Ross Smith v Ross Smith
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Cohen,Lord Morris of Borth-y-Gest,Lord Hodson,Lord Guest |
| Judgment Date | 18 January 1962 |
| Judgment citation (vLex) | [1962] UKHL J0118-1 |
| Date | 18 January 1962 |
| Court | House of Lords |
[1962] UKHL J0118-1
Lord Reid
Lord Morton of Henryton
Lord Cohen
Lord Morris of Borth-y-Gest
Lord Hodson
Lord Guest
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Ross Smith against Ross Smith (A.P.), that the Committee had heard Counsel, as well on Tuesday the 17th, as on Wednesday the 18th, Thursday the 19th, Monday the 23d, Tuesday the 24th and Wednesday the 25th, days of October last, upon the Petition and Appeal of Jack Ross Smith, care of Kuwait Oil Company Limited, 18, 12th Avenue, Ahmadi 3, Kuwait, Persian Gulf, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 20th of December 1960, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Peggy May Ross Smith, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 20th day of December 1960, complained of in the said Appeal, be, and the same is hereby, Discharged, and that the Order of the Honourable Mr. Justice Karminski, of the 24th day of June 1960, thereby set aside, be, and the same is hereby, Restored: And it is further Ordered, That the Costs incurred by the said Respondent in respect of the said Appeal to this House, be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act, 1949, as amended by the Legal Aid Act, 1960, the amount of such Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Probate, Divorce and Admiralty Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
A few minutes ago I received the grievous information that Lord Merriman had died this morning.
This is not a suitable occasion on which to pay tribute to his manifold services to the law or to his personal character, but I cannot forbear saying just a few words about his association with us in this House.
On many occasions he has been asked and has willingly accepted the task of working with us in cases in which he has been able to contribute a great deal of the highest value to our consultations, and it is with a sense of personal loss and of loss to us in our professional capacity in this House that I would like to express our deep regret and sympathy at his untimely passing.
The question in this case is whether the English Court has jurisdiction to deal with a petition of the Respondent, the wife, against the Appellant for the annulment of their marriage on the ground of non-consumation owing to impotence or wilful refusal on the part of the Appellant. The Appellant is domiciled in Scotland and resident in the Middle East and his only connection with England is that he resided in Newcastle on Tyne for a time while working there and during that time he was married to the Respondent there on 8th July, 1955. The wife resides in England, but the question of jurisdiction in this case depends solely on whether the fact that the marriage was celebrated in England is in itself sufficient to confer jurisdiction on the English Courts. Karminski, J. held that it was not, but his decision was reversed by the Court of Appeal.
In Simonin v. Mallac (1860) 2 Sw. & Tr. 67 it was held for the first time that, by reason of the marriage having been celebrated in England, an English Court had jurisdiction to entertain a petition for annulment of the marriage although the Respondent was neither resident nor domiciled in England. In that case the allegation was that the marriage was void ab initio, but in the present case the allegation is that the marriage is voidable. The decision in Simonin's case has been followed in many cases both in England and in other jurisdictions within the Commonwealth, but in all the earlier cases the marriage was alleged to be void and not merely voidable. Karminski, J. decided this case on the ground that there is a distinction between void and voidable marriages in the matter of jurisdiction, but his decision was reversed by the Court of Appeal on the ground that there is no such distinction. Counsel for the Appellant maintained that on this Karminski, J. was right, but he also submitted a more far-reaching argument to the effect that Simonin's case was wrongly decided and that there is no jurisdiction at all to annul a marriage based on the place of its celebration, whether the allegation is that it is void or that it is voidable. Accordingly it appears to me that the first question to be considered in this case is whether Simonin v. Mallac was or was not rightly decided. That case has stood for a century, but that is not in itself sufficient, in my view, to require that your Lordships should hold that it must now be followed. I shall have to deal further with this matter later, but it is proper to say at once that before holding that the decision should be overruled I must be convinced not only that the ratio decidendi is wrong, but that there is no other possible ground on which the decision can be supported. Accordingly I propose first to deal with the reasons which were given for the decision and then to consider whether there is any other ground on which the decision can be supported.
In 1854 the parties, Valérie Simonin and Leon Mallac, were both French subjects over twenty-one years of age domiciled in France and resident in Paris. They wished to marry but were unable to obtain the consents required by the Code Napoléon. So they came to England and were married in London on 21st June, 1854. They immediately returned to France but never co-habited and a plan to regularise the marriage by French law miscarried. The wife then raised an action in Paris for annulment of the marriage. The husband, though duly summoned, did not appear, and the French Court on 1st December, 1854, declared the marriage null and of no effect. It was not disputed that this judgment validly annulled the marriage according to the law of France, the parties' domicile.
In 1857 the wife came to reside in England and she may have acquired an English domicile. On 23rd December, 1858, she brought a petition in the English Court for a decree of nullity of her English marriage. The argument which prevailed in this House in Salvesen or von Lorang v. Administrator of Austrian Property [1927] A.C. 641 did not occur to anyone, and it was not argued by Dr. Phillimore, Q.C., on her behalf that the English Court was bound by the decision of the Court of the parties' domicile. In the end the petition was dismissed, and the Judge Ordinary, Sir C. Cresswell, giving the judgment of the Court, which also included Channell, B. and Keating, J., said:
"It may be unfortunate for the petitioner that she should be held a wife in England and not so in France. If she had remained in her own country, she might have enjoyed there the freedom conferred upon her by a French tribunal; having elected England as her residence, she must be contented to take English law as she finds it, and to be treated as bound by the contract which she there made." (pp. 85, 86).
But before dealing with the merits the Court had to decide that they had jurisdiction. Dr. Phillimore argued that they had, and there was no argument to the contrary because there was no appearance for the husband on whom there had been personal service in Naples. The argument as reported was based on the contract having been entered into in England, the petitioner being now domiciled in this country, and the injustice of leaving her status to be determined on an indictment for bigamy or a question of legitimacy. Admitting that the lex loci contractus generally governs the validity of contracts, he founded on the parties' incapacity under the law of their domicile. Sir C. Cresswell did not proceed on England being now the petitioner's domicile, for "that objection begs the main question in dispute, for if the marriage be valid it is not her domicil". (74).
In dealing with the question of jurisdiction Sir C. Cresswell (at p. 75) first pointed out that section 42 of the Matrimonial Causes Act, 1857, removed all objection on the ground of the citation having been served abroad, "but in our opinion would not of itself suffice to give to the Court authority to decide upon the rights of a party not otherwise subject to its jurisdiction." Then follows what I think is the crucial sentence in the judgment: "This question" (that is, jurisdiction) "therefore depends upon the first proposition, that the parties, by professing to enter into a contract in England, mutually gave to each other the right to have the force and effect of that contract determined by an English tribunal." For that he cited as authority Huber and other civilians; and he referred to section 19 of the Common Law Procedure Act, 1852, "which allows a writ of summons to be issued against a person residing out of the jurisdiction" as appearing to have been founded on this principle. Then he continued:
"There is nothing contrary to natural justice in calling upon him to have the validity or invalidity of a supposed contract ascertained and determined by the tribunal of the country where it was entered into by him; for, according to Lord Stowell, in Dalrymple v. Dalrymple, 2 Hag. Con. 61, it is an indisputable rule of law, as exercised in all civilised...
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