss, M.C.) appeared on behalf of the Appellant husband.
Mr. H.J. PHILLIMORE, Q.C. and Mr S.L. ELBORNE(Instructed by Messrs Lee, Ockerby, Johnson & Co.) appeared on behalf of the Respondent wife.
The parties in this case went through a form of marriage on the 22nd November, 1947 whilst husband was a Major in the Army and his wife was employed in Cairo, and they were married in Cairo by an Army Chaplain under the provisions of Section 22 of the Foreign Marriage Act of 1892. It can therefore be treated in all respects as if it was a marriage made in England.
In 1954, whilst the parties were both living in this country, the wife filed a Petition for nullity on the ground of incapacity or, alternatively, wilful refusal to consummate the marriage. The important thing to notice is that the domicile of the husband is in Scotland. It follows that, unless and until the marriage is annulled, the domicile of the wife is also in Scotland, because she takes the domicile of her husband. It is suggested that because the domicile of the parties is in Scotland the Courts of England have no jurisdiction to deal with this Petition. The husband has, we are told, started proceedings in Scotland for nullity on lake grounds, and wishes to proceed with his case there. The issue is whether the English Courts have jurisdiction. It is a matter of practical importance, because in England the wife, after a decree for nullity, can get maintenance, whereas in Scotland she cannot get anything.
The jurisdiction in cases of nullity is, in my judgment, entirely different from the jurisdiction in cases of divorce. In cases of divorce, ever since the case of ( Le Nesurier 1895 A.C., 517) in 1895, the only Courts which have had jurisdiction to decree a dissolution of a marriage are the Courts of the domicile but the jurisdiction of our Courts in nullity cases is different, dating from 1857, when, by section 22 of the Matrimonial Causes Act, 1857, it was said: "In all suits and proceedings, other than proceedings to dissolve any marriage, the said Court shall proceed and actand give relief on principles and rules which in the opinion of the said Court shall be as nearly as may be conformable to the principles and rules on which the Ecclesiastical Courts have heretofore acted and given relief". That section shows plainly that the jurisdiction in nullity suits depends on the principles and rules which were observed in the Ecclesiastical Courts before 1857. It is true that the grounds of nullity have since been extended, but nevertheless, in ay opinion, all suits for nullity, whether under the original grounds - for instance, for incapacity - or on the new grounds - for instance, for wilful refusal – are to be governed by the principles and rules which were observed in the old Ecclesiastical Courts.
It is quite clear that the Ecclesiastical Courts based their jurisdiction in cases of nullity on residence, not upon domicile. If the respondent, the defendant to a petition, was resident within the local jurisdiction of the Court, then the Court had jurisdiction to determine it. So here in this case. The husband and wife were, at the issuing of the Petition, both resident in this country, and that is sufficient to give the Court jurisdiction to decide the case. So much seems to me plain on the interpretation of the statutes. In addition, in the case of Baxter v. Baxter in the House of Lords in 1948 Lord Jowett (at page 285) said that Section 22 manifestly applied to suits for nullity on the ground of incapacity. It must also apply to suits on the new ground of wilful refusal.
That is a sufficient ground for the determination of this case, but, as there has been such difference of opinion upon this matter, I must say a word about the case of Inverclyde v. Inverclyde in 1931 Probate, 39. In that case Mr. Justice Bateson held that in a case of nullity on the ground of impotence the only Court which had jurisdiction was the Court of the domicile. The basis of his reasoning was that acase of nullity, whether for impotence or for wilful refusal, was such more like a suit for divorce than anything else, and that it should be equated, so to speak, with a suit for dissolution and be governed solely by the law of the domicile, and that the only Courts which should have jurisdiction should be the Courts of...
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Table of cases
...284 Ramsay v. Liverpool Royal Infirmary, [1930] A.C. 588 (H.L.) ............................ 16 Ramsay-Fairfax v. Ramsay-Fairfax, [1956] P. 115 (C.A.) ............................430, 431 Rastell v. Draper (1605), 80 E.R. 55 (K.B.) ................................................................
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...Fleming v. Fleming , [1934] O.R. 588 (H.C.J.). 14 Diachuk v. Diachuk (1941), 49 Man. R. 102 (K.B.). 15 Ramsay-Fairfax v. Ramsay-Fairfax , [1956] P. 115 (C.A.) [ Ramsay-Fairfax ]. 16 Above note 11 at 683–84. 17 Hutchings v. Hutchings (1930), 39 Man. R. 66 (C.A.); Manella v. Manella , [1942] ......