Recent Developments In Nullity Jurisdiction
| Date | 01 November 1957 |
| Published date | 01 November 1957 |
| DOI | http://doi.org/10.1111/j.1468-2230.1957.tb02719.x |
| Author | J. K. Grodecki |
RECENT DEVELOPMENTS IN NULLITY
JURISDICTION
THE
decision of the Court of Appeal in
Ramsay-Fairfax
v.
Ramsay-
Fairfm
and the Report of the Royal Commission
on
Marriage and
Divorce appear to call for a re-examination
of
the vexed question
of jurisdiction in nullity
in
the conflict of laws. The present article
is not intended as a commentary
on
the Report and the Draft Code
(Jurisdiction and Recognition
”)
appended to
it;
its object is rather
to consider some of the main proposals
in
relation to the problem
as a whole.
DISTINCTION BETWEEN
VOID
AND
VOIDABLE
MARRIAGES
The Code proceeds
on
the assumption that
a
distinction must be
made between void and voidable marriages for the purpose
of
defining jurisdiction. This distinction was not drawn by the
ecclesiastical courts the competence of which was in all cases deter-
mined by the residence of the respondent.4
It
was the judgment
of Bateson
J.
in
Inverclyde
v.
Inverclyde
which first imported it
into the field of private international law. The learned judge
thought that the difference between suits for the annulment of a
voidable
(as
opposed to a void) marriage and suits for the dissolu-
tion
of
a valid marriage was merely one of form and that
in
both jurisdiction should be confined to the court
of
the domicile.
This reasoning was rejected in two undefended cases decided in
1944,
Easterbrook
v.
Easterbrook
and
Hutter
v.
Hutter,l
and in
1956
in the most recent decision of the Court of Appeal
on
the
subject,
Ramsay-Fairfm.8
In all of them the facts were similar;
the residence of the parties was
in
England though their domicile
was abroad, and the marriages were challenged
on
the ground of
wilful refusal to consummate. The similarity between voidable
marriages and those open to dissolution is especially close
in
the
case of wilful refusal, and yet
in
all of these decisions the court
assumed jurisdiction
on
the basis of residence, refusing to draw any
1
[1956]
P.
115.
a
Cmd.
9678 (1956).
s
Appendix
N.
Hereinafter referred
to
a8
“Report.”
Hereinafter referred to a8 “Code.”
It
should be noted that
whilst the
Report
and the Code apply
to
both England and Scotland, this
paper
is
written with reference to England done.
For
a general account of
the Report, see
W.
Latey,
(1956) 5
I.C.L.Q.
499.
4
Infra,
p.
577.
6
[1931]
P.
29.
6
[1944]
P.
10.
7
[1944]
P.
95.
8
Supra,
n.
1,
affirming Willmer
J.
[1955]
3
W.L.R.
188; [1956]
P.
115.
566
Nov.
1967
RECENT
DEVFLOPMENTS
IN NULLITY JURISDICTION
567
distinction between void and voidable
marriage^.^
In
Ramsay-
Fairjax
Denning
L.
J.
observed
:
“
However valid this distinction
may be for some purposes, it is not valid for our present pur-
poses.”
lo
He was further
‘‘
clearly of opinion
”
that
Easterbrook
and
Hutter
were rightly decided and that
Inverclyde
should be
overruled.” But the ghost
of
Inverclyde
was not yet laid. A bare
few months after the Court
of
Appeal’s decision the Royal Com-
mission published its Report, which once again reverted to the
reasoning of Bateson
J.
The development of the law in this field shows a disconcerting
instability. The present chance
for
a statutory restatement in
an
intelligible form must, therefore, not be missed. What is somewhat
surprising is that whilst the Royal Commission recommended that
wilful refusal should be made
a
ground of divorce and not
of
nullity (and few
will
quarrel with the merit of this proposal12),
it
still found it necessary, notwithstanding the decision of
the
court
in
Ramsay-Fairfax,
to maintain the distinction between
void and voidable marriages for the purpose of defining juris-
diction.
It
must be urged that the proposed retention of the
distinction is unfortunate. The Report is not very informa-
tive as
to
the reasons which led the Commission to its decision;
these have
to
be extracted from the following two passages:
“In its effect
on
the personal status of the spouses the annul-
ment of a voidable marriage has the same effect as the dissolution
of a valid marriage.
It
follows, in our opinion, that the jurisdiction
of the court in respect of proceedings
to
annul
a
voidable marriage
should be governed as far as possible by rules similar
to
those which
regulate the divorce jurisdiction
of
the court.”
l3
“It
is well established that any member of the public in his
dealings with the parties to a void marriage may rely upon its
nullity without the necessity of a judicial decree.”
l4
9
10
11
ia
1s
14
It
should be noted that the
Court
of
Appeal in
De Renecille
v.
De Reneoille
[1948]
P.
100
approved of the importation of the distinction into private
international law but for such very different reasons
as
to constitute
an
entirely
new departure.
De Reneville,
just
as
Inaerclyde,
represents
a
sharp turning
on
the graph
of
this branch of the law. See
infra,
p.
574.
In
Casey
v.
Casey
[1949]
P.
420, however, the Court of Appeal reiterated its approval of the
distinction in words and for purposes which were much nearer to
Inoerclyde
than was the case in
De Reneoille.
Supra,
n.
1,
at p. 133. The distinction is not to be found in the Matrimonial
Causes Act, 1950.
Supra,
n.
1,
at
p.
134. Denning
L.J.
also added, at
p.
134:
“It
would be
very wrong
to
suggest
now
that these decisions were bad,
and
that people who
acted
on
them have been guilty of bigamy.” With respect,
it
is
a
little
difficult to imagine that
a
charge of bigamy would be preferred in such
circumstances against the parties themselves who have ‘Yarried
on
the strength
of
the decree,.,
As
to
others, they could have hardly regulated their affairs
on
the basis
(ibid.)
of
these cases without
a
decree, the marriage in question
bein voidable. And is
it
not wrong to tolerate
a
state of affairs
as
a
result
of
w%ich in other countries the persons involved in the English suit may be
prosecuted for bigamy
if
they subsequently marry?
But see
Ramsay-Fairfax, supra,
n.
1,
at
pp. 132-133,
per
Denning
L.J.
Report, para. 892.
Report, para.
882.
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