Sowa v Sowa
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES |
| Judgment Date | 10 February 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0210-1 |
| Court | Court of Appeal |
| Date | 10 February 1961 |
[1961] EWCA Civ J0210-1
In The Supreme Court of Judicature
Court of Appeal
Revised
Lord Justice Holroyd Pearce
Lord Justice Harman and
Lord Justice Davies
Mr J. STANLEY WATSON, Q.C., and Mr WILLIAM G.O. MORGAN (instructed by Messrs Helder, Roberts & Co., Agents for Messrs John A. Behn, Twyford & Reece, Liverpool) appeared on behalf of the Appellant (Petitioner).
Mr ROBERT MONTGOMERY (instructed by Messrs Michael Kramer Co., Agents for Messrs I. Canter, Levin & Mannheim, Liverpool) appeared on behalf of the Respondent.
Lord Justin Holroyd Pearce: This is an appeal from the Divisional Court of the Probate Divorce & Admiralty Division. That court set aside a maintenance order made by the Liverpool Stipendiary Magistrate on the ground of the husband's desertion. It took the view that an appeal to this court was desirable owing to the general importance of the matter, and not because of any doubt that it felt.
The merits are entirely on the wife's side. The husband has behaved so badly that I fully share the regrets expressed by the Divisional Court at finding itself unable to uphold the Magistrate's order. One is inclined to echo the words of Chief Justice Crewe in the case of the Earldom of Oxford when he said that there was none but would "take hold of a twig or twine thread to uphold it". Unfortunately the point taken by the husband which goes to jurisdiction seems to me unassailable and I cannot but agree with the clear Judgment of the learned President, which is founded on a vast experience of such matters.
The wife and husband are inhabitants of Ghana, and are domiciled there. They went through a tribal customary ceremony of marriage which is potentially polygamous. The husband had promised the wife that he would go through a further ceremony of marriage which would by the laws of Ghana convert the potentially polygamous marriage into a monogamous or Christian marriage. He declined to carry out his promise. Therefore, although neither of the parties has in fact ever taken another spouse, and the husband admitted on oath in court that she was his wife, the only tie that binds them is a potentially polygamous marriage.
In ( Hyde v. Hyde 1 Probate and Divorce Cases at page 130) Lord Penzance held that such a marriage (in that case a Mormon marriage) although it was a valid marriage by the lex loci, and at the time the man and woman were single, would not be recognised by the English matrimonial court as a valid marriage in a suit instituted by one of the parties against the other for the purposes of enforcing matrimonial duties or obtaining relief for a breach of matrimonial obligations. He accepted that for various other purposes the courts might take a different view, and concluded in these words: "This court does not profess to decide upon the rights of succession or legitimacy which it might be proper to accord to the issue of the polygamous unions, nor upon the rights or obligations in relation to third persons which people living under the sanction of such unions may have created for themselves. All that is intended to be here decided is that as between each other they are not entitled to the remedies, the adjudication, or the relief of the matrimonial law of England".
The learned Judge Ordinary supported that conclusion by careful and sound reasoning. "The matrimonial law of this country", he said at page 135, "is adapted to the Christian marriage, and it is wholly Inapplicable to polygamy. The matrimonial law is correspondent to the rights and obligations which the contract of marriage has, by the common understanding of the parties, created". He deals with the various remedies and shows that they are inapplicable to polygamous marriage. "If then", he says, "the provisions adapted to our matrimonial system are not applicable to such a union as the present, is there any other to which the court can resort? We have in England no law framed on the scale of polygamy, or adjusted to its requirements". He rejects an argument which has been suggested in the present case also that the court would be justified in treating the first union as a Christian marriage, and all subsequent unions as void. He points to the startling inconsistencies that would flow from such a doctrine.
I find the reasoning of Hyde v. Hyde inescapable. It has been approved in this court in ( Baindall v. Baindall 1945 Probate Division, page 122): "For the purpose of enforcing the rights of marriage, or for the purpose of dissolving a marriage", said Lord Greene (Master of the Rolls) at page 125, "it has always been accepted as the case, following Lord Penzance's decision, that the courts of this country exercising jurisdiction in matrimonial affairs do not and cannot give effect to, or dissolve, marriages which are not monogamous marriages. The word 'marriage' in the Matrimonial Causes Act has to be construed for the purpose of ascertaining what the...
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