[COURT OF APPEAL]

VERVAEKE v. SMITH (MESSINA AND ATTORNEY-GENERAL INTERVENING)

1979 March 20, 21, 22; May 8

Husband and Wife - Nullity - Foreign decree, validity - Dismissal of nullity petition in England - Subsequent declaration of nullity by Belgian court - Whether Belgian decree to be recognized - Reciprocal Enforcement of Foreign Judgments (Belgium) Order in Council 1936 (S.R. & O. 1936 No. 1169), Sch. - Foreign Judgments (Reciprocal Enforcement) Act 1933 (23 & 24 Geo. 5, c. 13), s. 8 (1) (2)

Practice - Declaratory judgment - Discretion - Nullity decree obtained in Belgium - Declaration of recognition in England sought - Convention for reciprocal enforcement of judgments between England and Belgium - Whether court obliged to recognize judgment - Whether declaratory jurisdiction remaining discretionary - R.S.C., Ord. 15, r. 16

The petitioner, born in Belgium and with a domicile of origin there, married the respondent, a domiciled Englishman in 1954. The main purpose of the marriage was to enable the petitioner to acquire British nationality and a British passport so that she could carry on her trade of prostitute without fear of deportation. In 1970 the petitioner went through a ceremony of marriage in Italy with one Eugenio Messina, who died the same day leaving property of considerable value in England, to which the petitioner would have a claim only if her marriage to Messina was valid. In proceedings begun in 1970, the petitioner sought a declaration of nullity in respect of the 1954 marriage, on the ground that she had not effectively consented to it. Ormrod J. dismissed the petition (Messina v. Smith [1971] P. 322). In December 1971 the petitioner began proceedings in Belgium for a declaration that the 1954 marriage was void ab initio. The court granted the declaration on the ground that the 1954 marriage was merely a mock marriage, as the parties had had no intention of living together, and that judgment was affirmed on appeal.

In 1973 the petitioner filed a petition in England seeking a declaration under R.S.C., Ord. 15, r. 16 ¹ that the Belgian decree was entitled to be recognised m this country by virtue

1 R.S.C., Ord. 15, r. 16: "No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether or not any consequential relief is or could be claimed."

of section 8 of the Foreign Judgments (Reciprocal Enforcement) Act 1933 ² and article 3 (1) of the Convention between the United Kingdom and Belgium for the Reciprocal Enforcement of Judgments in Civil and Commercial Matters, dated May 2, 1934.³ A further petition ("the second petition") was later filed under section 45 of the Matrimonial Causes Act 1973. The second petition repeated the assertion that the Belgian decree was entitled to recognition in England, and on that basis prayed for a declaration that the marriage between the petitioner and Messina was valid.

Waterhouse J. held that he had jurisdiction under R.S.C. Ord. 15, r. 16 to make the declaration sought in the first petition, that he had a discretion in the exercise of that jurisdiction and that the discretion was not ousted by any obligation that might be imposed by article 3 (1) of the Convention of 1934 to recognize the Belgian decree. He declined to make the declaration on the ground, inter alia, that section 45 of the Act of 1973 provided a procedure for the remedy sought and laid down certain statutory safeguards, and it would not be right to enable the petitioner to invoke a less direct discretionary procedure unless there were good reasons for doing so. He accordingly dismissed the first petition. He held further, that since the petitioner's relevant cause of action, namely the absence of consent, was the same in England and Belgium, on the strict application of paragraph (d) of article 3 (1) of the Convention of 1934 and the rules of res judicata the Belgian decree was not entitled to be recognized and he dismissed the second petition.

On appeal by the petitioner: -

Held, dismissing the appeal, (1) that the jurisdiction to make declarations under R.S.C., Ord. 15, r. 16 was in general discretionary, and it remained so even if the court were obliged by the Convention of 1934 to recognize the Belgian decree, since the court would only give effect to that obligation through the medium, and according to the rules, of the process of law that existed for the purpose; and that it was a valid ground for exercising the discretion against making the declaration under R.S.C., Ord. 15, that by proceeding under section 45 of the Act of 1973 the court ensured submission to the

2 Foreign Judgments (Reciprocal Enforcement) Act 1933, s. 8: "(1) Subject to the provisions of this section, a judgment to which Part I of this Act applies or would have applied if a sum of money had been payable thereunder, whether it can be registered or not, and whether, if it can be registered, it is registered or not, shall be recognized in any court in the United Kingdom as conclusive between the parties thereto in all proceedings founded on the same cause of action... (2) This section shall not apply in the case of any judgment... (b) where the judgment has not been registered, it is shown... that if it had been registered the registration thereof would have been set aside on an application for that purpose..."

3 Convention between the United Kingdom and Belgium for the Reciprocal Enforcement of Judgment in Civil and Commercial Matters, art. 3 (1): "Judgments in civil and commercial matters. given by any superior court in the territory of one high contracting party... shall, in the courts of the territory of the other, be recognized in all cases where no objection to the judgment can be established on any of the grounds hereinafter enumerated, that is to say, unless: (a) In the case in question the jurisdiction of the original court is not recognized under the rules of private international law with regard to jurisdiction observed by the court applied to; ... (c) The judgment is one which is contrary to the public policy of the country of the court applied to; (d) The judgment is in respect of a cause of action which had already at the date when it was given, as between the same parties formed the subject of another judgment which is recognized under the law of the court applied to as final and conclusive; ..."

safeguards therein contained, and, accordingly, the judge had acted rightly in dismissing the first petition (post, pp. 121G - 122C,126G, 127D).

(2) That, where an issue fell to be determined on the basis of English law, there was no principle of common law that constrained an English court to recognize a foreign judgment deciding the issue by reference to foreign law, in preference to a contrary English High Court ruling on the same issue decided by English law; and therefore, the validity of the 1954 marriage being determinable by the application of English law, the Belgian decree would only be recognized if a statute or other instrument having statutory force so required (post, pp. 122E-G, 126G, 127C-D).

Sottomayer v. De Barros (1877) 2 P.D. 81, Sottomayer v. De Barros (No. 2) (1879) 5 P.D. 94 and Ogden v. Ogden (orse. Philip) [1908] P. 46, C.A. applied.

(3) That, assuming that article 3 of the Convention applied to matrimonial causes (Cumming-Bruce and Eveleigh L.JJ. dubitante), such recognition was not made obligatory by article 3 (1) of the Convention of 1934, since the cause of action in the Belgian court was the same as that in the earlier proceedings before Ormrod J., and, accordingly, the exception contained in article 3 (1) (d) excluded the operation of the Convention (post, pp. 124F-G, 125C-D, 127C-D).

(4) That, assuming that the Foreign Judgments (Reciprocal Enforcement) Act 1933 applied to matrimonial cases such as the present (Cumming-Bruce and Eveleigh L.JJ. dubitante) the Belgian decree would have been excluded from recognition under section 8 (1) by section 8 (2) (b) since, if the original judgment had been registered, it would have been set aside on an application for that purpose on the ground that the matter in dispute in the original court had previously been the subject of a final and conclusive judgment by a court having jurisdiction in the matter and as the matter in dispute in Belgium was the same as the matter previously decided by Ormrod J. the judgment was not entitled to recognition under section 8 (1) and accordingly the second petition had been rightly dismissed (post, pp. 125E-F, 126A-C, 127C-D).

Per Eveleigh and Cumming-Bruce L.JJ. It is doubtful whether the Act of 1933 or the Convention of 1934 apply to matrimonial cases such as this (post, p. 126G-H).

Per curiam (i) The exception in article 3 (1) (a) of the Convention does not apply because the Belgian court is to be recognized as a court of competent jurisdiction under the English rules of private international law for the purposes of declarations of nullity, since the petitioner had a real and substantial connection with Belgium when she started the proceedings in that country (post, p. 123F-H).

Law v. Gustin (formerly Law) [1976] Fam. 155 and Perrini v. Perrini [1979] Fam. 84 approved.

(ii) The exception in article 3 (1) (c) does not apply since it is not possible to reject recognition of a foreign decree on the ground of public policy merely because the person who obtained that decree has behaved with impropriety in relation to the subject matter of the decree; rather must any such ground of rejection be based upon the intrinsic character of the decree or of the foreign law as being offensive to some principle of policy favoured in this country, and although the impugning of the validity of a marriage on the ground that the parties consenting to it did not intend that it would

constitute any real marital relationship is a conception entirely foreign to English law, it is not so offensive to English notions of propriety as to justify the view that a foreign judgment based upon it must be refused recognition as contravening the public policy of this country (post, p. 124C-D).

Decision of Waterhouse J., post, p. 84, affirmed; [1981] 2 W.L.R. 901.

The following cases are referred to in the judgments of the Court of Appeal:

Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G. [1975] A.C. 591; [1975] 2 W.L.R. 513; [1975] 1 All E.R. 810, H.L.(E.).

Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853; [1966] 3 W.L.R. 125; [1966] 2 All E.R. 536, H.L.(E.).

Henderson v. Henderson (1843) 3 Hare 100.

Indyka v. Indyka [1969] 1 A.C. 33; [1967] 3 W.L.R. 510; [1967] 2 All E.R. 689, H.L.(E.).

Law v. Gustin (formerly Law) [1976] Fam. 155; [1975] 3 W.L.R. 843; [1976] 1 All E.R. 113.

Messina (formerly Smith orse. Vervaeke) v. Smith (Messina intervening) [1971] P. 322; [1971] 3 W.L.R. 118; [1971] 2 All E.R. 1046.

Ogden v. Ogden (orse. Philip) [1908] P. 46, C.A.

Perrini v. Perrini [1979] Fam. 84; [1979] 2 W.L.R. 472; [1979] 2 All E.R. 323.

Sottomayer v. De Barros (1877) 2 P.D. 81.

Sottomayer v. De Barros (No. 2) (1879) 5 P.D. 94.

The following additional cases were cited in argument in the Court of Appeal:

Aldrich v. Attorney-General (Rogers intervening) [1968] P. 281; [1968] 2 W.L.R. 413; [1968] 1 All E.R. 345.

Attorney-General v. Lamplough (1878) 3 Ex.D. 214, C.A.

Collett v. Collett [1968] P. 482; [1967] 3 W.L.R. 280; [1967] 2 All E.R. 426.

De Massa (orse. Horveno) v. De Massa [1939] 2 All E.R. 150n.

De Reneville v. De Reneville [1948] P. 100; [1948] 1 All E.R. 56, C.A.

Eneogwe v. Eneogwe (1976) 120 S.J. 300, C.A.

Fender v. St. John-Mildmay [1938] A.C. 1; [1937] 3 All E.R. 402, H.L.(E.).

Galene v. Galene [1939] P. 237; [1939] 2 All E.R. 148.

Gray (orse. Formosa) v. Formosa [1963] P. 259; [1962] 3 W.L.R. 1246; [1962] 3 All E.R. 419, C.A.

Hack v. Hack (1976) 6 Family Law 177.

Har-Shefi v. Har-Shefi [1953] P. 161; [1953] 2 W.L.R. 690; [1953] 1 All E.R. 783, C.A.

Har-Shefi v. Har-Shefi (No. 2) [1953] P. 220; [1953] 3 W.L.R. 200; [1953] 2 All E.R. 373.

Hayward v. Hayward (orse. Prestwood) [1961] P. 152; [1961] 2 W.L.R. 993; [1961] 1 All E.R. 236.

Hornett v. Hornett [1971] P. 255; [1971] 2 W.L.R. 181; [1971] 1 All E.R. 98.

Igra v. Igra [1951] P. 404.

Joyce v. Joyce and O'Hare [1979] Fam. 93; [1979] 2 W.L.R. 770; [1979] 2 All E.R. 156.

Kassim (orse. Widmann) v. Kassim (orse. Hassim) [1962] P. 224; [1962] 3 W.L.R. 865; [1962] 3 All E.R. 426.

Kenward v. kenward [1951] P. 124; [1950] 2 All E.R. 297, C.A.

Macartney, In re [1921] 1 Ch. 522.

Merker v. Merker [1963] P. 283; [1962] 3 W.L.R. 1389; [1962] 3 All E.R. 928.

New Brunswick Railway Co. v. British and French Trust Corporation Ltd. [1939] A.C.1; [1938] 4 All E.R. 747, H.L.(E.).

Orlandi v. Castelli, 1961 S.C. 113.

Porter v. Porter [1971] P. 282; [1971] 3 W.L.R. 73; [1971] 2 All E.R. 1037.

Puttick v. Attorney-General [1980] Fam. 1; [1979] 3 W.L.R. 542; [1979] 3 All E.R. 463.

Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260; [1959] 3 W.L.R. 346; [1959] 3 All E.R. 1, H.L.(E.).

Quazi v. Quazi [1980] A.C. 744; [1979] 3 W.L.R. 833; [1979] 3 All E.R. 897, H.L.(E.).

Rowe v. Rowe [1980] Fam. 47; [1979] 3 W.L.R. 101; [1979] 2 All E.R. 1123, C.A.

Shedden v. Patrick (1869) L.R. 1 Sc. & Div. 470, H.L.(Sc.).

Silver (orse. Kraft) v. Silver [1955] 1 W.L.R. 728; [1955] 2 All E.R. 614.

Thoday v. Thoday [1964] P. 181; [1964] 2 W.L.R. 371; [1964] 1 All E.R. 341, C.A.

Torok v. Torok [1973] 1 W.L.R. 1066; [1973] 3 All E.R. 101.

Travers v. Holley [1953] P. 246; [1953] 3 W.L.R. 507; [1953] 2 All E.R. 794, C.A.

Warren v. Warren [1962] 1 W.L.R. 1310; [1962] 3 All E.R. 1031.

The following cases are referred to in the judgment of Waterhouse J.:

Abate v. Abate (orse. Cauvin) [1961] P. 29; [1961] 2 W.L.R. 221; [1961] 1 All E.R. 569.

Adams v. Adams (Attorney-General intervening) [1971] P. 188; [1970] 3 W.L.R. 934; [1970] 3 All E.R. 572.

Aldrich v. Attorney-General (Rogers intervening) [1968] P. 281; [1968] 2 W.L.R. 413; [1968] 1 All E.R. 345.

Bright v. Bright [1954] P. 270; [1953] 3 W.L.R. 659; [1953] 2 All E.R. 939.

Capon, In re, Capon and O'Brien v. McLay (1965) 49 D.L.R. (2d) 675.

Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853; [1966] 3 W.L.R. 125; [1966] 2 All E.R. 536, H.L.(E.).

Collett v. Collett [1968] P. 482; [1967] 3 W.L.R. 280; [1967] 2 All E.R. 426.

Conradi v. Conradi (1868) L.R. 1 P. & D. 514.

De Reneville v. De Reneville [1948] P. 100; [1948] 1 All E.R. 56, C.A.

Eneogwe v. Eneogwe (1976) 120 S.J. 300, C.A.

Foster or Aldridge v. Aldridge, 1954 S.C. 58.

Fuld, decd., In the Estate of (No. 3) [1968] P. 675; [1966] 2 W.L.R. 717; [1965] 3 All E.R. 776.

Garthwaite v. Garthwaite [1964] P. 356; [1964] 2 W.L.R. 1108 [1964] 2 All E.R. 233, C.A.

Gray (orse. Formosa) v. Formosa [1963] P. 259; [1962] 3 W.L.R. 1246; [1962] 3 All E.R. 419, C.A.

Har-Shefi v. Har-Shefi [1953] P. 161; [1953] 2 W.L.R. 690; [1953] 1 All E.R. 783, C.A.

Hayward v. Hayward (orse. Prestwood) [1961] P. 152; [1961] 2 W.L.R. 993; [1961] 1 All E.R. 236.

Henderson v. Henderson (1843) 3 Hare 100.

Indyka v. Indyka [1969] 1 A.C. 33; [1967] 3 W.L.R. 510; [1967] 2 All E.R. 689, H.L.(E.).

Inland Revenue Commissioners v. Bullock [1976] 1 W.L.R. 1178; [1976] 3 W.L.R. 353, C.A.

Kassim (orse. Widmann) v. Kassim (orse. Hassim) [1962] P. 224; [1962] 3 W.L.R. 865; [1962] 3 All E.R. 426.

Law v. Gustin (formerly Law) [1976] Fam. 155; [1975] 3 W.L.R. 843; [1976] 1 All E.R. 113.

Leon v. Leon [1967] P. 275; [1966] 3 W.L.R. 1164; [1966] 3 All E.R. 820.

