The Law and the Caravan
| Published date | 01 March 1965 |
| Author | Paul Jackson |
| Date | 01 March 1965 |
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb01060.x |
216
THE MODERN LAW REVIEW
VOL.
28
be involved by the making of the 0rder.O His lordship also thought
that the circumstances revealed that
it
was in the interests of the
child that the husband should partly,
if
not wholly, maintain him,
adding
‘‘
even if for the time being the order has
no
more than
moral force, it is well that his obligation to provide for
his
child
should be both publicly recognised by the courts of the country
where the child has his home and immediately enforceable in the
event of his coming to that country.”
lo
In
the circumstances
it
was held that the order was correctly made by the registrar and the
appeal was, rightly it
is
submitted, dismissed.ll
This decision poses a further problem: section
8
(1)
of the
Matrimonial Proceedings (Children) Act,
1958,
enables the court
to make an order for,
inter
ah,
maintenance even
if,
after the
trial has begun, the proceedings are dismissed. The question
is:
can the English court exercise this extended jurisdiction
if
the main
suit is dismissed not for failure by the petitioner to prove his case,
or
on
the merits
or
because of the presence
of
some absolute
or
discretionary bar, but because of want of jurisdiction?
It
is
submitted that jurisdiction to award ancillary relief must follow the
jurisdiction to award the main relief and that section
3
(1)
of the
1958
Act cannot be called in aid where there is
no
jurisdiction to
entertain the main suit. Any other solution would lead to a denial
of the fact that the relief sought was ancillary-indeed, one would
be equating the child’s maintenance with a claim by a husband
for
damages for adultery against a co-respondent, which, it is well
established, is
not
necessarily ancillary to his divorce suit.12
P.
R.
H.
WEBB.
THE LAW
AND
THE
CARAVAN
THE
caravan,
‘6
shining with newness, painted a canary yellow
picked out with green, and
red
wheels
’)
was once perhaps
no
more
than the romantic’s dream of escape from reality. Now
for
many
people
it
provides their only home; the industry which in
1938
9
[1964]
3
W.L.R.
791 at pp. 796797.
In
the
Tallack
case, since the property
sought to be settled was all
in
Holland,
any
order made
in
England with
respect to
it
would, besides being wholly ineffectual, “also have worn the
appearance of an infringement of the authority of the Dutch courts who had
exclusive jurisdiction over the subject-matter of the proposed order,” as Cairns
J.
said at
D.
796.
10
Ibid.
at p. -797.
11
Ibid.
at p.
797,
his lordship added
obiter
that
it
was possible for a party
so
to
conduct his side of the suit that the court mieht infer that an interlocutorv
order for ancillary relief would not be wholly-ineffectual and that,
in
suc6
circumstances, that party’s
“
submiseion to the jurisdiction
“
might take its
place, not
as
a
fact going to the court’s jurisdiction, but as one
of
the facts
to be considered by the court in determining whether
or
not to make an
order
in
the exercise of its discretion. He declined to say that the husband
had submitted to the jurisdiction
in
the present caee.
12
See
s.
30
(1)
of the 1950 Act together with
Jacobs
v.
Jacobs
and
Ceen
[1960]
P.
146.
1
The
Wind in
the
Willows,
Chap.
9.
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