Ross Smith v Ross Smith
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER |
| Judgment Date | 20 December 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J1220-1 |
| Date | 20 December 1960 |
| Court | Court of Appeal |
[1960] EWCA Civ J1220-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod
Lord Justice Willmer and
Lord Justice Upjohn
MR J.B. LATEY, Q.C. and MR S.K.D. DE FERKARS (instructed by Messrs Gibson & Weldon, agents for Messrs Frederick Gowen & Stevens, Croydon) appeared as Counsel on behalf of the Appellant
MR F. LASKEY (instructed by Messrs Kenneth Brown, Baker, Baker) appeared as Counsel on behalf of the Respondent (Respondent)
First of all, I should like to say how sorry we are that Lord Justice Ormerod is unable to be with us today, but the Judgment I am about to read in this case is the Judgment of the Court.
The Appellant (who for convenience is referred to hereafter as the wife) seeks a decree of nullity against the Respondent husband on the ground of his incapacity, or, alternatively, his wilful refusal to consummate the marriage. The question which has arisen is whether the High Court has jurisdiction to entertain the suit, having regard to the fact that the husband is domiciled in Scotland and has not at any material time been resident in England. For the reasons given in De Reneville v. De Reneville, 1948 Probate, 100, the domicile of the wife must be regarded as the same as that as of the husband unless and until the marriage is annulled.
In 1927 it was decided by the House of Lords in Salvesen v. Austrian Property Administrator, 1927 Appeal Cases. 641, that the Court of the domicile has in all cases jurisdiction to pronounce a decree of nullity. But in that case Viscount Haldane observed, at page 654: "Whether there cannot be jurisdiction which is not that of the domicile in restricted instances to entertain a suit for nullity is a question we have not before us for determination". Commenting on this observation in De Reneville v. De Reneville, Lord Greene, Master of the Rolls, at page 109, said: "This doubtful question remains to be answered by the House of Lords, and there if; no need for us to attempt to answer it for the purposes of this appeal".
Since then it has been decided by this Court in Ramsay-Fairfax v. Ramsay-Fairfax, 1956 Probate, 115, that jurisdiction to pronounce a decree of nullity exists where the parties are resident, although not domiciled, in England, and that for this purpose no distinction is to be drawn between marriages which are void ab initio and those which are merely voidable. The further question which is now raised by the present appeal is whether jurisdiction exists, in a case where the parties are not domiciled, and te Respondent is not resident, in England, on the ground that the marriage was celebrated in England, the marriage in this case having taken place at Newcastle-on-Tyne on the 8th July, 1955.
The appeal is from the decision of Mr Justice Karminski, who held that he had no jurisdiction to entertain the suit. He reached this conclusion because he held himself bound by the decision of this Court in Casey v. Casey. 1949 Probate, 420, though it is to be remarked that in that case the petition was on the ground of wilful refusal only, and no question of incapacity arose. The learned Judge considered, but declined to follow, the decision in Hill v. Hill, 1960 Probate, 130, where Mr Justice Collingwood, distinguishing Casey v. Casey, held that he had jurisdiction to entertain a suit for nullity on the ground of incapacity where the marriage had been celebrated in England, notwithstanding that the parties were domiciled, and the respondent husband was resident, in Scotland. Mr Justice Karminski also considered, but held that he was not free to follow, the decision in Addison v. Addison, 1955 Northern Ireland Reports, 1, where Lord MacDermott, th Lord Chief Justice, in a case indistinguishable on its facts from the present case, after a full review of all the English authorities, including Casey v. Casey, decided that the Court of Northern Ireland did have jurisdiction to entertain the suit.