Lindsay v. Lindsay [1934] P. 162.

Magnier v. Magnier (1968) 112 S.J. 233.

Mansell v. Mansell [1967] P. 306; [1967] 3 W.L.R. 328; [1967] 2 All E.R. 391.

Merker v. Merker [1963] P. 283; [1962] 3 W.L.R. 1389; [1962] 3 All E.R. 928.

Messina (formerly Smith orse. Vervaeke) v. Smith (Messina intervening) [1971] P. 322; [1971] 3 W.L.R. 118; [1971] 2 All E.R. 1046.

Meyer, In re [1971] P. 298; [1971] 2 W.L.R. 401. [1971] 1 All E.R. 378.

Miles v. Chilton (1849) 1 Rob. Eccl. 684.

Orlandi v. Castelli, 1961 S.C. 113.

Pemberton v. Hughes [1899] 1 Ch. 781, C.A.

Perrini v. Perrini [1979] Fam. 84; [1979] 2 W.L.R. 472; [1979] 2 All E.R. 323.

Porter v. Porter [1971] P. 282; [1971] 3 W.L.R. 73; [1971] 2 All E.R. 1037.

Postnikoff v. Popoff (or Postnikoff) (1964) 46 D.L.R. (2d) 403.

Quazi v. Quazi [1980] A.C. 744; [1979] 3 W.L.R. 402; [1979] 3 All E.R. 424, C.A.

Qureshi v. Qureshi [1972] Fam. 173; [1971] 2 W.L.R. 518; [1971] 1 All E.R. 325.

Ramsay-Fairfax (orse. Scott-Gibson) v. Ramsay-Fairfax [1956] P. 115; [1955] 3 W.L.R. 849; [1955] 3 All E.R. 695, C.A.

Ross Smith (Orse. Radford) v. Ross Smith [1963] A.C. 280; [1962] 2 W.L.R. 388; [1962] 1 All E.R. 344, H.L.(E.).

Rowe v. Rowe [1980] Fam. 47; [1979] 3 W.L.R. 101; [1979] 2 All E.R. 1123, C.A.

Russ (ors. De Waele) v. Russ and Russ (orse Geffers) (No. 2) (1962) 106 S.J. 632.

Salvesen (or Von Lorang) v. Administrator of Austrian Property [1927] A.C. 641, H.L.(Sc.).

Sim v. Sim [1944] P. 87; [1944] 2 All E.R. 344.

Sinclair v. Sinclair [1968] P. 189; [1967] 2 W.L.R. 1487; [1967] 1 All E.R. 905, [1968] P. 189; [1967] 3 W.L.R. 1540; [1967] 3 All E.R. 882, C.A.

Sottomayer v. De Barros (No. 2) (1879) 5 P.D. 94.

Thompson v. Thompson [1957] P. 19; [1957] 2 W.L.R. 138; [1957] 1 All E.R. 161, C.A.

Torok v. Torok [1973] 1 W.L.R. 1066; [1973] 3 All E.R. 101.

Travers v. Holley [1953] P. 246; [1953] 3 W.L.R. 507; [1953] 2 All E.R. 794, C.A.

Varanand v. Varanand, The Times, July 25, 1964.

White (orse. Bennett) v. White [1937] P. 111; [1937] 1 All E.R. 708.

Wilkins v. Wilkins [1896] P. 108, C.A.

Winans v. Attorney-General [1904] A.C. 287, H.L.(E.).

Woodland v. Woodland (orse. Belin) [1928] P. 169.

The following additional cases were cited in argument before Waterhouse J.:

Apt (orse. Magnus) v. Apt [1948] P. 83; [1947] 2 All E.R. 677, C.A.

Chetti v. Chetti [1909] P. 67.

Fender v. St. John-Mildway [1938] A.C. 1; [1937] 3 All E.R. 402, H.L.(E.).

H. v. H. [1954] P. 258; [1953] 3 W.L.R. 849; [1953] 2 All E.R. 1229.

Kenward v. Kenward [1951] P. 124; [1950] 2 All E.R. 297, C.A.

Lee v. Lau [1967] P. 14; [1964] 3 W.L.R. 750; [1964] 2 All E.R. 248.

Lepre v. Lepre [1965] P. 52; [1963] 2 W.L.R. 735; [1963] 2 All E.R. 49.

Morgan v. Morgan (orse. Ransom) [1959] P. 92; [1959] 2 W.L.R. 487; [1959] 1 All E.R. 539.

Ogden v. Ogden (orse. Philip) [1908] P. 46, C.A.

Owen v. Owen [1964] P. 277; [1964] 2 W.L.R. 654; [1964] 2 All E.R. 58, D.C.

Padolecchia v. Padolecchia (orse. Leis) [1968] P. 314; [1968] 2 W.L.R. 173; [1967] 3 All E.R. 863.

Paine, In re [1940] Ch. 46.

Pugh (orse. Eperjesy) v. Pugh [1951] P. 482; [1951] 2 All E.R. 680.

Robinson-Scott v. Robinson-Scott [1958] P. 71; [1957] 3 W.L.R. 842; [1957] 3 All E.R. 473.

Shedden v. Patrick (1869) L.R. 1 Sc. & Div. 470, H.L.(Sc.).

Silver (orse. Kraft) v. Silver [1955] 1 W.L.R. 728; [1955] 2 All E.R. 614.

Szechter (orse. Karsov) v. Szechter [1971] P. 286; [1971] 2 W.L.R. 170; [1970] 3 All E.R. 905.

PETITION

On August 11, 1954, the petitioner, Marie Thérèse Rachelle Vervaeke, married the respondent, William George Smith, in London. On March 12, 1970, the petitioner went through a ceremony of marriage in San Remo, Italy, with Eugenio Messina, who died the same day. On June 23, 1970, Judge Forrest granted the petitioner a decree nisi of nullity in respect of the 1954 marriage, in a suit which was then undefended. Before the decree was made absolute, Salvatore Messina, a brother of Eugenio Messina, was given leave to intervene in the suit to show cause why the decree should not be made absolute. On May 7, 1971, Ormrod J. set aside the decree nisi and dismissed the petition: Messina v. Smith [1971] P. 322. On December 6, 1971, the petitioner began proceedings in the county court in Kortrijk, West Flanders (Salvatore Messina again intervening), praying for a declaration of nullity of the 1954 marriage. On June 9, 1972, that court gave judgment for the petitioner. Salvatore Messina's appeal was dismissed by the Court of Appeal in Ghent on April 27, 1973. On September 7, 1973, the petitioner filed a petition for a declaration that the decree of the Belgian court was entitled to recognition in this country. Salvatore Messina intervened and filed an answer praying that the petition be dismissed. On July 15, 1976, the

Court of Appeal of Genoa declared the validity within the Italian Republic of the judgment of the Court of Appeal of Ghent. After the death of Salvatore Messina, Attilio Messina was substituted as intervener in the September 1973 petition, with effect from August 30, 1977. The respondent died on August 2, 1978. In March 1979 the petitioner was given leave by Waterhouse J. to file a further petition, under section 45 of the Matrimonial Causes Act 1973, and the Attorney-General was given leave to intervene in the proceedings. The second petition, dated April 20, 1979, prayed for a declaration that the marriage between the petitioner and Eugenio Messina was valid and subsisting at the date of the death of the latter.

The facts are stated in the judgment of Waterhouse J.

Joseph Jackson Q.C. and Matthew Thorpe for the petitioner.

Bruce Holroyd Pearce Q.C., J. J. Davis and Ian Karsten for the first intervener.

Anthony Ewbank Q.C. and Nicholas Wilson for the second intervener.

May 8, 1979.WATERHOUSE J. read the following judgment. The petitioner in this case, who is a native of Belgium, had the misfortune, as it now appears to her, to go through a form of ceremony of marriage with the respondent, one William George Smith, now deceased, at Paddington register office on August 11, 1954. A primary purpose of the ceremony was to enable her to acquire British nationality in order to remain in England whilst carrying on her trade of prostitution without fear of deportation. An additional object was to enable her to acquire a British passport so that she could travel freely between England and the continent. The advantages of the status conferred upon her by the ceremony of marriage have long since ceased to be of any substantial benefit to her; they have become outweighed heavily by the disadvantages. In consequence, her attempts to divest herself of the status have occupied the attention of the courts of three countries: England, Belgium and Italy.

The first application now before me is contained in a petition dated September 7, 1973, in which the petitioner prays for a declaration by this court under R.S.C., Ord. 15, r. 16, that a decree of the Kortrijk county court in the province of West Flanders, Belgium, pronouncing that the petitioner's 1954 marriage was "absolutely invalid ab initio," is entitled to be recognized. The underlying purpose of the application is to establish that she is entitled to be recognized in England as the lawful widow of Eugenio Messina, with whom she went through a form of ceremony of marriage on March 12, 1970, in San Remo. When the petitioner abandoned prostitution in London in or about 1963, she went to live in San Remo with Eugenio Messina, who had been released in 1960 from a long term of imprisonment in Belgium for offences connected with prostitution. He died during the evening of the day of the marriage ceremony, leaving a substantial estate in Italy, England and

elsewhere. The English estate includes two freehold houses and a long leasehold house in London. Its total value was assessed at more than £100,000 in 1970, and the value now may be twice that amount. Not surprisingly, therefore, the petitioner's application has been opposed by the brothers of Eugenio Messina on behalf of themselves and other members of the Messina family who have an interest in the estate. Letters of administration in respect of the English estate were granted to two brothers, Salvatore and Attilio Messina, by Mr. Registrar Kenworthy on June 19, 1973. A caveat was entered on behalf of the petitioner in September 1973, and grants ad colligenda bona have been made since. In the present proceedings it was Salvatore Messina who was given leave initially to intervene, but he has since died and he has been replaced as intervener by Attilio Messina with effect from August 30, 1977.

In the course of the unavoidably interrupted hearing of the petitioner's first application in June and July 1978, it became apparent to me that this might well be a case in which she should have proceeded by way of a petition pursuant to the provisions of section 45 of the Matrimonial Causes Act 1973 for a declaration as to the validity of her marriage to Eugenio Messina. This provisional view was reinforced by the submissions made on behalf of the intervener Attilio Messina by Mr. Holroyd Pearce, who invited me to dismiss the first application on that and other grounds. Mr. Pearce's submissions generally raised important questions of jurisdiction and public policy and I thought it right, therefore, to invite the Queen's Proctor to consider the position in consultation with the Attorney-General, bearing in mind the statutory right of the Attorney-General to be heard in any proceedings under section 45.

In the result the Attorney-General has sought leave, which I have granted, to intervene in the proceedings on the petitioner's first application. Furthermore, in the light of the submissions on behalf of the Attorney-General, of which the petitioner was given advance notice, Mr. Jackson on her behalf has applied for leave to file a second application, now contained in a petition dated April 20, 1979, by which the petitioner seeks a declaration under section 45 that the marriage celebrated on March 12, 1970 between her and Eugenio Messina was a valid and subsisting marriage at the date of the death of Eugenio Messina. In these second proceedings the Attorney General is a necessary party, and I have given leave to Attilio Messina to intervene again on behalf of all the members of the Messina family who may have an interest in the outcome. I need not repeat the consequential directions that I gave on March 22, 1979, on the petitioner's undertaking to file the second petition. It is sufficient for me to say that I dispensed with service on an alleged illegitimate son of Eugenio Messina because it is not necessary for him to be represented separately from Attilio Messina on the relevant issues before me, that I ordered that the two petitions should be consolidated, and that I dispensed with the service of further pleadings in view of the full arguments addressed to me. The procedural requirements of section 45 and the rules have now been complied with and, by

consent, I am able to deal with all the issues raised by both petitions. I should add that I have been assisted greatly by the submissions made by Mr. Ewbank on behalf of the Attorney-General on all the issues.

History of the nullity proceedings in England, Belgium and Italy

The petitioner was initially successful here in obtaining a declaration of nullity in respect of the 1954 marriage, which was granted by Judge Forrest in an undefended suit on June 23, 1970. Although the petitioner was then resident in Belgium, she petitioned on the basis that the marriage ceremony had taken place here. The address of the respondent was unknown to her when she filed the petition. The ground on which the declaration was made was that the petitioner had not consented to the marriage because she was at all material times ignorant of the nature of the contract which she had been induced to enter into. An additional allegation that she had been subject to duress was rejected by the judge.

Before the decree was made absolute, Salvatore Messina, who had learnt of the proceedings by chance, was given leave to intervene in the suit to show cause why the decree should not be made absolute, and the Queen's Proctor also intervened to show cause. As a result of the Queen's Proctor's inquiries, the petitioner learnt that the respondent had been married in Shanghai before the last war to a Russian woman, who had obtained a divorce from him in June 1946 in Las Vegas, Nevada. The petitioner therefore filed a further petition, which was amended on November 24, 1970, praying for a declaration of nullity on the ground that the respondent did not have the capacity to marry her in 1954 because his previous marriage had not been validly dissolved or annulled and his Russian wife was still alive. By this time the respondent's address was known because he had entered an appearance in the first suit, and the petitioner relied on the fact that he resided in England to found the jurisdiction of the court. The case came on for hearing before Ormrod J. early in 1971 and he gave judgment on May 7, 1971. In relation to the first petition, he allowed both interventions, set aside the decree nisi, and dismissed the petition with costs, and he dismissed the further petition, with costs, in favour of Salvatore Messina, who had intervened in that suit also. The judgment is reported as Messina (formerly Smith orse. Vervaeke) v. Smith (Messina intervening) [1971] P. 322, and I have before me a full transcript, which includes the detailed consideration by Ormrod J. of the evidence in relation to the first petition that is omitted at p. 329 of the law report.

Notices of appeal were served in respect of both the orders but the appeals were discontinued by the petitioner by notice dated March 6, 1972, and they were dismissed by the Court of Appeal the following day.

Meanwhile, on December 6, 1971, whilst her English appeal was still pending, the petitioner had begun proceedings in the court of first instance, or county court, in Kortrijk in Belgium, again praying for a declaration of nullity. Her pleaded case was that the 1954 marriage had taken place without her consent. In support of this, she alleged again

that she had been ignorant of the true nature of the ceremony but she relied also on allegations that she had not intended to contract a marriage with the respondent and had never lived with him.

The respondent appeared by a solicitor in the Belgian proceedings and served a pleading in which he admitted that the marriage ceremony was purely a formality and was gone through solely for the purpose of obtaining British nationality for the petitioner in order to prevent her from being deported from the United Kingdom. The pleading added, "The very last purpose of this formality was living together, and immediately after the ceremony the parties parted for good." By way of prayer, it was said that the respondent would conform to the wisdom of the court. In a later pleading he said that he accepted "the authority ratione loci" of the court.

As in the English proceedings, Salvatore Messina intervened to oppose the petitioner's claim. He prayed in aid the English decisions, asserted that English law governed the validity of the marriage, and impugned the petitioner's motives in seeking a declaration of nullity.

The judgment of the three judges sitting in Kortrijk county court was given on June 9, 1972. They ruled that the intervention by Salvatore Messina was admissible but rejected his arguments against the petitioner's claim. The court did not refer in its judgment to the question whether it was a court of competent jurisdiction, presumably because this had been conceded by the respondent and not argued by the intervener. In the absence of any objection, the court would assume jurisdiction on the basis that the petitioner was resident within its district, having resumed residence there by May 21, 1970: see articles 636 and 638 of the Belgian Judicial Code. The court rejected the petitioner's claim in so far as it was based on her alleged ignorance of the nature of the 1954 marriage ceremony. It held that it was not bound by the principle of res judicata because the judgment of Ormrod J. had not altered the status of persons, but it adopted, for the purpose of its own decision, the findings of the judge. On the new part of the petitioner's case, however, the Belgian judges held that the essential validity of the marriage or its substratum was governed by the personal laws of the parties, that is, by the law of each party's ante-nuptial nationality, and that the marriage was invalid ab initio because section 146 of the Belgian Civil Code provides that no marriage exists where there is no consent. In this context it was said in the judgment that the findings of fact made by Omrod J. showed that the petitioner and the respondent had agreed to bar any community of life whatsoever, that they were never housed together, and that they never lived as husband and wife. Accordingly, it was said, the consensus had been infected by lack of will, namely, the absence of a real consensus.

