Wood v Wood
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ORMEROD |
| Judgment Date | 13 March 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0313-2 |
| Date | 13 March 1957 |
| Court | Court of Appeal |
[1957] EWCA Civ J0313-2
In The Supreme Court of Judicature
Court of Appeal
the Master of the Rolls
(Lord Evershed)
Lord Justice Hodson and
Lord Justice Ormerod.
MR G. GRANVILLE SHARP, Q.C. and MR DAVID HENDERSON (instructed by MrJ. C. Clifford Watt's) appeared as Counsel for the Appellant.
MR C. L. HAWSER (instructed by Messrs. Tringhams) appeared as Counsel for the Respondent.
: On the 7th February 1950 the Appellant in this Court, Cynthia Wood (whom I will hereafter call 'tho wife') obtained against her husband, the Respondent Samuel Wood (to whom I shall refer as 'the husband') an order under the Summary Jurisdiction (Separation and Maintenance) Acts 1895 to 1925 from one of the Magistrates' Courts in London that the husband should pay to the Chief Clerk of the Court on the wife's behalf a weekly sum of 60/- and, in addition, a weekly sum of 15/- for the maintenance of each of the two children of the marriage (then aged nearly 4 and 2 respectively) until such child should attain the age of 16 years. The custody of the two children was thereby given to the wife subject to access for the husband to them at all reasonable times. This order was based upon the finding that the husband had, three months earlier, unlawfully deserted the wife. It will be noted that as regards the payments ordered to be paid for the wife's benefit the order was not conditional upon the continued subsistence of the marriage; nor was there any other limitation set upon the period of such payments.
The husband is an Englishman by birth and he was at the date of the Order domiciled in this country. He is a showman exercising his profession through the medium of a troupe of chimpanzees. At the beginning of the year 1953 he went with his animals to the U.S.A. and while in that country found his way in due course to Las Vegas, Nevada. It was suggested to the husband in the later proceedings in May and June 1953 before the North London Magistrate (out of which this appeal has arisen and to which I shall later return) that the husband's primary purpose in going to Las Vegas and returning there in the following year was in ordor to obtain a dissolution by the Courts of the State of Nevada of his marriage with the wife (having no cause to do so by the laws of this country) and, as a consequence, to disembarrass himself of all further liability towards his wife and their two children; or at loast towards the former. It is the fact that in September 1954 the husband obtained in Nevada a decree of divorce against his wife and that he thereafter ceased to make the payments ordered by the Magistrates Court in 1950, the arrears of which payments in June 1956 amounted to about £250. On the other hand the husband appears to have bought a house and land in Las Vegas and to have taken steps to obtain an immigratetion permit with a view to bocoraing in due course a citizen of the U.S.A. In the course of the reasons for his decision of June last given for the benefit of the Divisional Court, the view is expressed by the Worth London Magistrate that the husband may have been attracted to the State of Nevada by the circumstances that the rate of income-tax there was loss burdensome to him than the rate in England and that the Nevada climate bettor suited the dispositions of the chimpanzees – though it is not clear from the notes of evidence that these attractions were specifically put to the husband during the hearing, However that may be, the learned Magistrate found as a fact that the husband had before the divorce proceedings decided to settle in Novada and had acquirod in that State a domicilo of choice; and I agree with the Divisional Court that there was evidence upon which he could so find. It follows that, according to the law of England, the degree of divorce in Novada which I have so far but briefly mentioned was, if duly pronounced according to the local law, effective to determine the marriage between the husband and the wife.