The decision in Casey v. Casey had not by any means been received with universal favour and approval by text-book writers and commentators. But, being a decision of this Court, it is clearly binding upon us, unless it can be shown that its ratio decidendi is so inconsistent with other authority by which we are bound that we are free to consider the matter afresh and decide which of the conflicting decisions we ought to follow. In considering Casey v. Casey, however, we are met by the difficulty that the members of this Court who heard that case did not speak with one voice. In that case, which arose out of a wife's petition for nullity on the ground of wilful refusal, the respondent husband was domiciled and ordinarily resident in one of the Provinces of Canada, and the question was whether the fact of the marriage having been celebrated in England was sufficient to confer jurisdiction. All the members of the Court agreed that it was not, but their reasons for this conclusion differed. Lord Justice Bucknill, with whose Judgment Lord Justice Cohen expressed his complete agreement, based his decision partly on the balance of hardship to the parties, but mainly on the analogy of the rule that the Court of the domicile of the husband is the sole Court with jurisdiction to dissolve a valid marriage; and he thought it reasonable that a similar rule should be applied to a marriage which is merely voidable on the ground of wilful refusal to consummate it. The view of Lord Justice Somervell was that jurisdiction based on the place where the marriage was celebrated should be confined to cases where the validity of the ceremony itself was attacked. He said, at page 433, "the mere fact that the ceremony of marriage took place in a country does not seem to me a ground for founding jurisdiction in cases where the matters alleged in the petition do not in any way dispute the validity of the ceremony as effecting a marriage".
In expressing the view of the majority, Lord Justice Bucknill was following and adopting the same reasoning as was followed by Mr Justice Bateson in Inverclyde v. Inverclyde, 1931 Probate, 29, namely, that so far as jurisdiction is concerned there is no distinction in principle between a petition to dissolve a valid marriage and a petition to annul a marriage which is merely voidable whether for incapacity or wilful refusal. The argument for the Appellant in the present case is that this line of reasoning has now been expressly disapproved in Ramsay-Fairfax v. Ramsay-Fairfax, where this Court not only overruled Inverclyde v. Inverclyde, but held, approving the decision of Mr Justice Pilcher in Hutter v. Hutter, 1944 Probate, 95, that for the purposes of founding jurisdiction in nullity proceedings no distinction is to be drawn between marriages which are void ab initio and those which are merely voidable. It follows, so it is contended, that the main ground on which the majority in Casey y. Casey based their decision is in conflict with the express decision of this Court in Ramsay-Fairfax v. Ramsay-Fairfax. As to the minority view expressed by Lord Justice Somervell — which is the view that Mr Justice Karminski was himself disposed to adopt in the present case — it is contended that this, being a minority view, is not binding upon us. It is, moreover, attacked as being unsupported by authority, unsound in principle, and impossible of application in practice. Counsel for the Appellant further relied, in support of his argument, on a dictum of Lord Justice Denning in Ramsay-Fairfax v. Ramsay-Fairfax, where he said, at page 134, "It may be in these nullity cases that the Courts of the domicile also have jurisdiction: so may the Courts of the place where the marriage was celebrated".
The question which has arisen for decision in this case is one with a long history behind it. The jurisdiction of the High Court in relation to nullity proceedings is derived from that exercised by the Ecclesiastical Courts before the passing of the Matrimonial Causes Act, 1857. In this respect it differs from the jurisdiction to dissolve marriages, which is wholly statutory. Section 22 of the 1857 Act provided: "In all suits and proceedings, other than proceedings to dissolve any marriage, the said Court" — that is to say, the new Court for Divorce and Matrimonial Causes — "shall proceed and act and 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". This section was repealed by the Judicature (Consolidation) Act, 1925, but its substance was re-enacted by section 32 of that Act, which provides: "Where no special provision is contained in this Act or in rules of Court with reference thereto, any such jurisdiction shall be exercised as nearly as may be in the same manner as that in which it might have been exercised by the Court to which it formerly appertained". It is true that additional grounds, unknown to the Ecclesiastical Courts, are now available by Statute for seeking a decree of nullity. But we do not think that this circumstance makes any difference from the point of view of jurisdiction: for, as was said by Lord Justice Morris in Ramsay-Fairfax v. Ramsay-Fairfax, at page 135: "those are merely additional grounds for the granting of a decree of nullity by the Court if the Court is endowed with a jurisdiction to grant a decree of nullity".
The Ecclesiastical Courts in practice assumed jurisdiction, in theory at least, only in cases where the party proceeded against was resident within the particular diocese, their powers in this respect being restricted by the Ecclesiastical Jurisdiction Act, 1531, 23 Henry VIII, Chapter 9. No case has been cited to us in which any Ecclesiastical Court...
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