De Reneville v De Reneville
| Jurisdiction | England & Wales |
| Date | 1947 |
| Year | 1947 |
| Court | Court of Appeal |
Divorce - Nullity - Jurisdiction - English wife petitioner married in France to domiciled Frenchman - Impotence or wilful refusal of respondent - Void or voidable marriage - Residence of petitioner alone within the jurisdiction - Whether French or English law applicable.
An Englishwoman, who before her marriage to the respondent was resident and domiciled in England, married the respondent, a domiciled Frenchman, in Paris, and lived with him at various places in France and French possessions. After some years she left him and returned to England, and presented a petition for nullity on the ground of the incapacity or wilful refusal of the respondent, who appeared under protest and objected to the jurisdiction. The issue of jurisdiction was ordered to be tried separately. Jones J. held that there was no jurisdiction, and the petitioner appealed.
Held, (1.) The law applicable was French law, being that of the matrimonial domicile.
(2.) Only if the petitioner established impotence and French law treated impotence as rendering the marriage null and void in the sense that there never was a marriage, and it could be ignored by the parties and by any court without any decree of nullity, could the English court have jurisdiction, since in that case the petitioner would never have acquired the French domicile of the respondent.
(3.) In the absence of evidence to the contrary, French law must be presumed to be the same as English, and therefore the marriage, whether incapacity or wilful refusal were proved, was voidable not void, and remained valid until annulled by decree of a competent court.
(4.) Though the decree in a nullity suit was still in the form appropriate to an earlier state of the law and declared the marriage “null and void to all intents and purposes in the law whatsoever,” it could not be treated as retroactive, so as to give the petitioner, at the time of the institution of the suit, the domicile which the decree of nullity restored to her.
(5.) Though jurisdiction had been exercised in nullity suits where both parties were resident (as contrasted with domiciled) within the jurisdiction, that was no authority for the proposition that the residence of the petitioner alone would suffice.
(6.) In the circumstances, the petitioner, not having pleaded French law, ought not to be allowed a further opportunity of seeking to bring the case within para. (2.) above. The French courts formed a convenient tribunal, able to deal with all the alternative allegations, and there was no hardship in requiring the petitioner to seek her remedy there.
APPEAL from Jones J.F1.
The wife petitioner, Comtesse Mary Margaret Motley de Reneville was born in England of English parents, and was domiciled in England until her marriage. In 1935, she married the respondent, a domiciled Frenchman, in Paris, and lived with him there, at Brazzaville, in the French Congo, and at Biskra in Algeria. In 1940 the petitioner left the respondent, and returned to England, where she had since remained. She petitioned for nullity on the ground that the marriage had not been consummated owing to the incapacity or wilful refusal of the respondent. The respondent entered appearance under protest on the ground that the court had no jurisdiction to entertain the petition. An issue was directed to be tried between the respondent as plaintiff and the petitioner as defendant, to determine the question of jurisdiction. Jones J. held that there was no jurisdiction, and the petitioner appealed.
Karminski K.C. and Victor Russell for the petitioner. In a nullity suit brought by the wife it is sufficient that (1.) the petitioner is resident in England, and (2.) that at the institution of the suit she had a domicile in England, independently of her husband when he has a foreign domicile. The respondent is admittedly French and he only entered an appearance subject to protest. In a voidable marriage such as the marriage is claimed to be in this case, it is valid for certain purposes until it is decreed to be void. It is sufficient, however, that the petitioner is resident in England and has been since before the suit was started: Roberts v. BrennanF2; but in White v. WhiteF3 it was treated as necessary that the petitioner should be domiciled as well as resident in England. There is no difference in this respect between a void and voidable marriage. [They referred to Armytage v. ArmytageF4 and Le Mesurier v. Le MesurierF5.] The decision in Niboyet v. NiboyetF6 has been condemned as regards divorce proceedings but not in the case of a nullity suit.
[LORD GREENE M.R. The trouble is that the wife's intention as to domicile is immaterial. The change of domicile on marriage to a foreign husband happens whether she likes it or not.]
