Sinclair v Sinclair
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,Mr JUSTICE SCARMAN |
| Judgment Date | 27 July 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0727-3 |
| Docket Number | No. 8164 of 1966. |
| Court | Court of Appeal (Civil Division) |
| Date | 27 July 1967 |
And in the Matter of an Issue as to Jurisdiction
[1967] EWCA Civ J0727-3
Lord Justice Willmer
Lord Justice Russell and
Mr Justice Scarman
In The Supreme Court of Judicature
Court of Appeal
Civil Division
Appeal, from Order of Ormerod J. 27th January, 1967.
Mr SIMON GOLDBLATT (instructed by Messrs Lewis Cutner & Co.) appeared on behalf of the Wife.
Mr HAROLD S. LAW (instructed by Messrs M.A. Jacobs & Co.) appeared on behalf of the Husband.
LORD JUSTICE WILIMER: This is an appeal from a judgment given by Mr Justice Ormrod on the 27th January 1967 on an issue as to jurisdiction in matrimonial proceedings brought by a wife. By her petition, which was presented on the 1st August 1966 the wife alleged that the parties were domiciled in England. She also alleged that they were resident in England at an address in Roohampton. The petition charged the husband with cruelty,adultery and desertion, and on those grounds prayed for a decree of dissolution, or alternatively for a judicial separation.
The desertion alleged arose out of an incident said to have taken place on the 24th March 1966, whereby the husband was alleged to have evinced an intention to drive the wife from the matrimonial home. It is common ground that the husband in fact left the matrimonial home some three days later, and that he was thereafter continuously in the United States of America until after the presentation of the petition.
The husband has always disputed the allegation that he is domiciled in England. He also disputed that he had any such residence in England as would be sufficient to confer jurisdiction to entertain proceedings for a judicial separation. In these circumstances an issue for determination, in which the husband was plaintiff and the wife was defendant, was formulated in the following terms: "That the defendant avers and the plaintiff denies that the plaintiff was domiciled or resident in England at the date of the alleged desertion and or of the filing of the petition here in".
The learned judge heard evidence from both spouses and came to the following conclusions. (1) That the husband was not domiciled in England. (2) That the husband was not resident in England on the 1st August 1966, the date of presentation of the petition. (3) That the husband's residence in England prior to the 24th March 1966 was not sufficient in law to confer jurisdiction to entertain this petition for judicial separation. Having so determined the issue, the learned judge accordingly dismissed the wife's petition.
There has been no appeal on the question of domicil. It is now accepted that the husband is not domiciled in England, and that accordingly it is not competent for the wife to obtain a decree of dissolution in those proceedings. The appeal has been directed solely to the issue with regard to the husband's residence. It is contended that the court still has jurisdiction, on the basis of the husband's residence, to entertain proceedings for judicial separation, and that the case should be allowed to proceed on that issue.
The wife has in fact boon resident in this country since the 12th June 1964, Before this judgment is delivered she will have completed three years of residence in this country, and pursuant to section 40, subsection (1) (b) of the Matrimonial Causes Act 1965, will be in a position to Institute proceedings for dissolution, to which the husband will have no answer so far as the question of jurisdiction is concerned. Why then, It may be asked, has it been thought right to prosecute this appeal, instead of instituting frosh proceedings, which will in any case have to be instituted at some time if the wife persists in her determination to proceed for a decree of dissolution? The answer seems to be that, if the present suit for judicial separation is allowed to continue, it may enable the wife to recover alimony pending suit for the period since the date of the learned judge's decision.