Salvatore Messina appealed against this decision to the Court of Appeal in Ghent, and the decision of that court was given on April 27, 1973, after the parties and the public prosecutor had been heard. The decision of the lower court was affirmed. Dealing with the ratio decidendi of the judgment of the Kortrijk court, the Court of Appeal said:

"In consequence the consent they (the parties) both gave was not the consent to a marriage but a beguiling gesture meant to reach an aim completely unconnected to the marriage bonds. The consent to a marriage belongs to the fundamental conditions. These conditions and also the sanctions applied to them by the law are determined by the personal law of each party or, with reference to the first defendant who was of Belgian nationality, by the Belgian law."

After referring to the provisions of section 146 of the Civil Code, the judgment continued (in the words of the translation with which I have been supplied):

"As the parties delusively indulged in a marriage ceremony without in fact really consenting to a marriage, they behaved against public policy. The disturbance of public order, the protection of what belongs to the essence of a real marriage and of human dignity, exact that such a sham marriage be declared invalid."

It followed that, in the view of the Court of Appeal in Ghent, the Belgian court was not bound by the decision of Ormrod J. in this country, and the Court of Appeal held that, in any event, Ormrod J. had not been asked to consider the complete absence of consent to the marriage in the relevant sense argued before the Kortrijk court.

In order to complete the history of the petitioner's proceedings I should mention that she brought a civil action in Genoa in 1974 to obtain a declaration of the validity in the Italian Republic of the decision by the Court of Appeal in Ghent. The decision of the Court of Appeal of Genoa was given on July 15, 1976, in proceedings in which the respondent did not appear, but Salvatore Messina was represented. The Court of Appeal granted the declaration prayed for and ordered that it should be endorsed on the registers of the civil status of the commune of San Remo at the foot of the deed of marriage contracted between the petitioner and Eugenio Messina. In a short judgment the court held, inter alia, that the Belgian court was of competent jurisdiction according to Italian law, that its judgment was final according to Belgian law and not contrary to any Italian judgment or to Italian jurisdiction, and that it did not include any provision contrary to Italian public order. The threat of proceedings in Italy against the petitioner for bigamy has presumably, therefore, receded for the time being, but I have been told that an appeal against the Genoa decision is being pursued.

Domiciles, residences and nationalities of the petitioner and respondent

I have already referred briefly to the background of the parties, but I must now set it out in more detail before considering the jurisdictional and other issues that I have to decide.

Comparatively little is known of the respondent's history, and I have not been given any evidence about events prior to 1971 to supplement the facts set out in the judgment of Ormrod J. in Messina v. Smith [1971] P. 322. In brief, it appears that he was born in Bloomsbury on June 18, 1905, and joined the Shanghai municipal police in 1929. He

was interned in Shanghai by the Japanese in 1941, and he remained there, working for the United States Navy, for a period after his release in 1946. He was probably resident in Malaya when he went through the ceremony of marriage at Paddington with the petitioner in 1954. It seems to be reasonably clear, however, that by 1970 he was living at 33 Trent Road, S.W.2, and was then permanently resident in the United Kingdom. On these bare facts I respectfully agree with Ormrod J. [1971] P. 322, 337, that it is right to hold that the respondent's domicile was England at all material times; in particular, in August 1954, and since 1970, notwithstanding his rather loose connection with this country for at least 25 years after he joined the Shanghai police. Ormrod J. was mainly concerned with his domicile in 1946, the year of the Nevada decree, but his reasoning applies equally to 1954, and it is not doubted that the respondent's domicile was here from 1970 onwards. He continued to reside at 33 Trent Road, S.W.2, until he died on August 2, 1978, in the course of the proceedings on the petitioner's first application in which he took no part after the petition had been served upon him. It is clear also that he retained his British nationality throughout his life.

The petitioner was born with Belgian nationality on September 10, 1930, at Harelbeke in West Flanders. Her parents moved a few kilometres to Deerlijk when she was young and her residence was at their home there until 1954. Following her move to England, she lived for about nine years in Mayfair, working as a prostitute and acquiring many convictions in that trade. When she married the respondent in August 1954, she said she was living with him at an address in Maida Vale, and when she applied the next month for registration as a citizen of the United Kingdom and Colonies under section 6 (2) of the British Nationality Act 1948, as a woman who had married a citizen of the United Kingdom and Colonies, she said that she was living with her husband at a Kensington flat. She signed the oath of allegiance in her married name on September 3, 1954, and was duly registered as a citizen on September 23, 1954. Shortly afterwards, she obtained a British passport and she held a valid passport until June 1970 or possibly later. Her last conviction in London as a prostitute was on May 24, 1962, and her evidence in this court was that she went to live in San Remo with Eugenio Messina in 1963. However, she applied for a new British passport in June 1965, giving as her residence an address in Geneva. She declared at the time that she had not lost the status of a British subject and had retained citizenship of the United Kingdom and Colonies. The petitioner's explanation in these proceedings for the application for a new passport was that she had visited London briefly in 1965, against her own wishes, at the insistence of Salvatore Messina, to transact some business. She stayed only two days and had to obtain a new passport, because the first passport had expired, in order to leave the country again.

After the ceremony of marriage with Eugenio Messina on March 12, 1970, and his death that day, the petitioner remained for a very short time in San Remo. On May 21, 1970, she registered herself in

Belgium as resident again at her parents' home in Deerlijk and made a declaration to the effect that she wished to retain Belgian nationality notwithstanding her marriage to Eugenio Messina. Such a declaration had to be made within six months of the relevant marriage according to Belgian law if a wife would otherwise automatically acquire the nationality of her husband by his law. She did not disclose either her English marriage or her acquisition of British nationality to the Belgian authorities, and I am satisfied that her declaration was made on a false basis.

The petitioner has lived in Belgium continuously since May 1970 and all her family connections are with Deerlijk. Her father died two years ago but her mother, two brothers and a sister all live there. On September 2, 1976, she went through a ceremony of marriage with Andre Roelens, a Belgian national who is a chemist by occupation, and they live at Oostrozebeke, quite near Deerlijk.

On this evidence it is clear that the petitioner retained her domicile of origin and her Belgian nationality until she came to this country in 1954, but there has been considerable argument about her status and the basis of it since then.

On behalf of the Attorney-General and the intervening Messina, it has been argued that there is evidence justifying a finding that the petitioner acquired a domicile of choice here before the marriage ceremony with the respondent because her intention was to reside here indefinitely. However, in her evidence before me, the petitioner denied that she ever intended to settle permanently in England. At one point she said that she came here with the intention of staying for three months only, which was the duration of a course in English, but I find that evidence quite unacceptable. More credibly, she said that it was her intention or hope to marry Eugenio Messina ultimately, and that she would have lived with him anywhere if he had married her. It is necessary to treat her evidence with great reservation in view of the history of her conduct generally, but I think that it would be wrong for me to hold that the evidence establishes that she ever had the intention to settle in England permanently. What the evidence does show is that she intended to live here for a substantial period and then to go to live with Eugenio Messina, wherever he chose to live, which was unlikely to be in England in view of his background. This falls far short, in my judgment, of the intention to settle here permanently which would have been necessary to establish a domicile of choice. In this context I need cite only a short passage from the speech of Lord Halsbury L.C. in Winans v. Attorney-General [1904] A.C. 287, 288:

"Now the law is plain, that where a domicil of origin is proved it lies upon the person who asserts a change of domicil to establish it, and it is necessary to prove that the person who is alleged to have changed his domicil had a fixed and determined purpose to make the place of his new domicil his permanent home. Although many varieties of expression have been used, I believe the idea of domicil may be quite adequately expressed by the phrase - Was the place intended to be the permanent home?"

As in that case, the answer in the instant case should be in the negative. I have, of course, been referred to the helpful analysis of the decisions on this topic by Scarman J. in In the Estate of Fuld, decd. (No. 3) [1968] P. 675, and to his use at p. 684 of the phrase "intention... of residing there indefinitely" in relation to the acquisition of a domicile of choice (see also Buckley L.J. in Inland Revenue Commissioners v. Bullock [1976] 1 W.L.R. 1178, 1184); but it is clear from the judge's analysis generally that, on the facts that I have found in the instant case, the petitioner's domicile of origin adhered until her marriage to the respondent. Her intention to join Eugenio Messina elsewhere was much more than a vague possibility at all material times after her arrival in this country, and effectively qualified her intention about residence here.

In English law the petitioner acquired the respondent's English domicile on August 11, 1954, when she married him, subject only to the validity of their marriage, and she retained it until January 1, 1974, when the Domicile and Matrimonial Proceedings Act 1973 came into force. Thereafter, in accordance with the provisions of section 1 of that Act, her domicile of origin in Belgium revived because she had returned there in 1970 with the intention of remaining permanently. If, however, the correct view is that her 1954 marriage was void ab initio, she retained her domicile of origin until about 1963 when, according to her own evidence, she went to San Remo with the intention of settling there permanently with Eugenio Messina. On this basis she was domiciled in Italy from 1963 until May 1970, when she reverted to her Belgian domicile.

Determination of the petitioner's nationality raises more difficult questions. In English law she became a British national as a citizen of the United Kingdom and Colonies in September 1954, and no event has yet occurred to divest her of that status. She has not renounced her citizenship in the prescribed manner, nor has she been deprived of her citizenship. Her position in Belgian law, however, must be regarded as uncertain, because she did not disclose her 1954 marriage ceremony or her acquisition of British nationality when electing to retain Belgian nationality in 1970. According to section 18 of the Belgian statute on Acquisition and Loss of Nationality, a Belgian woman loses her Belgian nationality if she voluntarily acquires another or if she marries a foreigner without electing to retain Belgian nationality and by her husband's law automatically acquires his nationality. It should follow, therefore, that the petitioner lost her Belgian nationality in 1954 by voluntarily acquiring British nationality, and that her purported declaration on May 21, 1970, to retain Belgian nationality notwithstanding her marriage to Eugenio Messina was ineffective. The correct procedure would have been for her to apply for naturalization as a Belgian, but she has no doubt re-acquired Belgian nationality automatically now by her remarriage to a Belgian national in 1976, so that the point may be regarded as academic from the Belgian point of view. I am not persuaded, however, that the petitioner was truly a Belgian national according to Belgian law in December 1971, when she began proceedings

in the Kortrijk court, even if one accepts that her 1954 marriage was void ab initio in Belgian eyes.

Jurisdiction under R.S.C., Ord. 15, r. 16

The power of the court to grant a declaration that a foreign nullity decree is effective in this country is now well established. The material provisions are contained in R.S.C., Ord. 15, r. 16, which is general in its terms, and examples of its application in the case of foreign nullity decrees are to be found in Abate v. Abate (orse. Cauvin) [1961] P. 29 and Merker v. Merker [1963] P. 283.

The jurisdiction of the court to make such a declaration if either party to the purported marriage is not domiciled here is less clear. According to Dicey & Morris, The Conflict of Laws, 9th ed. (1973), p. 372 (rule 51), the English court only has jurisdiction if, at the date of the institution of the proceedings, the petitioner is domiciled in England or both parties are resident in England. In this case the first petition for a declaration was dated September 7, 1973, and the petitioner was then resident in Belgium. Furthermore, she was domiciled in England only if her marriage to the respondent was a valid and subsisting marriage. She asserts, however, that this marriage was void ab initio and the court cannot, therefore, in the present case found its jurisdiction on her dependent domicile. This problem arose in rather different circumstances in Garthwaite v. Garthwaite [1964] P. 356, where a wife sought a declaration that her marriage was valid and subsisting. Her difficulty was that, when she presented her petition seeking this declaration, her husband was domiciled in New York. The Court of Appeal held that it had no jurisdiction to grant the declaration, and Willmer L.J. said, at p. 379:

"Accordingly if, as the wife asserts, her marriage is still subsisting, her domicile is that of her husband, that is, New York State. It follows on well-established principles that, if this case is properly to be regarded as one falling within the matrimonial jurisdiction of the High Court, the wife by her very assertion deprives the court of jurisdiction to entertain the suit."

The alternative basis of the English court's jurisdiction, namely, residence of both parties here, is accepted by the editor of Cheshire's Private International Law, 9th ed. (1974), pp. 425 and 426, and it is founded upon the decision of Sir Jocelyn Simon P. in Qureshi v. Qureshi [1972] Fam. 173. In that case, commenting on the judgments in Garthwaite v. Garthwaite [1964] P. 356, Sir Jocelyn Simon said, at [1972] Fam. 173, 193:

"Garthwaite v. Garthwaite in reality decides that (in addition to jurisdiction based on domicile) the court has power to make a declaration under R.S.C., Ord. 15, r. 16, in such circumstances as would have given the English ecclesiastical courts in their totality before 1857 jurisdiction to accord matrimonial relief - in particular to grant a decree of restitution of conjugal rights. I respectfully concur with this view of the decision: see Willmer L.J. at pp. 383-385,

Danckwerts L.J. in the first paragraph of his judgment at p. 385, and Diplock L.J., particularly in the middle of p. 397. In Har-Shefi v. Har-Shefi [1953] P. 161, 174, Hodson L.J. agreed with Barnard J. that petitions in nullity were analogous to declarations under R.S.C., Ord. 25, r. 5 (now Ord. 15, r. 16), and thought that jurisdiction in respect of each should be decided on the same principles. The ecclesiastical courts before 1857 had jurisdiction to entertain suits for marital relief if both parties were, at the date of commencement of proceedings, resident in the territorial area over which the court exercised jurisdiction. The High Court still has jurisdiction to entertain a suit for nullity, judicial separation or restitution of conjugal rights where the parties are resident in England at the commencement of proceedings."

It followed, in Sir Jocelyn Simon P.'s view, that each party in the Qureshi case was entitled to the declaration sought because they had been resident in England at the commencement of, and throughout, the proceedings, and he based his decision on that ground.

In the present case, Mr. Jackson, on behalf of the petitioner, has invited me to hold that the court has jurisdiction to grant the declaration sought under R.S.C., Ord. 15, r. 16 because Smith, the respondent to the first petition, was resident here when the proceedings were begun. In his submissions to me, Mr. Jackson adopted the view expressed in Rayden on Divorce, 13th ed. (1979), vol. 1, p. 75, that the bases of the jurisdiction are akin to those for nullity of marriage. Jurisdiction in nullity is now governed by section 5 (3) of the Domicile and Matrimonial Proceedings Act 1973, which provides, inter alia, that the court shall have jurisdiction to entertain the proceedings if either of the parties was habitually resident in England and Wales throughout the period of one year ending with the date when the proceedings were begun. The provisions of section 5 (3), which came into force on January 1, 1974, nearly four months after the first petition for a declaration was presented, replaced the common law rules and the earlier provisions of section 40 of the Matrimonial Causes Act 1965, as amended by section 7 (2) of the Nullity of Marriage Act 1971, which was the legislation in force in September 1973. However, the jurisdiction of the English court to annul a marriage, if the respondent was resident in England at the commencement of the proceedings, was well established before 1973 and was derived from the jurisdiction of the ecclesiastical courts. Thus, in Ramsay-Fairfax (orse. Scott-Gibson) v. Ramsay-Fairfax [1956] P. 115, a case in which both parties were resident in England but domiciled in Scotland, Denning L.J. said, at p. 132:

"It is quite clear that the ecclesiastical courts based their jurisdiction in cases of nullity on residence, not upon domicile. If the respondent, the defendant to a petition, was resident within the local jurisdiction of the court, then the court had jurisdiction to determine it. So in the present case."

See also the argument of counsel at p. 129.

The old cases on residence were considered again by the House of

Lords in Ross Smith (orse. Radford) v. Ross Smith [1963] A.C. 280, in which there was very full argument about the basis of the jurisdiction of the ecclesiastical courts in nullity suits: see, for example, the account of that jurisdiction given by counsel for the appellant at p. 282. The case itself turned on the question whether the fact that the marriage had been celebrated in England was a sufficient basis for the court's jurisdiction in a suit in which the marriage was alleged to be voidable. It was accepted, however, that residence of the respondent was a proper foundation for jurisdiction: see the speeches of Lord Reid at p. 304, Lord Morris of Borth-y-Gest at pp. 317 and 323, and Lord Hodson at p. 325.

Again, in Garthwaite v. Garthwaite [1964] P. 356, 390, Diplock L.J. confirmed the rule derived from the ecclesiastical courts that residence of the respondent in England was sufficient. There appear to be comparatively few reported cases of nullity in which jurisdiction has been founded solely on that ground but Scarman J. did so in Russ (orse. De Waele) v. Russ and Russ (orse. Geffers) (No. 2) (1962) 106 S.J. 632: see also Magnier v. Magnier (1968) 112 S.J. 233 and the Scottish decision in Foster or Aldridge v. Aldridge, 1954 S.C. 58.

