Shaw v Shaw

JurisdictionEngland & Wales
Judgment Date09 February 1979
Date09 February 1979
CourtFamily Division
[FAMILY DIVISION] SHAW v. SHAW 1979 Feb. 9 Balcombe J.

Conflict of Laws - Sovereign immunity - Diplomatic immunity - Petition for divorce filed by wife of diplomat - Summons to strike out petition - Loss of immunity before summons heard - Whether petition to be struck out - Diplomatic Privileges Act 1964 (c. 81), Sch. 1, art. 31 (1)F1

The parties were married in the United States of America in 1960. The matrimonial home was established in London where the husband was a member of the United States Mission to the United Kingdom. In December 1978, the wife filed a petition for dissolution of the marriage and averred that both parties were habitually resident in England and Wales throughout the period of one year prior to the presentation of the petition. On January 12, 1979, the husband issued a summons to strike out the petition on the ground that he was immune from suit by reasons of the Diplomatic Privileges Act 1964. On January 25, the husband ceased to be a member of the diplomatic staff and returned to the United States of America. At the hearing of the summons on February 9 it was accepted on behalf of the husband that if the petition were struck out it was open to the wife to file a fresh petition to which no objection could be taken.

On the question whether the petition should be struck out: —

Held, dismissing the summons, that the court would not entertain the petition for divorce while the husband, as a diplomatic agent within the meaning of the Diplomatic Privileges Act 1964, was entitled to rely on his immunity from the court's civil jurisdiction provided by article 31 (1) of Schedule 1 to the Act, as a bar to the petition; that as the wife's petition was a valid petition at the date it was issued and since the husband had lost his diplomatic immunity before the summons was heard there was no bar to the divorce proceedings at the time of the hearing of the summons and, accordingly, the petition should be allowed to remain on the file.

Empson v. Smith [1966] 1 Q.B. 426, C.A. applied.

The following cases are referred to in the judgment:

Empson v. Smith [1966] 1 Q.B. 426; [1965] 3 W.L.R. 380; [1965] 2 All E.R. 881, C.A.

Musurus Bey v. Gadban [1894] 2 Q.B. 352, C.A.

Suarez, In re [1918] 1 Ch. 176, C.A.

The following additional cases were cited in argument:

Baccus S.R.L. v. Servicio Nacional del Trigo [1957] 1 Q.B. 438; [1956] 3 W.L.R. 948; [1956] 3 All E.R. 715, C.A.

C. (An Infant), In re [1959] Ch. 363; [1958] 3 W.L.R. 309; [1958] 2 All E.R. 656.

Dickinson v. Del Solar [1930] 1 K.B. 376.

Ghosh v. D'Rozario [1963] 1 Q.B. 106; [1962] 3 W.L.R. 405; [1962] 2 All E.R. 640, C.A.

Rahimtoola v. Nizam of Hyderabad [1958] A.C. 379; [1957] 3 W.L.R. 884; [1957] 3 All E.R. 441, H.L.(E.).

Reg. v. Madan [1961] 2 Q.B. 1; [1961] 2 W.L.R. 231; [1961] 1 All E.R. 588, C.C.A.

Zoernsch v. Waldock [1964] 1 W.L.R. 675; [1964] 2 All E.R. 256, C.A.

SUMMONS

The parties married on April 11, 1960, at Elkton in Cecil County in the State of Maryland, United States of America. On December 19, 1978, the wife presented a petition for dissolution of the marriage under section 1 (2) (a) of the Matrimonial Causes Act 1973 on the ground that the marriage had irretrievably broken down. In her petition the wife stated that neither party was domiciled in England and Wales and that she and the husband had been habitually resident in England and Wales throughout the period of one year ending with the date of the presentation of the petition. By summons dated January 12, 1979, the husband applied for an order that the petition be struck out or set aside or stayed or an order be made regarding the continuation of the petition on the ground that the husband was immune from the jurisdiction of the court by reason of the Diplomatic Privileges Act 1964. The summons was heard in open court.

The facts are stated in the judgment.

Alan Ward for the husband.

Eleanor Platt for the wife.

BALCOMBE J. I have before me a summons by a respondent husband that the petition be struck out or set aside or stayed, or that such order be made as regards the continuation of the petition as may be just, on the grounds that the husband is immune from the jurisdiction of the court by reason of the Diplomatic Privileges Act 1964.

This raises a short but by no means uninteresting, and to me at any rate novel, point of law which arises in these circumstances. On December 19, 1978, the wife presented a petition for divorce in the Divorce Registry. She avers that she and her husband were married in 1960 in the United States of America; that they have since lived in London; that neither party is domiciled in England and Wales, but that both have been habitually resident in England and Wales throughout the period of one year ending with the date of presentation of the petition. She then states her occupation, and states that the husband is a diplomat and civil servant.

He has put in evidence an affidavit, supported by a certificate from the Foreign Office, that he was at the date in question (January 18, 1979, when he swore the affidavit) the commercial attache at the United States Embassy, and as such a member of the diplomatic staff of the United States Mission in this country; and that was the ground upon which he claimed the relief in the summons which I have already mentioned.

However, since the date of the summons and, indeed, since the date of that affidavit, the husband has ceased to be the commercial attache at the United States Embassy. His appointment in that capacity has ended with effect from January 25, 1979, and I am told that he has now returned to the United States of America. And it is in...

To continue reading

Request your trial
3 cases
  • Fuller v The Attorney General
    • Jamaica
    • Court of Appeal (Jamaica)
    • 16 October 1998
    ...3 WIR 498, Maharaj v. Attorney General of Trinidad and Tobago [1971] 2 All ER 670, Attorney-General of St. Christopher v. Reynolds [1979] 3 All E.R.1 31, Ncube v. The State [1988] LRC (Const.) 442 and State v. Henry Williams CCT 20/94 dated 9/6/95 (S. Africa). 219 Miss Cummings submitted in......
  • White v Minnis and Another
    • United Kingdom
    • Chancery Division
    • 16 December 1999
  • De Andrade v De Andrade
    • Australia
    • Family Court (Australia)
    • 18 June 1984
    ...31, and the husband is therefore immune from the Court's jurisdiction.The same view was taken by Balcombe J, in Shaw v. ShawUNKINTL [1979] 3 All ER 1,[3] in which his Honour held that the wife could proceed on her petition once the husband ceased to be entitled to diplomatic immunity, but t......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT