Travers v Holley

This is an appeal from the decision of Mr Commissioner Grazebrook who granted a decre to a husband Petitioner who sought dissolution of his marriage on the ground of his wife's alleged adultery. The Respondent by her Answer admitted the marriage but alleged that that marriage was dissolved by the Court of New South Wales by a decree based on the husband's desertion which became absolute on the 13th November, 1944. She allege that atThe relevant time she was domiciled in New South Wales, the jurisdiction of that Court being based en her domicile. Subsequent to that decree she went through a ceremony of marriage with George Holloy in the State of Michigan, U.S.A. The adultery alleged is with the said George Holley after the ceremony and on the basis that she had obtained a valid decree there could, of course, be no adultery. The Petitioner challenged the validity of the divorce, and the Respondent by her rejoinder raised an issue of estoppel which, though argued before the Commissioner, was not argued before us.

The parties were married in 1937. At the time when they became engaged the Petitioner was a 2nd Lieutenant in the King's Own Scottish Borderers and was 20 years old. He resigned his commission in order to marry, and it is common ground that there were no prospects or apparent prospects in England which would enable him to earn money to support a wife. In November, 1937, they went to Sydney, in New South Wales, and the question is whether on that date or a few months after when the husband came of age they intended to make their permanent home there, so that by recognised principles they would have lost their domicile of origin, admittedly Engllsh, and acquired a domicile of choice in New South Wales, Australia. A child was born in August, 1938. Some time before the war the husband obtained employment in a business into which he put a certain amount of money, I think about £500. This business collapsed when war broke out, and in 1940 he left Sydney and moved north to Armidaile, which is also in New South Wales. Later he joined the Australian Forces, and subsequently, round about the time the Petition was served, obtained a transfer to the British Foroes. He was served with the proceedings in New South Wales, but did not defend, and on the 15th March, 1949, he himself went through a ceremony of marriage. Apparentlythat marriage was not satisfactory, and he now brings the present proceedings. The onus is, of course on the Respondent to establish that there was at the relative period a domicile in New South Wales and that the domicile of origin had been lost. It is, as I said, common ground that the decision to go to Australia was come to as the result of there being no future in England. They took everything with them, although in the circumstanes I do not think that much weight can be attached to that. The wife's evidence, however, seems to me clear, and it is that they both, as a result of these discussions, intended to settle in Australia and to make it their home, their permanent home, and there was no idea of experiment or trial to see what would happen.

The husband in his evidence before the learned Commissioner was very definite in the opposite sense. He said they decided to give it a trial, that there was no in tention to remain and no thought of making it their permanent home. The learned Commissioner, having considered the evidence on both sides, came to the conclusion that the wife failed, and he granted the decree. Both sides put in before us further letters, the wife put in two letters from the husband to the Trustees of a Settlement under which she was interested written in September, 1938, and July, 1939, and the husband put in a number of letters written to his mother after war had broken out. These letters have been discovered since the hearing. There is one sentence of the husband's letter of the 19th September, 1938, which I think has importance. He says: "We like Sydney as a place to live. We have a very nice flat on the water so that we get all the sea air that is going. The harbour is really wonderful, but I think that the unparalleled facilities for sailing and fishing are enough to keep us here for good, except for short visits home". It was suggested that this might marely be a way of saying that Sydney was a very nice place. I do not soconstrue it, having regard to the reference to short visits home at the end. It does, I think, throw doubt on the reliability of the husband a evidence before the learned Commissioner. It also supports the view that they did Intend, having no prospects here, to make sydney their permanent home. The later letters to his mother after war had broken out and he had loot his job indicate, I think, very clearly that his attitude to Australia had changed. Indeed he makes some very adverse comments. But the expressions used, I think, indicate a change as a result of what had happened since the war, and do not, at any rate in themselves, support his evidence as to his intentions in 1938.

I have come to the conclusion, therefore, that the wife's evidence, which received some support from her mother, should be accepted and there is at any rate nothing improbable in that the husband in the circumstances as deposed to by him had the intention which his wife attributed to him. It has been said that the onus is a heavy one, but in considering whether it has been discharged one must have regard to all the circumstances. If one finds, as here, that a man has decided that he has no future in England and proceeds to seek his fortune in a new country, this frequently, perhaps normally, though not necessarily, indicates an intention to settle permanently.

The second point arises in this way: section 16(a) of the New South wales Matrimonial Causes Act So. 14, 1899, provides as follows: "Any wife who at the time of the institution of the suit has been domiciled in New South Wales for three years and upwards (provided she did not resort to New South Wales for the purpose of such institution) may present a petition to the Court praying that her marriage may be dissolved on one or more of the grounds following (a) that her husband had without just cause orexcuse left her continuously so deserted during three years and upwards and no wife who was domiciled in New South Wales when the desertion commenced shall be deemed to have lost her domicile by reason only of her husband having thereafter acquired a foreign domicile". The relative date, therefore, for the purpose of that Court was the date when the desertion commenced, and that as alleged by the wife and found by the Court was in August, 1940. Apart, of course, from a special provision of this kind the relevant date under our law to consider the domicile is the date of the commencement of the proceedings. That would be in the present ease the 23rd. August, 1943. Hr Phillimore, for the husband, did not dispute that if a domicile in new South Wales had been acquired it would be necessary for a further change that there should be both the intention to change and a departure in fact from the territory. He also admitted on the facts that if the date of desertion was the relevant date, there had been on that date no departure from New South Wales. If this Court, therefore, was not prepared to recognise the section which I have cited as effectively making the date of desertion the material date, he wished to argue on the facts that before 1943 there had been an intention to abandon New South Wales and effective departure from it. If this point had arisen for argument it was clear that it would have been submitted upon the other side that the departure from Hew south Wales resulted from military duties and therefore did not avail on the issue in question. A express no opinion on those matters because it is unnecessary in my view to decide them.

Since 1937 our law has provided that in the case of a deserted wife the date of the desertion is the relevant date.Section 13 of the Matrimonial Causes Act, 1937, reads as follows: "Whore a wife has been deserted by her husband, or where her husband has been deported from the United Kingdomunder any law for the time being in force relating to the deportation of aliens, end the husband was immediately before the desertion or deportation domiciled in England and Wales, the court shall have jurisdiction for the purpose of any proceedings under Part VIII of the principal Act, notwithstanding that the husband has changed his domicile since the desertion or deportation". Although the wording is different the result for present purposes is the same as the provisions of the New South Wales Act.

On principle it seems to me plain that our Courts in this matter should recognise a jurisdiction which they themselves claim. I did not myself really understand on what grounds it was submitted that the result should be otherwise.

If it is necessary to refer to authority, there is a sentence in the Opinion in Le.Mesurier v. Le Mesurier, 1895. Appeal Cases, 517, at page 528. It is there sai: "A decree of divorce a vinculo pronounced by a Court whose jurisdiction is solely derived from some rule of municipal law peculiar to its forum, cannot, when it trenches upon the interests of any other country to whose tribunals the spouses were amenable, claim extra-territorial authority". Applying this principle the provisions of the New South Wales Act of 1899 are since...