A similar rule has been applied in suits for judicial separation. A recent example of its application is to be found in Sinclair v. Sinclair [1968] P. 189. In that case the wife petitioner was resident in England but this was not directly relevant to the issue as to jurisdiction. The crucial argument in the Court of Appeal was whether there was evidence to justify a finding that the respondent was resident here at the commencement of the proceedings. Willmer L.J. said, at p. 213:

"It is not disputed 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."

See also Russell L.J. at p. 222 and Scarman J. at p. 232.

In the earlier case of Sim v. Sim [1944] P. 87, Pilcher J. founded jurisdiction on the residence of the respondent in England, when both parties were domiciled in Scotland and the wife petitioner was resident there. After reviewing the authorities and the opinions of text book writers, Pilcher J. said, at p. 94:

"In this case the party against whom relief is sought, namely, the husband, is resident in this country. I was satisfied on the evidence called at the hearing of the issue before me that he had deserted his wife without cause in or about the year 1937. I was also satisfied that, but for his refusal to receive his wife in his Newcastle house, she would have come and lived with him at Newcastle, in which case the husband and wife would both have been physically resident within the jurisdiction. I am not satisfied that the ecclesiastical courts attached any importance to the actual residence within the jurisdiction of a wife seeking relief against her husband, and I see no reason why this court, acting on principles which conform to

the principles acted on by the ecclesiastical courts, should attach any importance in a suit for judicial separation to the actual residence of a wife who has herself invoked the process of the court and so submitted to its jurisdiction."

I respectfully agree.

In the light of this analysis of the authorities I am compelled, with some diffidence, to disagree with the opinions expressed in Dicey & Morris, The Conflict of Laws, 9th ed. (1973), p. 372 and Cheshire's Private International Law, 9th ed. (1974), pp. 425-426 as to the basis of the court's jurisdiction under R.S.C., Ord. 15, r. 16. It seems clear that the true basis of jurisdiction, other than domicile, is residence of the respondent in this country; and that rule is unaffected by any of the recent statutory provisions to which I have referred earlier in this part of my judgment.

A particular problem which has arisen in the present case is that the respondent died on August 2, 1978, nearly five years after the first petition for a declaration was presented. However, his death does not oust the jurisdiction of the court. The material date for determining jurisdiction is that when the proceedings were commenced: in this case, in relation to the first petition, it is September 7, 1973. This point was dealt with by Ormrod J. at first instance in Sinclair v. Sinclair [1968] P. 189, 200:

"The crucial date and stage of the suit for this purpose is, in my judgment, the inception of the suit, which means, in our current practice, the date on which the petition is filed. This must follow if the principles of the ecclesiastical courts are the foundation upon which this jurisdiction depends. The Statute of Citations of Henry VIII prohibited the citation of a person who was not inhabiting or dwelling within the diocese. Dr. Lushington in Collett v. Collett (1843) 3 Curt. 726 specifically based jurisdiction on this statute. Gorell Barnes J. in Armytage v. Armytage [1898] P. 178, 194, which is the locus classicus on this topic, said: 'In my opinion, if the parties had a matrimonial home, but were not domiciled within the jurisdiction of an ecclesiastical court, that court would have interfered, if the parties were within the jurisdiction at the commencement of the suit, to protect the injured party against the other party in respect of the adultery or cruelty of the latter, and I can find no authority for the suggestion made by the respondent's counsel that such interference would be limited to cases where the offence complained of was committed within the jurisdiction.' Graham v. Graham [1923] P. 31 and Raeburn v. Raeburn (1928) 44 T.L.R. 384 are to the same effect."

The correctness of that ruling was confirmed by the Court of Appeal, although the court reached a different conclusion from the trial judge on the facts of the case. A similar point had been decided in relation to divorce proceedings in two cases in 1967, Leon v. Leon [1967] P. 275 and Mansell v. Mansell [1967] P. 306, and the decisions of Baker J. and Cumming-Bruce J. respectively in those cases were to similar effect.

I should add finally on this point that there is nothing in R.S.C., Ord. 15, r. 16, to fetter the power of the court to make a declaration as prayed by the petitioner in this case when the other party to the disputed marriage is dead. A declaration that a German decree of divorce was void was made by Bagnall J. in In re Meyer [1971] P. 298, some five years after the death of the husband, and it was not suggested on behalf of the Queen's Proctor in that case that the death ousted the jurisdiction of the court.

Accordingly, I hold that the court has jurisdiction under the English rules of private international law to make the declaration for which the petitioner prays in her first petition.

The discretion of the court under R.S.C., Ord. 15, r. 16

As I said at the outset of this judgment, the underlying purpose of the petitioner in presenting both petitions before me is to establish that she is entitled to be recognized in England as the lawful widow of Eugenio Messina so that she will be entitled to a share in his estate. In other words, she seeks to establish here, for the purpose that I have stated, the validity of her marriage to Eugenio Messina on March 12, 1970, in San Remo. She has been quite straightforward in accepting that this is her objective. When I asked Mr. Jackson whether there was any other purpose behind the proceedings, he was instructed to say that the petitioner did have an emotional, as well as a practical, desire that her Messina marriage should be recognized here because of her regard for Eugenio Messina, but I am unable to accept that assertion in the light of all her personal circumstances and the history generally.

In view of the petitioner's objective in the proceedings, it is necessary for me to consider at this stage of my judgment the nature of any discretion that the court has in relation to the grant of a declaration under R.S.C., Ord. 15, r. 16, and the principles on which any such discretion should be exercised.

I would have thought that it was clear beyond argument from the wording of rule 16 that the court's power is discretionary, but Mr. Jackson has argued on behalf of the petitioner that there is no relevant discretion in the present case. He says that the case, in relation to the first petition, is not about the validity of the Messina marriage: it is simply about the recognition of the decree of a foreign court of competent jurisdiction. From that premise he goes on to submit that the court is bound by the terms of article 3 of the Convention between Belgium and Great Britain and Northern Ireland for the Reciprocal Enforcement of Judgments in Civil and Commercial Matters dated May 2, 1934 (hereafter called "the Convention"), which has been duly ratified: see the Schedule to the Reciprocal Enforcement of Foreign Judgments (Belgium) Order in Council 1936 (S.R. & O. 1936 No. 1169).

Article 3 (1) provides in effect that a judgment in civil and commercial matters given by any superior court in Belgium or England and executory in the country of the original court, although still open to proceedings by way of opposition, appeal or setting aside shall, in the courts of the territory of the other, be recognised in all cases where no

objection to the judgment can be established on any of the grounds specified in the sub-paragraphs that follow. Article 3 (3) further provides:

"The recognition of a judgment under paragraph (1) of this article means that such judgment shall be treated as conclusive as to the matter thereby adjudicated upon in any further action as between the parties... and as to such matter shall constitute a defence against further action between them in respect of the same cause of action."

Mr. Jackson argues, therefore, that, if the prescribed conditions for recognition of a Belgian decree are fulfilled, the English court has no discretion to refuse a declaration that the decree is to be recognized.

In my judgment this argument fails to distinguish between entitlement to recognition of a particular decree under the Convention and the right of a litigant to a declaration to that effect under R.S.C., Ord. 15, r. 16. The distinction between an entitlement in law in relation to a specific subject matter and the right of a litigant to a declaration as to that entitlement is a very familiar one and does not need elaboration here. The court has evolved rules governing the exercise in many and varied circumstances of its discretion to make binding declarations, and I can see nothing in the provisions of the Convention that can have the effect of removing that discretion: see Scarman J. in Varanand v. Varanand, The Times, July 25, 1964.

The problem that I have to face here is that Parliament has provided a specific procedure for determination of the very question that is crucial to the petitioner's objective, namely, whether or not her marriage to Eugenio Messina should be recognized as valid in England. The material provisions of section 45 (1) of the Matrimonial Causes Act 1973, replacing section 39 (1) of the Act of 1965, are:

"Any person who is a British subject, or whose right to be deemed a British subject depends wholly or in part on his legitimacy or on the validity of any marriage, may, if he... claims any real or personal estate situate in England and Wales, apply by petition to the High Court for a decree declaring... that his own marriage was a valid marriage."

In the present case it is now common ground that the petitioner is a British subject, that her status as such is independent of the validity of any marriage, that she claims real and/or personal estate here, and that she is entitled to petition for a decree declaring that her marriage to Eugenio Messina was a valid marriage. Moreover, there is now before me, belatedly, a second petition praying for a declaration pursuant to the provisions of section 45. On behalf of the petitioner, however, Mr. Jackson presses her case for a declaration on the prayer of the first petition.

There are a number of decisions on the effect of the provisions of section 39 of the Act of 1965 that are material to the exercise of my discretion in the present case. In Kassim (orse. Widmann) v. Kassim

(orse. Hassim) [1962] P. 224, 233, Ormrod J. pointed out the different sources of the general, but discretionary, jurisdiction of the court to grant declarations under the earlier provisions of what was then R.S.C., Ord. 25, r. 5, and the statutory jurisdiction in nullity exercised under section 21 of the Supreme Court of Judicature (Consolidation) Act 1925. He went on to say, at p. 234:

"In cases such as the present, therefore, where a declaration is sought that a marriage is void ab initio there is no need to invoke the provisions of R.S.C., Ord. 25, r. 5, and indeed, in my judgment, there is no room for the operation of the rule in this class of case. The jurisdiction of this court to deal with marriages void ab initio exists quite independently of the Rules of the Supreme Court and unlike that jurisdiction is not a matter of discretion."

The problem came before Ormrod J. in a different form in two cases reported in 1968. The first was Collett v. Collett [1968] P. 482 in which there were alternative prayers for a decree of nullity or a declaration, in effect under R.S.C., Ord. 15, r. 16, that the marriage was valid. Having rejected the prayer for a decree of nullity, Ormrod J. said, at p. 493, in relation to the alternative prayer:

"This prayer as it appears in the petition is clearly an attempt to invoke the jurisdiction of the court to make declaratory judgments under R.S.C., Ord. 15, r. 16. The question arises, however, whether in view of section 39 of the Matrimonial Causes Act 1965, this court can or ought to exercise this jurisdiction under the Rules of the Supreme Court in a case which is covered by that section. The point is of some importance because under section 39 of the Matrimonial Causes Act 1965, and rule 74 of the Matrimonial Causes Rules 1957, a special code of procedure is laid down which was not followed in this case. Section 39 of the Act of 1965, which was formerly section 17 of the Matrimonial Causes Act 1950, applies primarily, but not exclusively, to petitions for declarations of legitimacy. Under section 39 (1) it is provided that: 'Any person who is a British subject... may, if he is domiciled in England or Northern Ireland... apply by petition to the court for a decree declaring that... or that his own marriage was a valid marriage.' These provisions cover in all respects the present petitioner and the present petition. By section 39 (6) all such petitions must be served on the Attorney-General and by rule 74 of the Matrimonial Causes Rules 1957, the petitioner must apply to the registrar for directions as to what parties shall be served with the petition. These are important safeguards because the rights of third parties may be adversely affected by a declaration that a marriage is valid and, consequentially, that the children of the marriage are legitimate. Accordingly, if the court were to exercise the jurisdiction under the Rules of the Supreme Court and declare a marriage valid, it would enable a petitioner to obtain what might be, in effect, a declaration of legitimacy of his or her children, without complying with the requirements of section 39 (6) and of rule 74."

After referring to Kassim v. Kassim [1962] P. 224, Ormrod J. continued:

'In the present case I have come to the same conclusion, namely, that in cases covered by section 39 of the Matrimonial Causes Act 1965, the court must proceed under and in accordance with that section. The reasons for so holding, which I have already outlined, are at least as, if not more, compelling than those in Kassim v. Kassim."

The further case was Aldrich v. Attorney-General (Rogers intervening) [1968] P. 281 in which the petitioner sought declarations as to the validity of his marriage and as to the legitimacy of his daughter. The petition in its original form was brought under the provisions of R.S.C., Ord. 15, r. 16 but the petitioner was within the terms of section 39 of the Act of 1965 in relation to his prayer for a declaration that his marriage was valid and this was granted after the Attorney-General had been joined. However, Ormrod J. refused a declaration as to the legitimacy of the child. After reciting the provisions of section 21 of the Supreme Court of Judicature (Consolidation) Act 1925, he said at pp. 293-294:

"The effect of this section on the present case is clearly of the greatest importance. Paragraph (b) lays down in express terms that the court shall have such jurisdiction with respect to declarations of legitimacy 'as is hereinafter in this Act provided.' This is, of course, a reference to section 188 of the Act of 1925 which became, with minor amendments, section 17 of the Matrimonial Causes Act 1950, and section 39 of the Act of 1965. I find it quite impossible to construe this section as meaning that the court has also a jurisdiction to grant declarations of legitimacy under the Rules of the Supreme Court. If this were the effect of the rule it would be inconsistent with the section. Moreover, the section itself is subsequent in date to the rule and it is not a mere re-enactment of a provision in an earlier Act. In my judgment the principle 'expressio unius est exclusio alterius' must apply, with the result that the jurisdiction of the court in this connection is limited to cases falling within the provisions of section 39 of the Act of 1965."

The latest reported decision on the application of section 21 (b) of the Act of 1925 to which I have been referred is Eneogwe v. Eneogwe (1976) 120 S.J. 300, in which the Court of Appeal approved the decisions in Collett v. Collett [1968] P. 482 and Aldrich v. Attorney-General (Rogers intervening) [1968] P. 281. An appeal against the grant of a declaration under R.S.C., Ord. 15, r. 16 of the validity of a Nigerian marriage was allowed on the ground that the court had no jurisdiction to make the declaration.

Mr. Jackson has argued forcefully in the present case that the decisions to which I have referred turn essentially on the construction of section 21 (b) of the Act of 1925 and that they are irrelevant here because the first petition merely seeks a declaration as to the validity of a foreign decree pursuant to the provisions of R.S.C., Ord. 15, r. 16. For this purpose, it is said to be immaterial whether the court's jurisdiction

stems from section 21 (a) of the Act of 1925 and the jurisdiction of the ecclesiastical court or from enactments which came into force after the Matrimonial Causes Act 1873: see, in this connection, Har-Shefi v. Har-Shefi [1953] P. 161. In support of his argument Mr. Jackson has prayed in aid a passage in North's The Private International Law of Matrimonial Causes in the British Isles and the Republic of Ireland (1977), p. 85:

"Declaratory judgments in the sphere of annulment of marriage raise a number of problems. There is no doubt that the court has power under R.S.C., Ord. 15, r. 16 to grant a declaration as to the validity of a foreign nullity decree, i.e. whether such a decree will be recognized in England. The situation is different if the validity of a marriage falls for initial consideration before an English court. In that case, the recognition of a foreign nullity decree is not in issue. The one question is whether the marriage is to be regarded as valid under the English rules of private international law."

I confess that I do not find these comments of Dr. North of assistance in the present case because he does not appear to have been considering the problems that arise when the validity of a second marriage depends upon recognition of a foreign nullity decree in respect of a first marriage. In deciding how to exercise my discretion in the instant case I have to return to first principles and, in applying them, I accept the submission on behalf of both interveners that the dicta and decisions in the line of cases beginning with Kassim v. Kassim [1962] P. 224 are relevant guides.

When the court is asked to pronounce a declaratory judgment it is always right for it to consider both the purpose and the likely effect of the declaration that is sought. Here, there is no dispute about the purpose. The petitioner hopes, by means of a declaration that the Belgian nullity decree is entitled to be recognized here, to take an important step forward towards establishing the validity of her Messina marriage and her ultimate goal of securing a share in the English estate of Eugenio Messina. The effect of the declaration prayed for would be less clear. There could still be potential issues to be resolved, including the question whether the English court could give full retrospective effect to the Belgian decree so as to validate the Messina marriage in English law and the relevance of public policy in relation to the validity of that marriage and the right of succession to immovable property in England.