The facts have been fully set out in the judgment of the learned judge, and it is necessary for me to give only a brief summary of them. The husband is a man of Polish origin who came to this country in 1939 and resided here until 1947, becoming a naturalised British subject. On the 27th November 1945 he was married in England to the wife, who is an Englishwoman. There are two children of the marriage, both boys, born respectively on the 13th October 1956 and the 2nd September 1962. In 1947 the husband and wife emigrated to Canada and lived there until 1952. This was followed by two years residence in South America. In 1954 the parties moved to the United States of America and settled in the State of New Jersey. The husband is an engineer and has boon engaged during most of his life in the oil industry. This has involved him in a good deal of international travel. Up to 1960 he was travelling mostly in the Western Hemisphere, but since that date he has also had to travel a good deal in the Eastern Hemisphere.
Until 1964 the parties maintained a matrimonial home in New Jersey, and the husband used that as his base. Both the children of the marriage were in fact born in the United States of America. In 1964 the husband obtained a long term contract which was likelyto involve him in frequent visits to Iran. The wife being an Englishwoman was always anxious to return to this country. The husband therefore took the opportunity of the Iran contract to bring his family to England. The house in Now Jersey was sold, and since that date the family has lived in a series of houses in the London area which the husband took on short tenancies. From that time onwards the husband has used London as his base, and has resided there with his family during the intervals between his travels abroad. The older boy was sent to school in England, and during the year 1966 arrangements were in contemplation for the younger boy also to attend a school in England.
About October or November 1965 the Iranian project came to an abrupt end, and with it the reason for the husband continuing to reside in England. He then returned by himself to the United States of America for the purpose of exploring the possibilities of obtaining another contract of employment. He visited England for about a month at Christmas time in 1965, and again for a few days in March 1966, and on each occasion resided with his family at what was then the matrimonial home in the Roehampton area.
On the occasion of his visit in March 1966 the incident occurred which has led to the wife's charge of adultery. I need not pause to set out particulars of the incident alleged, but the wife's case as to the effect of the incident is set out in paragraph 20 of her petition in the following terms: "That by reason of the respondent's conduct as described above he evinced an intention to drive the petitioner from the matrimonial home and to bring cohabitation between the parties permanently to an end. The petitioner in fact withdrew from cohabitation with him following the occasion referred to in paragraph 19 hereof. Three days later the respondent left the matrimonial home for a business visit to the United States of America, and has not since returned there, but the petitioner has made it plain to him that she is not prepared to allow him so to return. In the premises the respondent has deserted the petitioner without cause". Following the incident of the 24th March 1966 the husband returned to the United States of America,and was not in this country again until after the presentation of the petition. But he continued to maintain his tenancy of the matrimonial home, and In addition he left a number of his belongings there, including clothes and a filing cabinet in which he kept some of his business papers. On the 5th September 1966, some five weeks after the presentation of the petition, he did in fact return to the matrimonial home, and sought to resume cohabitation. The wife, however, was not willing to receive him, and violent quarrels developed between the parties. Without going in any way into the merits of the dispute between the parties, it is sufficient to say that their relations were such that the wife succeeded in obtaining an order in those proceedings from the vacation judge requiring the husband to vacate the matrimonial home.
It is not in issue that pursuant to the practice of the old Ecclesiastical Courts (which was preserved by section 22 of the Matrimonial Causes Act 1857, and since 1925 by section 32 of the Judicature (Consolidation) Act of that year) Jurisdiction in respect of proceedings for judicial separation may be founded on the respondent's residence in this country. It is also, of course, well established that jurisdiction may equally be founded upon the domicil of the husband. It is not, however, now alleged that this husband was domiciled in England at the material time. What is said is that he was resident in England, and the wife's case of residence is put in two ways. First, it is alleged that the husband was resident in England at the date of the presentation of the petition, that is, the 1st August 1966. This contention raises a mixed question of fact and law. It is not suggested that the husband was physically present in England at the material date; but it is contended that, by maintaining a matrimonial home in which his wife and children resided, he was preserving a notional residence sufficient to confer jurisdiction on the court to entertain proceedings for a judicial separation. Secondly, and alternatively, it is alleged that the husband was resident in England on the 24th March 1966, which was the date when the events...
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