The decree is dated the 29th September 1954 and recites that the Defendant (that is, the wife) had not appeared in person or by attorney though, "duly and regularly served…by publication" of a Summons in the suit "in the Las Vogas Review-Journal…pursuant to an Order of Court first had and obtained" Tho Ordor then proceeds: "the plaintiff introducing evidence in support of the allegations of his Complaint, and the Court being fully advised in the promisos, and finding that the plaintiff is now and for more than six weeks prior to the commoncomont of this action and over since has been an actual and bona fide rosident of the County of Clark, State of Nevada, and actually domicilod therein during all of said peried of time, and that this Court has jurisdiction over both of the parties here to and of this cause, and that all of the allegations containod in the plaintiff's Complaint are true and that plaintiff is ontitled to the relief prayed for in said Complaint, and Findings of Pact, Conclusions of Law, and written Notice of Entry of Judgment having been duly waived by the failure of the defendant to appear in this action….. It is ordered, adjudged and decreed that the bonds of matrimony horotoforo and now existing between the plaintiff, Samuel Wood, and the de, Cynthia Wood, be and the same are hereby dissolved and forever hold for naught, and the said parties hereby released from all the obligations theroof and restored to the status of single persons"
We have not before us any copy of the "Complaint" mentioned in the decree, but from the shorthand transcript of the few loading questions which were, at the hearing in Nevada, put to the husband by his attornoy and the answers thereto (which is before us) and from the husband's evidence in the North London Court last yoar, it is quite clear that the solo ground of the husband's "complaint" was the fact that there had been no co-habitation between the husband and the wife since October 1949, a period of time admittedly sufficient, according to the law of Nevada, to constitute a ground for dissolution of marriage.
It should perhaps be stated in fairness to both the husband and the wife, that in the year 1952 the husband had attempted by invocation of Section 7 of the Summary Jurisdiction (Married Women) Act 1895 – the section now invoked again in the present proceedings – to obtain a discharge of the Order of 1950 on the grounds that the wife had committed adultery or, alternatively, that the husband had put an end to his desertion by a genuine offor to resume cohabitation which the wife had unjustifiably refused. The charge of adultery was found not to have been established and the offer had the audacious characteristic that the wife was thoroby invited to rejoin the husband in the company not only of his ohimpanzoos but also of the woman vyith whom the husband was then living and who was prognant by him of a child, born in fact before the Nevada decree. In the circumstances it is not in doubt (and it has been concoded by Mr a Hawser on the husband's behalf) that the wife must be regarded for the purposes of the present proceding as having been at all times innocent of any matrimonial offence as understood by the law of England; and that the husband's desortion which was the foundation of the Order of 1950 was never detorrnined otherwise than by the making of the decree of the Nevada Court, No mention appears to have been made to the Nevada Court of the English Order of February 1950.
I have referred at a little length to the terms of the Neveda decree, for some of the argument before us has turned upon Novada decree, for some of the argument before us has turned upon the scope of its intended effect. The wife was in fact wholly unaware of the pondency of the husband's "complaint" to the Nevada Court and it is clear that he did not expect or indeed intend that she would have any knowledge, until after the event, of the suit that he was bringing. The suit was what is called in the American cases hereafter referred to an "ox parto suit" – that is, a suit in which there never was any submission in fact by the wife to the jurisdiction of the Nevada Court. But it has not been suggestod on the wife's behalf that there was any failure on the husband's part properly to comply with the formal requirements of Nevada law so that, having regard to the finding that at the relevant date the husband had acquired a domicilo of choice in Nevada, the decree of the 24th September 1954 was, by English law, at least effective to dissolve the marriage between the husband and the wife.
In this state of events the husband, being then in England upon a professional engagement at the Palladium in London, applied on the 18th May 1956 to the North London Magistrates' Court for an order that the Order of 1950 should be discharged "on the ground that he is now divorced". Five days later the wife applied to the same Court for an order increasing the sums payable by the husband for the maintenance of herself and the two childron on the ground that the husband's circumstances had since improved. The wife also sought to onforce payment by the husband of the arroars of maintonancc already mentionod; but nothing now turns upon this matter of the arrears. The applications for discharge and variation by increase of the 1950 Order were both made by reference to the terms of Section 7 of the Summary Jurisdiction (Married Womon) Act 1895, as amended, which, so far as relevant, roads as follows: "A court of summary jurisdiction may, on the application of the married woman or of her husband… and upon cause being shown to the satisfaction of the court at any time, alter, vary, or discharge any such order, and may upon any such application from time to timo increase or diminish the amount of any weekly payment ordered to be made, so that the amount do not in any caso...
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