In the light of what I have said, I am firmly persuaded that it would be wrong for me to grant a declaration under R.S.C., Ord. 15, r. 16 in this case, even if other necessary conditions for such a declaration were fulfilled. In the first place, I consider that, if a specific procedure is prescribed by statute to enable a litigant to achieve a precise purpose in defined circumstances that exist in the relevant case, the court should not enable the litigant to invoke an alternative and less direct discretionary procedure, unless there is a persuasive reason for doing so. In particular, I do not consider that the court should make a declaratory judgment under R.S.C., Ord. 15, r. 16 in such circumstances when the effect would be

to enable the litigant, merely by the choice of the declaration sought, to circumvent a specific statutory procedure designed for the determination of the underlying issue. In the present case no reason, so far as I am aware, and certainly no persuasive reason, has been advanced for proceeding under R.S.C., Ord. 15, r. 16 rather than under section 45 of the Matrimonial Causes Act 1973. It is possible that at one stage the petitioner may have had doubts about her continuing status as a British subject or may have been apprehensive about relying upon it to found the jurisdiction of the court, but neither of these points has been argued on her behalf before me.

Secondly, even if the general principle that I have just stated may be criticised on the ground that it is too wide, it should apply in my judgment in cases where the specific and relevant procedure is that provided by section 45 of the Matrimonial Causes Act 1973: see also rules 109 to 112 of the Matrimonial Causes Rules 1977. That section and the rules are designed to ensure that the public interest is fully considered and that all persons with a proper interest in the application shall be joined as parties to the proceedings if they wish. The requirement of notice to the Attorney-General is mandatory, he has to be a respondent on the hearing of the application and in any subsequent proceedings relating thereto, and the court has to give directions relating to other parties. Further, if any proposed petitioner has any doubt about his status as a British subject for the purpose of the section, he may apply to the High Court for a decree declaring his right to be deemed a British subject. These provisions were drawn attention to by Ormrod J. in Collett v. Collett [1968] P. 482, 493, and they underline the undesirability of permitting a litigant to petition by an alternative procedure without the statutory safeguards. In this case the inappropriateness of proceeding under R.S.C., Ord. 15, r. 16, has been illustrated by the unavoidable delay that has occurred since the early hearings because I thought it necessary to invite the Queen's Proctor to consult with the Attorney-General about the issues raised by the first petition and the procedural implications. There does not appear to be any provision enabling the Queen's Proctor to intervene in proceedings for a declaration, and it has been necessary for me to give leave to the Attorney-General to intervene on the hearing of the first petition: see Adams v. Adams (Attorney-General intervening) [1971] P. 188, 197 and 198.

A third reason for refusing to exercise my discretion to grant a declaration under R.S.C., Ord. 15, r. 16, in the instant case is that it raises questions of public policy that should be considered, if they have to be decided, in their full and proper context. The nub of this case is the disputed validity of the petitioner's marriage to Eugenio Messina, and recognition of her Belgian decree of nullity is, or may be, only one of the issues that the court must decide ultimately. It would be wrong therefore, in my judgment for the court to permit the petitioner to divide the case up into separate compartments for her own convenience when there are wide questions of public importance to be considered.

Fourthly, this is a case in which there has already been litigation, including appeals, in the courts of three countries, and representatives

of the Messina family have felt compelled to intervene on each occasion. Whatever the merits of their present case may be, they have the right to submit that it is the petitioner's duty to put the effective issue before the court now by means of the most appropriate procedure so that finality can be achieved at the minimum expense to the parties and with the maximum speed. This argument is, of course, relevant to the question of costs but I regard it as material also to the exercise of my discretion. I can see no justification for a protracted hearing in pursuit of the limited declaration prayed for in the first petition.

For all these reasons, therefore, my decision is that the prayer of the first petition for a declaration should be rejected.

The issues that arise on the second petition

As I have indicated earlier in this judgment, it is common ground that the petitioner is entitled to petition under section 45 of the Matrimonial Causes Act 1973 for a declaration that her marriage to Eugenio Messina in San Remo on March 12, 1970 was a valid marriage. This she has now done by her petition dated April 20, 1979, and all the necessary parties are before the court. The respondent was, of course, dead when the petition was presented, but this does not affect the validity of the proceedings and it has not been suggested to me that it is necessary for either his estate or his next of kin to be represented in the particular circumstances of the case.

According to the English rules of private international law, the petitioner's capacity to marry in 1970 was governed by the law of her ante-nuptial domicile. If her 1954 marriage to the respondent was a valid marriage, her domicile in March 1970 was her dependent domicile, namely, England, as I have already found. If, however, her 1954 marriage was void ab initio, she had acquired by 1970 a domicile of choice in Italy. The validity of the petitioner's marriage to Eugenio Messina turns, therefore, upon the validity in March 1970, according to English law, in the widest sense, of the 1954 marriage here.

The only proceedings in England that are relevant now to this question were those before Ormrod J. in 1971 and the subsequent abandoned appeals against his rejection of the prayers of both her petitions for nullity. In English law, therefore, as the position was in March 1970, the 1954 marriage was valid, and there has been no English decision to alter that position. If that remains the position, the petitioner did not have the capacity, according to the law of her domicile, to contract a valid marriage to Messina in March 1970. In Belgium, however, she obtained a declaration on June 9, 1972, from the Kortrijk county court that the 1954 marriage was invalid ab initio, and this decision was affirmed by the Court of Appeal in Ghent on April 27, 1973. What then is the effect of the Belgian decree on the capacity of the petitioner to marry in March 1970, according to the English rules of private international law?

It is clear that, as a first step towards answering this question, I have to consider whether the Belgian decree should be recognized by the English court. If the question is answered in favour of the petitioner,

it will be necessary to consider the precise extent to which the decree should be recognized and the impact of such recognition on the petitioner's capacity to marry in March 1970.

It is agreed between the parties to the present proceedings that recognition here of Belgian decrees is now governed by the provisions of the Convention of 1934 to which I have already referred. I have summarized early in the preceding section of this judgment the general effect of the provisions of article 3 and I need not repeat the summary here. What I now have to consider is whether any of the specific exceptions to the general rule of mutual recognition, particularized in article 3 (1), apply in the present case. The relevant exceptions are:

"... (a) In the case in question the jurisdiction of the original court is not recognized under the rules of private international law with regard to jurisdiction observed by the court applied to; ... (c) The judgment is one which is contrary to the public policy of the country of the court applied to; (d) The judgment is in respect of a cause of action which had already at the date when it was given, as between the same parties, formed the subject of another judgment which is recognized under the law of the court applied to as final and conclusive; ..."

I will consider each of these exceptions in turn in the order (a), (d), (c).

Is the Kortrijk county court to be recognized as a court of competent jurisdiction under the English rules of private international law?

As I have said earlier, the judgment of the three judges sitting in the Kortrijk county court did not refer to the question whether it was a court of competent jurisdiction, presumably because this had been conceded on behalf of the respondent and had not been challenged on behalf of the intervener, Salvatore Messina. According to Professor Francis Rigaux, the expert in Belgian law who gave evidence on behalf of the petitioner before me, the relevant provision of the Belgian Judicial Code is article 638, which provides:

"Where the various grounds contained in this part of the code are insufficient to determine the competence of the Belgian courts over foreigners, the plaintiff may bring the action before the judge of the place where he himself has his domicile or place of residence."

This is subject to the provisions of article 636 but I need not read the translation of that article here. As for the definition of domicile or place of residence for this purpose, article 36 defines it as the place where a person is registered on the register of population. Registration is, therefore, decisive.

In the present case the petitioner was registered from May 21, 1970, as resident at Deerlijk within the jurisdiction of the Kortrijk court and she remained resident and registered continuously thereafter at all relevant times. Thus, she had been resident for just over 18 months within that court's jurisdiction when she presented her petition for nullity there on December 6, 1971.

On her behalf, Mr. Jackson now submits that the Kortrijk court was of competent jurisdiction according to the English rules of private international law on four grounds, listed in the order of Mr. Jackson's preference as follows: (1) that the petitioner was domiciled in Belgium; (2) that she had a real and substantial connection with Belgium; (3) that she was of Belgian nationality; and (4) that she was habitually resident in Belgium.

Mr. Holroyd Pearce on behalf of the Messina family disputes each of these grounds and urges me to hold that the Belgian decree should not be recognized because the parties were neither domiciled nor resident there at the commencement of the proceedings and remained domiciled in England according to English law. However, Mr. Ewbank on behalf of the Attorney-General invites me to accept the jurisdiction of the Belgian court because the petitioner had been resident in Belgium for more than a year when her proceedings there were begun. He suggests also that the facts that the petitioner was living in Belgium and had a real and substantial connection with Belgium may be a sufficient alternative basis for accepting the Belgian jurisdiction, although the Attorney-General has reserved his position as to the correctness of the decision of Bagnall J. in Law v. Gustin (formerly Law) [1976] Fam. 155.

A convenient starting place for consideration of the problem is the present English statutory provisions governing domestic jurisdiction in nullity, which are contained in section 5 (3) of the Domicile and Matrimonial Proceedings Act 1973, which came into force on January 1, 1974. They are as follows:

"The court shall have jurisdiction to entertain proceedings for nullity of marriage if (and only if) either of the parties to the marriage - (a) is domiciled in England and Wales on the date when the proceedings are begun; or (b) was habitually resident in England and Wales throughout the period of one year ending with that date; or (c) died before that date and either - (i) was at death domiciled in England and Wales, or (ii) had been habitually resident in England and Wales throughout the period of one year ending with the date of death."

It is to be noted that apart from the special provisions of sub-paragraph (c), the provisions are identical with those governing proceedings for divorce or judicial separation and closely similar to those for proceedings for death to be presumed and a marriage to be dissolved.

In the field of recognition of foreign nullity decrees there are no provisions similar to those contained in the recognition of Divorces and Legal Separations Act 1971. That Act, which came into force on January 1, 1972, followed in time the decision of the House of Lords in Indyka v. Indyka [1969] 1 A.C. 33. The main relevant provisions are contained in section 3 and are to the effect that the validity of an overseas divorce or legal separation is to be recognized if either spouse was habitually resident in, or a national of, that country at the date of the institution of the proceedings in the country in which the decree was obtained. There is also a provision that the reference to habitual

residence is to be deemed to include a reference to domicile in relation to countries, the law of which uses the concept of domicile as a ground of jurisdiction in matters of divorce or legal separation.

In my judgment it is right for me to look to the speeches delivered in Indyka v. Indyka [1969] 1 A.C. 33 for guidance in determining the present jurisdictional issue and I consider that the guidance to be found there is fully sufficient to decide it. Mr. Holroyd Pearce submits that this is an incorrect approach because the House of Lords in that case was dealing only with the validity of a foreign divorce decree, and he argues that different considerations are relevant in relation to a nullity decree, which may have retrospective effect. I am unable to accept this argument for a number of reasons. In the first place, I can find nothing in the speeches in Indyka v. Indyka to suggest that similar reasoning would be inapplicable to the recognition of foreign nullity decrees. Secondly, although there is substance in the point that a nullity decree may have wider effects than a divorce decree, the English approach to jurisdiction in nullity has been relatively lax in comparison with that adopted in divorce. The history of this difference of approach is outlined and explained in the Law Commission Working Paper on Jurisdiction in suits for nullity of marriage, No. 38 (July 28, 1971), and need not be repeated here. At pp. 8 and 9 of the paper, the authors discussed the differences between void and voidable marriages and the effect of the Nullity of Marriage Act 1971 and then went on to say:

"But these differences between the two types of nullity seem to us to be irrelevant for the purposes of determining whether the English courts should have jurisdiction. That, as we have said, should depend on whether the parties have a sufficient connection with England for it to be proper for the English courts to make a decree. That connection cannot, as we see it, reasonably differ according to whether the decree is retrospective or prospective, declaratory or operative. And as the essential consequences of any nullity decree are identical with those of a divorce, the connection ought, in our view, to be the same as that required to afford jurisdiction in divorce."

I respectfully agree, and the Law Commission's specific recommendations were embodied in the Domicile and Matrimonial Proceedings Act 1973. I can see no basis, therefore, as a matter of general principle and apart from statutory provisions, for adopting more stringent tests in relation to the recognition of foreign nullity decrees than would be applied to divorce decrees, and no authority has been cited to me to compel me to do so. On the contrary, the principle enunciated by Lord Wilberforce in Indyka v. Indyka [1969] 1 A.C. 33 was applied by Bagnall J. in Law v. Gustin [1976] Fam. 155 to recognition of a foreign nullity decree, although he expressed some doubt as to the precise test to be applied. More recently, Sir George Baker, P. in Perrini v. Perrini [1979] Fam. 84, expressly agreed with the decision of Bagnall J. in applying the principles of Indyka to a decree of nullity.

The effect of Indyka v. Indyka was analysed by Ormrod J. in his judgment in the present petitioner's English nullity suit: see Messina v.

Smith [1971] P. 322. The judge had to consider the validity of a Nevada divorce obtained by the respondent's first wife and his commentary on Indyka v. Indyka is at pp. 331 to 337. In view of what Ormrod J. said in his judgment, I am reluctant to embark upon further citations from the speeches in Indyka v. Indyka, but it is necessary for me to do so because of their relevance to the present petitioner's own different circumstances in December 1971. I begin with Lord Reid [1969] 1 A.C. 33, 68:

"I think that the need would best be met by reviving the old conception of the matrimonial home and to holding that if the court where that home is grants a decree of divorce we should recognize that decree. In this matter I can see no good reason for making any distinction between the husband and the wife. If we recognize a decree granted to the one we ought equally to recognize a decree granted to the other. But if the husband leaves the matrimonial home and the wife remains within the same jurisdiction I think that we should recognize a decree granted to her by the court of that jurisdiction. I find much more difficulty in accepting the view that if a wife parts from her husband and goes to live by herself in a new jurisdiction, her residence there, whether for three years or any other period, must necessarily be accepted as sufficient to require us to recognize a decree granted to her. It would certainly be reasonable that, where such a wife is habitually resident within that jurisdiction and has no present intention of leaving it, we should recognize a decree granted to her there. But I do not wish to go further than that without fuller consideration in an appropriate case."

Lord Morris of Borth-y-Gest said at p. 75:

"Even if the decision in Travers v. Holley [1953] P. 246 was new law, I would consider that it was both reasonable and desirable. If a deserted wife may obtain a decree in England under the conditions laid down in 1937 (and now contained in section 40 (1) (a) of the Act of 1965), it seems to me to be reasonable to recognize a decree granted in another country in the exercise of a comparable jurisdiction. So also if jurisdiction is exercised in England on the basis of three years' residence by a wife if the conditions of section 40 (1) (b) are satisfied, it seems to me to be reasonable to recognize a decree granted to a wife in another country that accepts jurisdiction in similar circumstances. These significant statutory exceptions to the rules which previously adhered so closely to domicile as the basis and the only basis for jurisdiction would seem to justify if not to require recognition of decrees of dissolution granted in another country in the exercise of a jurisdiction similar to or, I would say, substantially similar to that exercised by the court in England. I would, therefore, approve the decision in Travers v. Holley [1953] P. 246. Nor do I see any reason why after the passing of the Law Reform (Miscellaneous Provisions) Act 1949, our courts should not recognize the decree of the Czech

court on the basis that though made before December 1949, it was made by the court of a country in which the wife had been ordinarily resident for three years. The issue which the judge tried in the present case was whether the husband had been free to marry in March 1959. In my view, he was free to marry because after December 1949, our courts were entitled to treat the Czech decree of January 1949, as having dissolved the husband's first marriage."

Lord Pearce also expressed approval of the ground of recognition accorded by Travers v. Holley [1953] P. 246 and went on to say at p. 90:

"On the facts of the present case I accept the view of the majority of the Court of Appeal that the marriage in 1959 was good although the Czechoslovakian divorce was granted in 1949, a few months before this country extended its jurisdiction by allowing resident wives to obtain divorce in our courts. The ground of recognition rests not on any exact measure of our own jurisdiction but on the wider ground of public policy in which our own jurisdiction is a most important element. The facts which made it right for our courts to have wider jurisdiction and give wider recognition existed at the date of the Czech decree even though those facts did not until a few months later result in the statute by which this country took wider jurisdiction. When once the appreciation of these facts has been brought home to our courts by parliamentary extension of their jurisdiction, their recognition should be retrospective. And if our courts were asked in 1959, at the date of the marriage, whether the husband was free to remarry, how could public policy tolerate the answer, 'No, because, although we have for 10 years been ourselves taking similar jurisdiction in such a case as this, we did not start to do so until a few months after the date of the Czechoslovakian decree'? In my opinion the question whether a foreign decree should be recognized should be answered by the court in the light of its present policy, regardless (within reason) of when the decree was granted."

