Recognition of Foreign Divorce Decrees

Publication Date01 May 1968
AuthorP. M. North
DOIhttp://doi.org/10.1111/j.1468-2230.1968.tb01187.x
RECOGNITION
OF
FOREIGN DIVOltCE
DECREES
IT
is only about three years since the Court of Appeal defined the
grounds on which an English court could assume jurisdiction in
matrimonial proceedings in restrictive terms but now the House
of Lords in
Zndyka
v.
Indyka
has provided
a
far more expansionist
approach
to
the question of recognition of foreign decrees
or
orders,
though the decision may only be authority for the rules
as
to
recognition of foreign decrees of divorce and not for the recognition
rules in other matrimonial causes..y
So
many well-established principles and rules have been shaken
or
had doubts cast upon them by this decision that it is proposed
to examine, first, the facts and specific problem raised by
Zndyka
and then to examine the effects of the five differing judgments
of
the House of Lords on the law as to recognition of foreign decrees
and
orders
of divorce and of othcr matrimonial relief.
I.
INDYKA
v.
INDYKA:
THE
FACTS
AND
IMMEDIATE
If
one assumes that, following
Travers
v.
H~lley,~
an English
court will recognise a divorce decree of a foreign court granted
in factual circumstanccs where,
niutatis
mutandis,
an English
court would have had jurisdiction, then
it
has generally been
assumed that the material time at which the similarity between
their foreigii jurisdictional facts and the English rule as to jurisdic-
tion must exist is the time when the foreign divorce proceedings
are instituted. It
has
been suggested that a foreign divorce
obtained when, for example, section
40
(1)
of the Matrimonial
Causes
Act
1065
was not part of English domestic law would not
be rccognised, though the foreign court had exercised jurisdiction
in similar circumstances to those provided for by that section.
Such
was
the issue raised, apparently, in
Indyka.
Here
€I
mnrried
W1
in Czechoslovakia in
1038,
both being
Czech citizens.
H
left Czechoslovakia at the beginning of the
war
and, after war service in the Polish Army, eventually came to
England in
1046,
where he acquired a domicile of choice.
It
was
PROBLEM
AT
ISSUE
1
Gaithzoaite
v.
Garthwaite
[1964]
P.
956,
especially
per
Diplock
L.J.
at pp.
990-391;
and
Bee
Ross
Smith
V.
Ross
Smith
[1963]
A.C.
280.
though
see
now
Padolecchia
v.
Padolecchia
[1968]
2
W.L.R.
173.
a
[1967]
3
W.L.R.
610; [1967]
2
All
E.R.
680;
Bee
Latey
(1067) 16
I.C.L.Q.
982;
Webb
(1967) 16
I.C.L.Q.
997;
Lipstein
[1867]
C.L.J.
182;
Mann
(1068)
84
L.Q.R.
18.
3
See
Part
V,
infra.
[1953]
P.
246.
6
Dicey,
Conflict
of
Laws,
7th
ed.
(1958),
p.
922;
though see Dicey and
Morris,
Conpact
of
Laws,
8th
ed.
(1967),
p.
314
and
First
Supplement.
257
288
THE
MODERN
LAW
REVIEW
VOL.
81
decided that as
WI
refused to live with
H
she had deserted him,
In January
19%9
W1
obtained a divorce in Czechoslovakia on the
ground
of
‘‘
deep disruption of marital relations,” and though the
Czech court, acting on different evidence, took the view that
H
had deserted
W1,
there was
no
doubt that the decree was good
by Czech In
1959,
H
went through a ceremony of marriage
in England with
W2,
who petitioned for divorce in the present
English proceedings on the grounds of
H’s
cruelty.
H
alleged that
his marriage to
W2
was void for bigamy in that the Czech decree
dissolving his marriage to
W1
should not be recognised in England,
and
so
H
cross-petitioned for a decree of nullity.
The basic issue raised by the case is as to whether the English
court would recognise the Czech decree. There was no doubt that
the Czech court had jurisdiction in the Czech sense, but
it
was
not
wholly
clear
from
the judgments whether the Czech court had
exercised jurisdiction
on
the basis of nationality
r,or
on
the ground
that the petitioner was resident in Czechoslovakia.’ On what
jurisdictional basis, known to English domestic law, could the
Czech court have acted
in
granting
W1
a decree of divorce?
It
could clearly not have been domicile, in the English sense, because
II
and, therefore,
W1
were domiciled in England in
1949.
As
W1
was considered to have deserted
H
there was
no
jurisdictional
ground similar to that under section
40
(1)
(a)
of the Matrimonial
Causes Act.9
W1
had, however, been resident in Czechoslovakia
for at least three years preceding her petition and therefore appeared
to
fall within the English jurisdictional rule provided,
now,
by
the Matrimonial Causes Act
1965,
8.
40
(1)
(b),
and, at first sight,
on the applicntion of
Truvers
v.
Holley,
the Czech decree deserved
recognition. The problem with this jurisdictional basis was that
Wl’s
decree was granted and effective by February
1949,
whereas
English jurisdiction based on a wife’s three years’ residence was
not introduced until December
1949,
by the Law Reform (Miscel-
laneous Provisions) Act
1949,
s.
1.
Should an English court
recognise a foreign decree granted in circumstances which, at the
time of the later English proceedings, gave rise to jurisdiction
under English law but which did not do
so
at the date of the
foreign decree
?
0
[1967] 3
W.L.R.
610
at p.
629.
per
Lord Morris; but see Lipstein
[1967]
C.L.J.
42, 43.
7
Zbid.
at p. 529,
per
Lard Morris, p.
846,
per
Lord
Pearce,
and
p.
647,
per
Lord Wilberforce.
8
lbid.
at
p.
562,
per
Lord
Pearson;
but see Lord Reid at
p.
515,
who had
doubts
as
to
the basis
of
Czech jurisdiction.
9
Originally introduced by
8.
13
of
the Matrimonial Causes Act
1937.
It hsa
been
argued (Lipstein
[1967]
C.L.J
42,
43)
that if
the
English court had
examined the fac’s
on
which the Czech court assumed jurisdiction, then
H.
deserted
W1,
rather than vice verm, and
80
the foreign decree might have
been reco nised
on
the basis
of
Birni!nrity to
a.
40
(I)
(a),
on
the assumption
that
H.
fcserted
W1
before he lost
his
Czech domicile
of
origin. See
el60
counsel for the second wife,
arguendo:
[1967]
P.
233
at p.
246,
in the Court of
Appeal.

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