A wife's residence in England was not treated as sufficient in a suit for judicial separation in Graham v. GrahamF7. But in White v. WhiteF3 the crucial fact that the marriage was bigamous was assumed as giving the wife an English domicile ab initio although on a failure to establish it, the wife would not have been domiciled in this country. It is suggested that the same leap back in fixing the domicile of the wife should be made as regards a voidable marriage when a decree is being claimed for non-consummation owing to the husband's impotence. The marriages are void ab initio both in the case of a void and a voidable marriage as soon as decrees are obtained. In Mitford v. MitfordF8 Sir Henry Duke P. apparently took Roberts v. BrennanF2 to be correct, and followed it.
[LORD GREENE M.R. It seems to me that if the law applicable is that of France, one may have two positions:
(a) if the law of France is like that of Germany (which was in point in Mitford v. MitfordF8) and avoids the marriage altogether; then your client never had a French domicile, for there never was a marriage; (b) if it does not avoid the marriage, but merely makes it voidable, your client's domicile is French.]
It seems that before the court is in a position to investigate this problem it must get determined (1.) what is the position as to incapacity? (2.) What is the French law as to domicile?
[LORD GREENE M.R. The relevant law must, I think, be either the lex loci celebrationis or the lex domicilii. I should have thought the lex fori was immaterial except in the sense that foreign law is assumed, till the contrary is shown, to be the same as English.]
[SOMERVELL L.J. Suppose an Englishman marries abroad, say in Belgium, according to Belgian law, and subsequently returns here and acquires an English domicile. Can he rely on the provisions of our law as to nullity or dissolution?]
It is submitted that he has two strings — lex loci celebrationis or lex domicilii.
[The question was at this point discussed whether the court could properly decide the issue before it without first having the issue of fact as to capacity or wilful refusal determined, and also evidence as to the law of France in each case. Holroyd Pearce K.C. said that he had a written opinion — though it was not in evidence — from a French lawyer to the effect that wilful refusal would be an “injure grave” giving a right to dissolution, but that incapacity rendered the marriage void. After an adjournment to enable the court and counsel to consider the position, LORD GREENE M.R. announced that if the parties agreed, and in order to save the hardship which might result from a complete trial possibly resulting in a decision that there was no jurisdiction, the court was prepared to deliver judgment, after the completion of the argument, on the alternative basis that the marriage was (a) void (b) voidable. The petitioner would then be in a position, assuming they came to the conclusion that jurisdiction existed in one case, but not in the other, to consider whether she could establish the facts necessary, or should abandon further proceedings, while the learned judge, if the matter went back to him, would merely have to try the questions of fact, and apply the law as they would lay it down. Counsel on both sides agreeing, Karminski K.C. resumed his argument.]
Hutter v. HutterF9, Easterbrook v. EasterbrookF10, Srini Vasan v. Srini VasanF11 and Baindail v. BaindailF12 were cited. There was no authority that the courts of one country had exclusive jurisdiction, and he was not arguing that the jurisdiction of the English courts was exclusive. There might be concurrent jurisdiction in the courts of England and France.
[SOMERVELL L.J. I have not, so far, found any trace of a dictum that the courts of the petitioner's residence can assume jurisdiction in a voidable marriage where the place of celebration and the domicile and residence of the party cited are all foreign.]
[LORD GREENE M.R. Suppose wilful refusal does not affect capacity to contract marriage, but is regarded as something arising ex post facto is it a case of applying a lex? It seems to me a different judicial act to declare what the status is, and to determine whether it should continue.]
Wilful refusal necessarily arises after marriage and is quite different from incapacity. The principle applicable to a void marriage applies also to a voidable marriage, and the domicile made certain by the decree relates back in either case to the initiation of the suit. The petitioner must therefore be treated as having an English domicile from the beginning of the suit.
[SOMERVELL L.J. I can understand your saying that the wife is entitled to apply for a decree of nullity, although it is only when a decree is made that she acquires an English domicile.]
There is admittedly no authority on this point in the case of a voidable...
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