Lord Wilberforce put the matter rather differently when he said, at p. 105:

"How far should this relaxation go? In my opinion, it would be in accordance with the developments I have mentioned and with the trend of legislation - mainly our own but also that of other countries with similar social systems - to recognize divorces given to wives by the courts of their residence wherever a real and substantial connection is shown between the petitioner and the country, or territory, exercising jurisdiction. I use these expressions so as to enable the courts, who must decide each case, to consider both the length and quality of the residence and to take into account such other factors as nationality which may reinforce the connection. Equally they would enable the courts (as they habitually do without difficulty) to reject residence of passage or residence, to use the descriptive expression of the older cases, resorted to by persons who

properly should seek relief here for the purpose of obtaining relief which our courts would not give."

Later at p. 106 he commented on Travers v. Holley [1953] P. 246 as follows:

"... I am unwilling to accept either that the law as to recognition of foreign divorce (still less other) jurisdiction must be a mirror image of our own law or that the place of recognition must be geared to the haphazard movement of our legislative process. There is no reason why this should be so, for the courts' decisions as regards recognition are shaped by considerations of policy which may differ from those which influence Parliament in changing the domestic law. Moreover, as a matter of history, it is the law as to recognition which has led and that as to domestic jurisdiction which has followed, and Parliament, by refraining from legislating as to recognition (as with minor exceptions it has done), must be taken to have approved this divergence. So I would not regard the Travers v. Holley rule as amounting to more than a general working principle that changes in domestic jurisdiction should be taken into account by the courts in decisions as to what foreign decrees they will recognize. If the principles of recognition of foreign decrees of divorce are placed on the more general basis which I have suggested (rather than being governed by the quasi-mathematical application in reverse of domestic legislation) I have no fears that uncertainty will be introduced into the law. The courts are well able to perform the task of examining the reality of the connection between the resident petitioner wife and the jurisdiction invoked, bearing in mind, but not being rigidly bound by, the developments of domestic jurisdiction. In so acting, I am convinced that they are more likely to reach just, and to avoid artificial, results."

Finally, for the sake of completeness, I should refer to the paragraph from the speech of Lord Pearson at p. 111:

"It seems to me that, subject to appropriate limitations, a divorce granted in another country on the basis of nationality or on the basis of domicile (whether according to English case-law or according to a less exacting definition) should be recognized as valid in England. Also if the law of the other country concerned enables a wife living apart from her husband to retain or acquire a separate qualification of nationality or domicile for the purpose of suing for divorce, and the jurisdiction has been exercised on the basis of that qualification, that would not, normally at any rate, be a reason for refusing recognition."

Lord Pearson expressed the view that there was difficulty about recognizing the validity in England of divorces granted in other countries on the basis merely of residential qualifications but he approved the Travers v. Holley [1953] P. 246 principle and concluded at p. 113:

"Such recognition should be given on two grounds. First, the Travers v. Holley principle should be applied as mentioned above.

Secondly, the divorce was granted in Czechoslovakia on the basis of the wife's proved Czechoslovakian nationality, and there was no lack of real and substantial connection with Czechoslovakia."

In the light of these speeches I am satisfied that I should hold that the Belgian court was a court of competent jurisdiction in the present case. By December 1971 the petitioner had been habitually resident in Belgium for over 18 months, and, on the majority view in Indyka v. Indyka [1969] 1 A.C. 33, it is right to apply the principle in Travers v. Holley [1953] P. 246 now, even though the Domicile and Matrimonial Proceedings Act 1973 did not come into force until just over two years after the commencement of the Belgian proceedings. Moreover, on a wider basis, the petitioner was habitually resident in Belgium in December 1971, with no present intention of leaving it, and she was a person with a real and substantial connection with that country. Although I have expressed doubts as to the validity of her allegedly retained Belgian nationality, she had been a Belgian national for the first 24 years of her life, she had lived more than half her life there, and all her family connections were with Deerlijk. She fulfilled amply, therefore, the qualifications suggested in each of the speeches in Indyka v. Indyka [1969] 1 A.C. 33, other than Belgian domicile in the English sense and possibly Belgian nationality.

It follows that it is unnecessary for me to make any finding on the additional argument for the petitioner that the Belgian court had jurisdiction on the basis of her independent domicile in Belgium in 1971 because she was asserting that the Smith marriage was void ab initio. Mr. Jackson has submitted that recognition should be accorded on this basis in view of the assumption by the English court of jurisdiction in like circumstances: see White (orse. Bennett) v. White [1937] P. 111 and De Reneville v. De Reneville [1948] P. 100; and he has referred to a decision of the Ontario Court of Appeal, In re Capon, Capon and O'Brien v. McLay (1965) 49 D.L.R. (2d) 675 in which a Nevada decree of nullity was recognized on this ground. It would be unwise of me to venture into this unattractive maze (see, e.g., Dicey & Morris, The Conflict of Laws, 9th ed. (1973), p. 367) and I am glad not to do so. I am comforted by the thought that the argument may now be obsolescent in view of the abolition in English law of a wife's dependent domicile since January 1974.

Was the Belgian judgment given in respect of a cause of action which had already, at the date when it was given, as between the parties, formed the subject of a decision by Ormrod J. in Messina v. Smith which is recognized under English law as final and conclusive?

The question whether the English rules of estoppel apply in matrimonial cases has been much debated in the past and the debate continues. In the present case, Mr. Ewbank, on behalf of the Attorney-General, rightly concedes that the decision of Ormrod J. in Messina v. Smith [1971] P. 332 was not a decision in rem, but he argues that, in the terms of article 3 (d) of the Convention of 1934, the decision was nevertheless final and conclusive. He submits, firstly, that Ormrod J. was

deciding the issue of the validity of the petitioner's Smith marriage, and that the petitioner could and should have raised before him the issue that she subsequently raised in the Belgian proceedings, namely, the absence of an intention by the parties to the marriage ceremony to cohabit. Mr. Ewbank suggests that, because she failed to do so, the rule of estoppel applies and the judge's decision is to be recognized as final and conclusive under English law. In this connection Mr. Ewbank points to the concluding words of the judgment of Ormrod J. [1971] P. 322, 339: "The respondent, therefore, was free to marry the petitioner in this case on August 11, 1954, and that marriage is a valid marriage."

Alternatively, and more narrowly, Mr. Ewbank argues that the decision of Ormrod J. was final and conclusive in England on the material issue, namely, lack of consent to the marriage. That issue was dealt with very fully in the part of the judgment that is not reported and it is useful to read here what Ormrod J. said:

"My conclusion, therefore, on this part of the case is that the petitioner did in fact know at the time of the ceremony on August 11, 1954 that it was a marriage ceremony, and that the purpose of it was to enable her to obtain British nationality and a British passport. In my judgment that is sufficient to dispose of her case on the first petition. It may well be that in the years which followed she did wonder from time to time whether it was a 'real' marriage and asked the Messina brothers whether she was 'really' married, and was told not to worry about it and that it was only a 'paper' marriage. In one sense it was an unreal marriage in that it was never intended that the normal relationship of husband and wife should be established between Mr. Smith and herself. But this cannot affect the question which I have to determine, namely, whether the marriage was, in law, a valid marriage. Where a man and a woman consent to marry one another in a formal ceremony, conducted in accordance with the formalities required by law, knowing that it is a marriage ceremony, it is immaterial that they do not intend to live together as man and wife. It is, of course, quite otherwise where one of the parties believes that the ceremony is something different, for example a formal betrothal ceremony as in Kelly v. Kelly (1933) 148 L.T. 143 and the cases there referred to, or as in Mehta v. Mehta [1945] 2 All E.R. 690, a ceremony of religious conversion. In such cases the essence of marriage, the mutual exchange of consents accompanied by the formalities required by law, is missing and such marriages are, therefore, void or perhaps voidable. On the other hand, if the parties exchange consents to marry with due formality, intending to acquire the status of married persons it is immaterial that they intend the marriage to take effect in some limited way or that one or both of them may have been mistaken about, or unaware of, some of the incidents of the status which they have created. To hold otherwise would impair the effect of the whole system of law regulating marriages in this country, and gravely diminish the value of the

system of registration of marriages upon which so much depends in a modern community. Lord Merrivale P. in Kelly v. Kelly, 148 L.T. 143, 144, said: 'In a country like ours, where the marriage status is of very great consequence and where the enforcement of marriage laws is a matter of great public concern, it would be intolerable if the marriage law could be played with by people who thought fit to go to a register office and subsequently, after some change of mind, to affirm that it was not a marriage because they did not so regard it.' See also the observations of Hodson J. in Way v. Way [1950] P. 71, 79, approved by the Court of Appeal in Kenward v. Kenward [1951] P. 124, 133 and Silver (orse. Kraft) v. Silver [1955] 1 W.L.R. 728. In these circumstances it is unnecessary, and, indeed, inappropriate to consider the submissions which counsel have made upon the hypothesis that the petitioner did not know that the ceremony was a marriage ceremony. The question whether in such circumstances the marriage is void or voidable, or whether it can be approbated, or whether some species of estoppel can operate to prevent its validity being attacked, must wait for another day. But, out of respect to the able and interesting arguments which have been addressed to me, I would make one general observation. The concept of marriage seems to be evolving from status towards contract, in accordance with Maine's generalisation, and recent changes in the law relating to divorce and matrimonial property may mark an acceleration of this process but it is not yet by any means complete. At this stage, therefore, the task of reconciling concepts arising from the law of contract, which are second nature to all common lawyers, with an institution which has not yet detached itself from its ancient roots in the quite different system of the canon law, is bound to be extremely difficult, particularly where words such as 'consent' are common to both systems, but may have different implications in each."

In response to the arguments on behalf of the Attorney-General, Mr. Jackson says that Ormrod J. was not asked to declare the Smith marriage valid and could not do so. He says further that an invalid marriage cannot be converted into a valid marriage by operation of the rules of estoppel, and he cites in support of his argument the judgment of Phillimore J. in Hayward v. Hayward (orse. Prestwood) [1961] P. 152: see also the decision of the British Columbia Supreme Court in Postnikoff v. Popoff (or Postnikoff) (1964) 46 D.L.R. (2d) 403, in which Wilson C.J.S.C. said, at p. 401, "I do not think that a marriage can be established by estoppel." In his second main submission, Mr. Jackson said that it is not accepted on behalf of the petitioner that Ormrod J. would have been bound to ignore Belgian law or that the petitioner would necessarily have failed if the issue as to a sham marriage had been argued before him. Thirdly, it is said that the petitioner was entitled to choose her forum to argue the latter issue: see Torok v. Torok [1973] 1 W.L.R. 1066. Finally, Mr. Jackson submits that both the cause of action and the issues before Ormrod J. were different from those before the Belgian court: the cause

of action in England were the respondent's alleged bigamy, lack of knowledge by the petitioner of the nature of the ceremony, and duress, whereas the cause of action in Belgium was a sham marriage. Although consent in a broad sense was in issue before both courts, it was a different classification or aspect of consent that was before the Belgian court.

I do not think that it would be right to apply article 3 (d) of the Anglo-Belgian Convention on the basis that Ormrod J. made a binding declaration of the validity of the Smith marriage. It is true that he did say in his judgment that the marriage was valid. In saying this, however, he was merely recognizing what had been said in a quite general sense by Viscount Dunedin in Salvesen (or Von Lorang) v. Administrator of Austrian Property [1927] A.C. 641, 662: "The judgment in a nullity case decrees either a status of marriage or a status of celibacy." It is clear from what I have said earlier in this judgment that the judge in Messina v. Smith [1971] P. 322 was fully aware that a binding declaration as to the validity of the Smith marriage could only be made in other proceedings.

One of the difficulties in considering the application of estoppel in the field of nullity is the uncertain status of the decision of the Court of Appeal in the bigamy case of Wilkins v. Wilkins [1896] P. 108 and that of Hill J. in Woodland v. Woodland (orse. Belin) [1928] P. 169. These decision were criticised by Phillimore J. in Hayward v. Hayward (orse. Prestwood) [1961] P. 152, and he expressed a preference for the line of cases stemming from Miles v. Chilton (1849) 1 Rob. Eccl. 684. A helpful discussion of the history of these cases, and of the conflict, by Mr. Dimitry Tolstoy Q.C., is to be found in his article in (1968) 84 L.Q.R. 245. Most recently there has been reference to the judgment in Hayward in Rowe v. Rowe [1980] Fam. 47, in which both Orr L.J. and Sir Stanley Rees referred to Hayward because it had been prayed in aid in argument on behalf of the Official Solicitor. However, Rowe was a case of issue estoppel rather than cause of action estoppel, and the major effect of it is that the decision in Lindsay v. Lindsay [1943] P. 162 has been disapproved. It does not appear that the correctness and limits of the decision in Hayward were directly in point but, in view of the approving references to that decision, it would be unsafe for me to base my decision in the present case on the authority of Wilkins [1896] P. 108 and Woodland [1928] P. 169, and I do not regard it as necessary to do so.

I will confine myself, therefore, to two comments on Hayward v. Hayward [1961] P. 152 that are relevant for my purposes. The first is that, according to the later section of the judgment, the issue of estoppel did not truly arise - see p. 161 - and the factual background of the case was very different from the present one. Secondly, I do not consider that the concept of a marriage void ipso jure or void ab initio, in the sense that a bigamous marriage is void, can usefully be applied to consideration of the Smith marriage in English law in the widest sense. One has only to read the passage in the judgment of Ormrod J. in Messina v. Smith that I have most recently quoted to see how inappropriate the analogy of a bigamous marriage would be.

Approaching this case from first principles, I think that it is useful to begin with the statement of Denning L.J. in Thompson v. Thompson [1957] P. 19, 29:

"The question in this case is, however, whether those ordinary principles do apply to the Divorce Division. The answer is, I think, that they do apply, but subject to the important qualification that it is the statutory duty of the divorce court to inquire into the truth of a petition - and of any countercharge - which is properly before it, and no doctrine of estoppel by res judicata can abrogate that duty of the court. The situation has been neatly summarized by saying that in the divorce court 'estoppels bind the parties but do not bind the court': but this is perhaps a little too abbreviated. The full proposition is that, once an issue of a matrimonial offence has been litigated between the parties and decided by a competent court, neither party can claim as of right to reopen the issue and litigate it all over again if the other party objects (that is what is meant by saying that estoppels bind the parties): but the divorce court has the right, and indeed the duty in a proper case, to reopen the issue, or to allow either party to reopen it, despite the objection of the other party (that is what is meant by saying that estoppels do not bind the court). Whether the divorce court should reopen the issue depends on the circumstances. If the court is satisfied that there has already been a full and proper inquiry in the previous litigation, it will often hold that it is not necessary to hold another inquiry all over again: but if the court is not so satisfied, it has a right and a duty to inquire into it afresh. If the court does decide to reopen the matter, then there is no longer any estoppel on either party. Each can go into the matter afresh."

Much of the discussion in the cases of the application of estoppel in the matrimonial jurisdiction has turned on the inquisitorial function of the court in that jurisdiction, but, if reliance on an issue estoppel does not interfere with any inquisitorial function of the court, the ordinary rules as to issue estoppel will apply even in the matrimonial jurisdiction: see e.g. Conradi v. Conradi (1868) L.R. 1 P. & D. 514. Moreover, in general, in cases where the estoppel merely has the effect of preventing a party who was unsuccessful in the first litigation from bringing forward the allegation again in later proceedings, it may rarely conflict with any inquisitorial function: see e.g. Bright v. Bright [1954] P. 270.

I am unable to accept in the present case that reliance upon estoppel between the parties to the first English proceedings in relation to the issue of consent to the marriage in subsequent English proceedings would conflict with any inquisitorial function of the court. That function in nullity derives from the principles on which the ecclesiastical courts acted prior to the Divorce and Matrimonial Causes Act 1857, whereas the duty to inquire in divorce is now defined by section 1 (3) of the Matrimonial Causes Act 1973; but the effect is substantially the same in both jurisdictions. There is no conflict of public policy here of the kind that frequently arises when estoppel is considered in relation to ancillary proceedings: see Ormrod J. in Porter v. Porter [1971] P. 282, 284. If

there is conflict at all, I consider that the balance of advantage rests heavily in favour of the application of estoppel if the rules, properly interpreted, may be applied.

In the present case the court is concerned with cause of action estoppel rather than issue estoppel, to use the helpful distinction that has been developed in recent times. The relevant cause of action before Ormrod J. was lack of consent, of which the petitioner's lack of knowledge of the nature of the ceremony and the alleged duress to which she was subject (an allegation that was eventually abandoned), were merely facets or issues. It was for this reason that Ormrod J. dealt with the issue of consent so fully in his judgment. Again, before the Belgian court the cause of action was lack of consent and the decision of the court was founded on a statutory provision dealing with consent in the most general terms. Article 146 of the Belgian Civil Code reads, in translation:

"No marriage exists where there is no consent. The absence of any consent, which is an essential element to a marriage, results in the marriage being absolutely void, a claim which may be invoked by either of the two parties."

The alleged lack of intention to cohabit was merely a facet or issue to be considered in deciding whether or not there was consent.

It follows that I am unable to accept Mr. Jackson's submission that the Belgian court was concerned with a distinct and separate cause of action. I have, of course, considered carefully Mr. Jackson's own suggested classification of the different aspects of consent in his book The Formation and Annulment of Marriage, 2nd ed. (1969), pp. 274 to 305, and the structure of English nullity law both before and since the enactment of the Nullity of Marriage Act 1971. Equally, I have in mind the continuing debate as to the correctness of rule 35 in Dicey & Morris, The Conflict of Laws, 9th ed. (1973), p. 275, which states: "No marriage is (semble) valid if by the law of either party's domicile one party does not consent to marry the other." It is sufficient for me to say that consideration of the structure strengthens, in my judgment, rather than weakens the conclusion that the petitioner's relevant cause of action in both England and Belgium was the same, namely, the absence of consent to marry.

In order to decide whether or not cause of action estoppel applies in the present case I have to consider whether the petitioner could and should have raised the sham marriage issue on the basis of Belgian law in the proceedings before Ormrod J. It is necessary, therefore, for me to refer to the oft-quoted dictum of Sir James Wigram V.-C. in Henderson v. Henderson (1843) 3 Hare 100, 115:

"The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

This dictum has been criticised in some of the recent cases. Thus, Orr L.J. said in Rowe v. Rowe [1980] Fam. 47, that it was too widely stated, and Lord Wilberforce, in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853, 965, said of it that it was a decision of a colonial court and a simple example of a cause of action estoppel. However, in that case Lord Wilberforce was concerned with the limits of issue estoppel rather than cause of action estoppel, and in the same case, Lord Upjohn said, at p. 946, in relation to cause of action estoppel:

"Res judicata itself has two branches: (1) cause of action estoppel - that is where the cause of action in the second case has already been determined in the first. To such a case the observations of Wigram V.-C. in Henderson v. Henderson, 3 Hare 100 apply in their full rigour. These observations have been so often approved in your Lordships' House that I will not repeat them."

I am fully satisfied that the Henderson v. Henderson principle should be applied in the present case, whether or not its application should be restricted in other cases. All the material facts were before the English court and the reality of the marriage in the light of those facts was considered fully by Ormrod J. All that was lacking was an argument on behalf of the petitioner, on the basis of the law of her ante-nuptial domicile, that the marriage was void for lack of an intention by the parties to cohabit and a decision on that argument was fundamental to the judgment given on the question of consent. Furthermore, the nature of the argument must have been in the minds of some, at least, of the petitioner's legal advisers because her Belgian petition was filed whilst an appeal to the Court of Appeal here was still pending.

I do not regard my conclusion as in conflict with Torok v. Torok [1973] 1 W.L.R. 1066 or infringing in any way the principle that the English court will not, in general, go behind the judgment of a foreign court and consider its reasoning: see, for example, Pemberton v. Hughes [1899] 1 Ch. 781. Here, I am concerned with the strict application of article 3 (d) of the Convention of 1934 and the rules of res judicata in English law. I have sought to give the words "cause of action" in that article an interpretation that is appropriate in the sphere of nullity and that conforms with English decisions in the field of res judicata; and it matters not, in my judgment, that many of those decisions post-date the Convention.

Finally, on the interpretation of article 3 (d), it has not been suggested in argument before me that there was any relevant difference between the parties before the Belgian court and those before the English court. The proceedings in England and Belgium were between the petitioner, the respondent, and Salvatore Messina, and the role of the public prosecutor in the Belgian proceedings was similar to that of amicus curiae. As Professor Rigaux explained in his evidence before me, the public prosecutor would not initiate proceedings in Belgium to annul a sham marriage where the purpose of the marriage was the acquisition by a Belgian of foreign nationality because the question of Belgian public policy would not be involved in those circumstances.

Before leaving this part of the case, I should say that I do not consider that it would be appropriate for me to speculate as to what conclusion Ormrod J. might have reached if the argument based on Belgian law had been put to him, or as to what might have happened in the event of an appeal. Substantial argument has been addressed to me on this question on behalf of each of the parties to the present proceedings but I do not consider that it is either necessary or desirable for me to prolong this judgment by comment upon rules 34 and 35 in Dicey & Morris, The Conflict of Laws, 9th ed. (1973) pp. 258 et seq. and 275 et seq. in relation to consent, or upon the relevance and applicability of the much criticised rule in Sottomayer v. De Barros (No. 2) (1879) 5 P.D. 94.

The question of public policy

In view of my conclusion on the application of article 3 (d) of the Convention of 1934 it is clear that the petitioner's second petition must be dismissed. If her Belgian decree is not entitled to be recognized, and the question of her consent to the marriage is res judicata in English law, there can be no basis for a finding that her marriage to Eugenio Messina is valid in English law. The application of article 3 (c) of the Convention raises separate and difficult questions, and I do not think that it would be helpful for me to attempt to resolve them in the present circumstances. If the case proceeds further, an appellate court will not require further findings from me. Insofar as Belgian law may he relevant, however, I should say that I found Professor Rigaux to be an impressive and authoritative witness.

In the course of the interrupted hearings of the case, considerable argument has been addressed to me on the issue of English public policy and its relevance to recognition of the Belgian decree. I will, therefore, say something briefly about the nature of the argument in deference to the submissions of counsel, before concluding this judgment.

There is clearly a direct conflict of policy between the English courts and the Belgian courts in relation to the validity of a marriage between parties who do not intend to cohabit. The Belgian approach, and that of a number of other countries, is that it is contrary to its public policy that a foreigner should be permitted to obtain the benefit of its nationality by going through a ceremony of marriage with one of its nationals when there is no intention by the parties to cohabit. This approach has been developed in a number of European decided cases, to which Professor Rigaux has referred (see also Jackson, The Foundation and Annulment of Marriage, 2nd ed. (1969), p. 292); and in Belgium it has evolved in judicial decisions on article 146 of the Civil Code, which I have read earlier, rather than in any more specific statutory provision. The same rule is applied where a Belgian national marries a foreigner with a view to acquiring a foreign nationality, but in that case public policy is not involved.

In England our rules have been developed from a different starting point. We have emphasized the sanctity of the marriage bond freely entered into with due formality and have not been prepared to accept

that private reservations nullify the consequences that flow from the marriage ceremony. On this point I would not wish to add what Ormrod J. has said in Messina v. Smith [1971] P. 322.

The fact that this conflict exists does not lead inevitably to the conclusion that to recognize the Belgian decree in the present case would offend against English public policy. What is decisive is the criterion of policy which is to be applied to recognition of a foreign decree. In the present case, Mr. Jackson argues that the test is simply whether the Belgian decree offends English notions of substantial justice. He says with force that the application of public policy in this field should not now be extended: in relation to the recognition of foreign decrees, particularly those of neighbouring countries, the categories of grounds of non-recognition based on public policy should be regarded as closed, or virtually closed. In his submission the Maltese cases, such as Gray (orse. Formosa) v. Formosa [1939] P. 259, are in a special compartment and have no relevance by analogy to the present case.

I agree with Mr. Jackson that, at least on a narrow view, the concept of a marriage being void because the parties do not intend to cohabit might not be regarded as offending English notions of substantial justice. It is a concept recognized in a number of highly civilized countries - see, for example, the Scottish decision in Orlandi v. Castelli, 1961 S.C. 113 - and might be said to be analogous to impotence and wilful refusal to consummate in relation to the validity of marriage. In my opinion, however, Mr. Jackson's argument does not dispose of the public policy issue. One aspect of it, which was touched upon in the judgment of Ormrod L.J. in Quazi v. Quazi [1980] A.C. 744, is whether the interpretation of public policy is to be restricted in the way that Mr. Jackson suggests. The wording of article 3 (c) of the Convention of 1934 is similar to that now to be found in section 8 (2) (b) of the Recognition of Divorces and Legal Separation Act 1971. It remains to be decided hereafter whether "public policy" in both statutory provisions embraces a wider notion than that of substantial justice in English eyes. If it is akin to the French concept of "ordre publique," it may have wider connotations.

In the present case it has been argued on behalf of the Attorney-General and the Messina interest that English public policy dictates that the Belgian decree should not be recognized. Part of the argument against recognition has been based on the history of the petitioner's conduct and intentions from 1954 onwards, to which I have referred in sufficient detail at the outset of this judgment, and Mr. Holroyd Pearce has included in his argument a suggestion that the petitioner's approbation of the Smith marriage should be regarded as a bar to both her present petitions. It is suggested that to grant the declarations prayed for would offend English views of substantial justice in the light of the petitioner's conduct, and that she should not be enabled, therefore, to establish a right to immovable property in England by the avenue of recognition of the foreign decree.

On a wider basis, Mr. Ewbank has argued that it is contrary to the public policy of all civilized countries that foreign prostitutes and other

undesirable aliens should make use of the marriage laws to contract sham marriages in order to obtain a nationality with a view to enabling them to pursue criminal activities and avoid deportation. He suggests that this view is reflected specifically in the marriage law of Belgium and some other countries in the particular way that I have indicated, whereas in England the question remains one of public policy because there is no specific provision in our marriage laws dealing with the point. Our marriage laws, in general, refuse to allow parties to a sham marriage of the relevant kind to avoid it. Mr. Ewbank argues, therefore, that it would be contrary to English public policy to allow the parties to obtain elsewhere a release recognized here when such a release could not be obtained by the parties in this country.

For my part, I doubt whether the application of public policy in this case should be decided by reference to the petitioner's conduct as a prostitute, her avoidance of deportation or the manner in which she has conducted the various phases of her nullity proceedings. There is, however, the crucial wider issue that arises from the differing attitudes of the English and Belgian courts to sham marriages generally, and my instinct suggests that the application of public policy may have to be decided ultimately on the basis of our different rules for the acquisition by a spouse of British nationality. The different British approach to acquisition of nationality is well illustrated here by the fact that the petitioner will remain a British national unless and until she is divested of that status by a separate procedure, whether or not her Smith marriage is declared or recognized to be void ab initio. The rationale of the Belgian view would appear, therefore, to be inapplicable in this country, and, in Belgium itself, the acquisition by a Belgian national of a foreign nationality does not raise directly any question of public policy for its courts.

Solicitors: Theodore Goddard & Co.; Lieberman, Leigh & Co.; Treasury Solicitor.

APPEAL from Waterhouse J.

The petitioner appealed by notice dated June 15, 1979, on the grounds that the judge misdirected himself or was wrong in law (1) in holding that it was not open to the petitioner to petition for recognition of the Belgian judgments under R.S.C., Ord. 15, r. 16; (2) in holding that the petitioner's only remedy was to petition for a declaration of validity of marriage under section 45 of the Matrimonial Causes Act 1973; (3) in holding that the Ghent Court of Appeal found that the Belgian courts were not bound by the decision of Ormrod J. in Messina v. Smith [1971] P. 322; (4) in holding that the judgment of Ormrod J. estopped the petitioner from asserting that her marriage to the respondent was null according to Belgian law on grounds other than those relied on before Ormrod J.; (5) in holding that the petitioner's cause of action in respect of the 1954 marriage was the same in England and Belgium, namely absence of consent; (6) in holding that in applying the Convention of

1934 he had a discretion to grant or withhold recognition of a Belgian judgment; and (7) in failing to distinguish between principles governing recognition of a foreign judgment governed by international treaty and one not so governed.

Joseph Jackson Q.C. and Mathew Thorpe Q.C. for the petitioner.

Ian Karsten for the first intervener.

Anthony Hollis Q.C. and Nicholas Wilson for the second intervener.

July 8, 1980. SIR JOHN ARNOLD P. read the following judgment. The petitioner was born in Belgium with a domicile of origin there and on August 11, 1954, went through a ceremony of marriage in London with the respondent who was a domiciled Englishman. There was an issue before the judge whether the petitioner retained here domicile of origin up to the date of this ceremony. The judge decided that she did, and no issue has been raised before this court upon that matter. On March 12, 1970, the petitioner went through a ceremony of marriage at San Remo, Italy, with Eugenio Messina who died on the same date leaving estate, including landed estate, in England, to which or to a share in which the petitioner is entitled only if her marriage to Messina was valid.

The petitioner, in proceedings commenced in the Family Division by petition dated May 29, 1970, claimed a declaration of nullity on the ground that she did not effectively consent to the 1954 ceremony as a marriage ceremony through various causes of ignorance, misunderstanding and duress. In that proceeding there intervened Salvatore Messina, a brother of Eugenio, and a person claiming to be entitled to, or to a share in, the estate of Eugenio Messina if the latter's purported marriage to the petitioner was invalid.

On May 7, 1971, the petition was dismissed by Ormrod J. who held that the petitioner did know that the 1954 ceremony was a marriage ceremony and that she had consented to it: see Messina v. Smith [1971] P. 322. On the same date, Ormrod J. dismissed a further petition for nullity dated November 6, 1970, which had been filed by the petitioner claiming that the 1954 marriage was bigamous on the ground that a previous marriage of the respondent had not been dissolved, a matter which requires no further mention in this judgment. The petitioner appealed from those dismissals but on March 7, 1972, her appeal was dismissed by consent.

On December 6, 1971, the petitioner started proceedings in the court of first instance at Kortrijk, Belgium, claiming a declaration that the marriage contracted between herself and the respondent on August 11, 1954, was nullified ab initio. The grounds which she put forward were in the alternative first that she never intended to contract a marriage with the respondent at all or, secondly, that the marriage contracted with the respondent was only a mock marriage, purely a formality, unaccompanied by any intention to live together and contracted for the purpose of her acquiring British nationality in order to avoid being

deported from England. In that proceeding the respondent admitted the allegations put forward in the petitioner's second alternative plea. Salvatore Messina intervened in the Kortrijk proceedings to dispute the relief claimed on the alternative grounds that the matter had already been decided by the judgment of Ormrod J. or that the matter fell to be decided in accordance with English law with the same conclusion as that which Ormrod J. had reached.

The Kortrijk court on June 9, 1972, gave judgment for the relief claimed by the petitioner. In so doing they rejected the intervener's claim that the judgment of Ormrod J. constituted a res judicata, on the ground that Belgian law recognized for the purposes of res judicata only those foreign judgments which altered the status of persons, and not those which refused so to do. They rejected the petitioner's plea that she had not consented to the ceremony of her marriage to the respondent through any want of knowledge, but upheld her plea based on the allegation of a mock marriage, saying that a marriage is valid in Belgian law only if each of the parties satisfies the conditions which their personal status imposes, namely, in the case of the petitioner, an intention to form a community of life.

Salvatore Messina appealed from this decision to the Court of Appeal at Ghent on August 30, 1972. On April 27, 1973, the Court of Appeal at Ghent dismissed the appeal. They held that the ground advanced by the petitioner of a want of consent through lack of knowledge was barred by the res judicata afforded by Ormrod J.'s judgment, but that this res judicata did not extend to the mock marriage point because that had not been argued before Ormrod J., and they upheld the latter point because consent to such a marriage did not amount to a real consent and in the absence of such a consent the marriage did not exist according to Belgian law. There has been no appeal from the decision of the Court of Appeal at Ghent. Insofar as it is relevant to consider the ratio decidendi of the Belgian courts it must in my view be the ratio adopted by the Court of Appeal in Ghent rather than that adopted by the court of first instance at Kortrijk which demands consideration.

By a petition in the Family Division dated September 7, 1973, the petitioner claimed a declaration that the decree of the Kortrijk court was entitled to be recognized. Again Salvatore Messina intervened. He denied that the Kortrijk decree was entitled to recognition and relied on the decision of Ormrod J. as conclusively determinate of the validity of the marriage of the petitioner and the respondent, saying that the petitioner was estopped from challenging that validity. He further denied the competence of the Kortrijk court and disputed the recognition of the Kortrijk decree on the ground that it was based upon Belgian public policy which was contrary to English public policy on the same matter. He also put forward the assertions that the marriage between the petitioner and the respondent was contracted on the basis of English law and that the petitioner, having approbated that marriage, was not entitled to the relief claimed.

In the course of the hearing of that petition before Waterhouse J., the question arose whether the relief claimed could or would be granted

by the court having regard to the discretionary nature of the jurisdiction to grant declarations under R.S.C., Ord. 15, r. 16, and the existence of a specific jurisdiction under section 45 of the Matrimonial Causes Act 1973 to grant declarations of the validity of a petitioner's marriage, in the light of the circumstance that the underlying object of the petitioner was to establish the validity of her marriage to Eugenio Messina. As a result the petitioner asked for, and was granted by order dated March 22, 1979, leave to file a further petition under section 45 and for the consolidation of that petition when filed with the pending cause, which had been commenced by the petition dated September 7, 1973.

The new petition was filed on April 20, 1979, and in it the petitioner asserted that the decree of the Kortrijk court and the judgment of the Court of Appeal of Ghent were a valid decree and judgment declaring the ceremony of marriage to the respondent null and void ab initio and were entitled to recognition in this country, and further asserted that her marriage to Eugenio Messina was a lawful marriage subsisting at his death.

Salvatore Messina having died, Attilio Messina was substituted for him as intervener in the petition dated September 7, 1973, with effect from August 30, 1977, and Attilio Messina intervened also in the petition dated April 20, 1979, on behalf in each case of all those interested in the estate of Eugenio Messina on the footing that the latter's marriage to the petitioner was invalid.

Waterhouse J. delivered judgment in both petitions on May 8, 1979, and dismissed them both. He noticed the respondent's British nationality throughout his life and held him to have had an English domicile at the date of his marriage to the petitioner on August 11, 1954. He referred to the petitioner having lived in England for about nine years after the date of that marriage, carrying on the trade of a prostitute, with many convictions in that trade. He held that she had applied in September 1954 for registration as a citizen of the United Kingdom and Colonies in reliance on having married such a citizen and was duly registered as a citizen on September 23, 1954, and that she had shortly afterwards obtained, and thereafter until at least June 1970 held, a British passport which was renewed in 1965 on her representation that she had retained her citizenship. The judge held that the petitioner had retained her Belgian domicile until her marriage to the respondent. He held that the court had jurisdiction to make the declaration sought by the first current petition because the respondent was resident in England at the date of the petition, but that he had a discretion whether or not to exercise that jurisdiction, and in that discretion he decided not to do so. He accordingly dismissed the first petition.

In my view the judge was quite right to take that course. There is no doubt that the purpose of the petitioner in seeking the declaration which she sought by the first petition was that of establishing the validity of her marriage to Eugenio Messina. There is no doubt that the procedure under section 45 of the Matrimonial Causes Act 1973 was available to her for that purpose. There is no doubt that the jurisdiction to grant declarations under R.S.C., Ord. 15, r. 16 is in general a

discretionary jurisdiction. It is argued on behalf of the petitioner that if, as is her claim, the court is obliged by a convention having binding force to give recognition to the Belgian decree, this involves an obligation to make a declaration giving such recognition under Ord. 15, r. 16, so that in the relevant context the jurisdiction ceases to be discretionary. I do not think that this is so. Any such obligation to afford recognition is in my judgment limited to the affording of such recognition by whatever may be the due process of law. The jurisdiction therefore, in my view, remains discretionary. Having regard to the special safeguards and provisions applicable to the obtaining of a declaration of validity of marriage under section 45 of the Act of 1973 imposed by section 45 (6) and (7) and rule 109 of the Matrimonial Causes Rules 1977, it seems to me to be an entirely valid ground for exercising the discretion against making under Ord. 15, r. 16 a declaration designed to achieve a purpose which could be achieved by section 45, that the court will thereby ensure submission to the special safeguards and provisions to which I have referred.

The judge approached the question whether relief should be granted on the second petition on the basis of an agreement between the parties that the recognition of Belgian decrees in this country was governed by the provisions of the Convention dated May 2, 1934, between Belgium and Great Britain and Northern Ireland for the Reciprocal Enforcement of Judgments in Civil and Commercial Matters: see the Schedule to the Reciprocal Enforcement of Foreign Judgments (Belgium) Order in Council 1936 (S.R. & O. 1936 No. 1169).

Before considering the terms of that Convention, it is relevant to observe that in this court the validity of the marriage between the petitioner and the respondent falls to be determined by reference to English law. The petitioner had a Belgian domicile immediately before marriage, and the respondent an English domicile. In those circumstances, according to declared law binding upon this court, the lex loci celebrationis, that is the law of England, applies to determine the validity of the marriage: see Sottomayer v. De Barros (1877) 2 P.D. 81 and Sottomayer v. De Barros (No. 2) (1879) 5 P.D. 94 and Ogden v. Ogden (orse. Philip) [1908] P. 46. In a situation in which there is a judgment of the High Court of this country deciding the matter according to English law in one sense and a judgment of a foreign court deciding the matter by reference to foreign law in an opposite sense, there can in my judgment be nothing in the common law of this country to require a subsequent court here, recognizing that English law applies, to give recognition to the foreign judgment in preference to the English judgment. Thus it is only if recognition is required by statute or by an instrument having statutory force that the opposite result will follow.

The question of recognition of the Belgian decrees in this case was decisive in the judge's approach to the question raised by the second petition because all the parties approached the matter on the basis that the validity of the petitioner's marriage to Eugenio Messina turned upon the validity in March 1970, according to English law including English private international law, of the 1954 marriage. It was not pleaded, nor

was it argued, either before Waterhouse J. or in this court, that the validity of the 1970 marriage was governed by Italian law, nor was there any evidence of Italian law to indicate whether it would accord retrospectivity to the Belgian decree which it has now recognized, or whether, if it did not, it would by the application of the doctrine of renvoi, whether based on the lex loci celebrationis or on the husband's nationality or otherwise, have resorted to the English law for its conclusion as to the validity of the marriage between the petitioner and the respondent.

The Convention provides in article 3 (1) that judgments in civil and commercial matters given by any such court as the court at Kortrijk or the court at Ghent shall, in the courts of the territory of the other party, in casu the courts of this country, be recognized in all cases where no objection to the judgment can be established on any of the enumerated grounds which include:

"(a) In the case in question the jurisdiction of the original court is not recognized under the rules of private international law with regard to jurisdiction observed by the court applied to; ... (c) The judgment is one which is contrary to the public policy of the country of the court applied to; (d) The judgment is in respect of a cause of action which had already at the date when it was given, as between the same parties, formed the subject of another judgment which is recognized under the law of the court applied to as final and conclusive; ..."

In this court some reference was made to the question whether a matrimonal matter such as that arising in the present case is comprehended within the description of "civil and commercial matters" so as to make article 3 of the Convention applicable at all, but in view of the fact that in article 4 (3) (a) it was thought necessary to exclude from the operation of article 4 (1) judgments in matters of family law or status, in my view, in the absence of any comparable exclusion in article 3 the correct conclusion is that article 3 is apt to extend to matrimonial matters.

The judge held, as regards exception (a), that the Kortrijk court was to be recognized as a court of competent jurisdiction under the English rules of private international law. He considered this matter principally against the background provided by the fact that the petitioner was, at the date of her invocation of the Belgian jurisdiction, living in Belgium and had a real and substantial connection with that country, and in reliance upon the decision of Indyka v. Indyka [1969] 1 A.C. 33 and the extension of the principle of that decision from divorce to nullity by Law v. Gustin (formerly Law) [1976] Fam. 155 and Perrini v. Perrini [1979] Fam. 84, he held that the Belgian court was of competent jurisdiction. In my view Law v. Gustin and Perrini v. Perrini were decided correctly and I come to the same conclusion as Waterhouse J. for the same reason.

The question of public policy, mentioned in exception (c) of article 3 (1) has been argued in this court under a number of heads. It has been

suggested that the Belgian judgment was one which was contrary to the public policy of this country because of the conduct of the petitioner in having relied upon the valid existence of the marriage, which she sought to have declared void, for the acquisition of British nationality and the protection which that afforded her from the deportation which might otherwise have ensued as a consequence of her multifarious convictions. As regards this head of argument it does not seem to me possible to reject recognition of a foreign decree on the ground of public policy merely because the person who obtained that decree has behaved with impropriety in relation to the subject matter of the decree; rather must any such ground of rejection be based upon the intrinsic character of the decree or of the foreign law applied in it as being offensive to some principle of policy favoured in this country. It is however also argued that these conditions are fulfilled since, it is said, the impugning of the validity of a marriage on the ground that the parties consenting to it did not intend that it would constitute any real marital relationship is contradictory of the policy of this country which regards as unacceptable the uncertainty which would flow from the possibility that a marriage, apparently valid according to all external appearance, could be invalid because of some secret reservation. Certainly such a conception is entirely foreign to English law but I am not persuaded that it is so offensive to English conceptions of propriety as to justify the view that a foreign judgment based upon it must be refused recognition as contravening the public policy of this country. In my judgment, therefore, exception (c) does not operate.

Exception (d) involves a conception closely akin to the English doctrine of estoppel per rem judicatam but it is not a provision which makes that doctrine applicable to the question to be decided. The language of the exception raises a number of issues which in my judgment require to be examined in relation to the terms by which they are raised. It is not in doubt that the judgment of the Belgian court was a judgment between the same parties as were parties to the decision of Ormrod J. and it is not in doubt that the latter is recognized in English law as final and conclusive. The question is whether the Belgian judgment was in respect of a cause of action which formed the subject of the judgment of Ormrod J.

The cause of action before Ormrod J. was the claim of the petitioner to a declaration that the marriage celebrated between her and the respondent was null and void, and the cause of action in the petition to the Kortrijk court was the petitioner's claim to a declaration that the same marriage was nullified ab initio. Thus described, it appears to me that the two causes of action are the same. It is true that in deciding whether or not to grant the declaration asked for, the English court did not have to consider the question whether the petitioner's consent to a purely formal marriage was in truth a consent at all, but was able to confine its attention to the question whether the petitioner in fact consented to the marriage such as it was and was able to refuse the declaration on the ground, decided by the Belgian court in the same sense, that she had so consented. This did not however, in my judgment,

make the cause of action a different cause of action and I do not consider it necessary to come to a conclusion as to the extent to which the doctrine of Henderson v. Henderson (1843) 3 Hare 100 operates in relation to such a case as this. If it were necessary so to do my conclusion would be that that principle does operate so as to apply the estoppel not only to the point upon which the court was required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation and which might with reasonable diligence have been brought forward. In Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853, 946, Lord Upjohn said that the observations in Henderson v. Henderson applied in their full rigour to cause of action estoppel and, if that were the matter under consideration as distinct from an analogous provision in a convention of binding statutory force, my view would be that that dictum should be applied so as to comprehend within the estoppel the point which might have been brought forward by the petitioner before Ormrod J. that Belgian law should be applied to the validity of the marriage between the petitioner and the respondent and that this should have been declared void for want of a consent to a real marriage. In my judgment therefore the exception (d) operates to take the case out of the ambit of article 3 of the Convention of 1934, so that if this is the instrument governing the recognition of the Belgian decree it would not operate to require any such recognition.

In this court there has been some resiling from the agreement that the Convention rules the matter of recognition and alternative arguments have been based on the provisions of the Foreign Judgments (Reciprocal Enforcement) Act 1933. Part I of the Act has no direct application to the recognition of foreign judgments; that subject is dealt with in section 8 which is not framed so as to yield up its meaning easily or quickly. Section 8 (1) provides that a judgment to which Part I of the Act applies, or would have applied if a sum of money had been payable thereunder, whether it can be registered or not and whether, if it can be registered, it is registered or not, is to be recognized in any court in the United Kingdom as conclusive between the parties thereto in all proceedings founded on the same cause of action. Part I applies to any judgment of a superior court of a foreign country if it is final and conclusive as between the parties thereto and there is payable thereunder a sum of money (of a non-fiscal and non-penal nature) and it is given after the coming into operation of the Order in Council directing that Part I shall extend to the foreign country concerned. The Order in Council extending the Act to Belgium came into operation on November 26, 1936. Since the requirement that a sum of money should be payable thereunder is eliminated for recognition purposes by the language of section 8 (1) which also makes it irrelevant to consider registrability, all that is needed to require a judgment to be recognized in the terms of that section is, in my judgment, that it shall be of a superior court and final and conclusive as between the parties thereto. If the Belgian decree was a judgment within the meaning of the Act it is therefore to be recognized under and subject to the provisions of section 8.

A judgment is defined in section 11 (1) as meaning a judgment given in any civil proceedings and a question has arisen whether civil proceedings extend to embrace matrimonial proceedings. However, by section 11 (2) the expression "action in personam" is to be deemed not to include matrimonial proceedings. This phrase occurs only in section 4 (2) of the Act, in a context in which the deemed exclusion would be altogether unnecessary if a judgment did not comprehend a judgment in matrimonial proceedings and, in my view therefore, the Belgian decree comes within the ambit of recognition under section 8. Section 8 (2) excludes from the operation of the section any judgment which has not been registered but in respect of which it is shown that if it had been registered the registration would have been set aside on an application for that purpose on some ground other than the altogether irrelevant ground specified in paragraph (a) of subsection 2. The setting aside of registered judgments is dealt with in section 4 (1) of the Act and that subsection provides under paragraph (b) that the registration of a judgment may be set aside if the registering court is satisfied that the matter in dispute in the proceedings in the original court had previously to the date of the judgment in that court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter. In my judgment the matter in dispute in the proceedings in Kortrijk and Ghent (the original court for the purposes of section 4 (1)) was the subject of Ormrod J.'s judgment, namely the question of the right to have the marriage between the petitioner and the respondent declared void, and accordingly in my view the registration of the Belgian decree, if registrable, could have been set aside under section 4 (1) (b) of the Act. Moreover, in my judgment the discretion imported into the jurisdiction to set aside the registration by the use of the permissive "may" would have been exercised so as to set it aside because an English court in exercising that discretion would be moved so to do by the circumstance that the registered judgment was based on foreign law in a context in which the English court recognized English law as governing the case and English law had been the basis of the previous conflicting English decision.

Accordingly in my judgment there is no basis for holding that the Belgian decree is binding on the English court or that the 1954 marriage between the plaintiff and the respondent was invalid. Since this conclusion is a necessary step in the direction of the relief sought on the second petition, that must fail. I would therefore dismiss the appeal.

CUMMING-BRUCE L.J. I have had the advantage of considering the judgment that Eveleigh L.J. is about to deliver. I agree with the judgment just delivered by Sir John Arnold P., subject to the qualification expressed by Eveleigh L.J.

EVELEIGH L.J. I am doubtful whether the Foreign Judgments (Reciprocal Enforcement) Act 1933 or the Convention of 1934 apply to matrimonial cases such as this. In Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G. [1975] A.C. 591, 617, Lord Reid said, referring to the Act:

"It is said that the effect of these obscure words in section 8 (1) is to make the section apply to all judgments which would come within the terms of section 1 (2) if condition (b) were omitted. Besides the fact that this would be a very odd way of bringing in another section of the Act that cannot be right. If (b) is omitted then section 1 (2) would apply to every kind of judgment including judgments on status and family matters and in rem. No one suggests that section 8 was meant to deal with them."

The fact that matrimonial causes are mentioned in the Act and Convention can be explained on the basis that money judgments in matrimonial causes are envisaged. Also I would need further argument before deciding that the principle in Henderson v. Henderson (1843) 3 Hare 100 applies to this kind of case.

The validity of the marriage between the petitioner and the respondent, as Sir John Arnold P. has said, falls to be determined by reference to English law: see Ogden v. Ogden (orse. Philip) [1908] P. 46. We have had no evidence as to Italian law and the Belgian decree. I agree that it is only if recognition is required by statute or instrument having statutory force that the foreign judgment will be recognized in preference to the English judgment. Assuming, without so deciding, that the Act and the Convention apply, I agree for the reasons stated in the judgment of Sir John Arnold P. that there is no basis for holding the Belgian decree as binding on the English court or that the 1954 marriage is invalid.

I also agree with what Sir John Arnold P. has said in relation to R.S.C., Ord. 15, r. 16.

I too, therefore, would dismiss this appeal.

Solicitors: Theodore Goddard & Co.; Lieberman, Leigh & Co.; Treasury Solicitor.

[Reported by MICHAEL HAWKINGS, ESQ., Barrister-at-Law]