[1949] 2 All ER 927

By the Matrimonial Causes Act, 1937, s 8(1): "Any married person who alleges that reasonable grounds exist for supposing that the other party to the marriage is dead may present a petition to the court to have it presumed that the other party is dead and to have the marriage dissolved, and the court, if satisfied that such reasonable grounds exist, may make a decree of presumption of death and of dissolution of the marriage."
   In 1917 the wife married in England a private soldier of the Australian forces. Three months later he left England in a troopship. She remained in England, and, apart from a letter written on board ship, she had not seen or heard from him since that date. In 1949, while resident in England, she presented a petition under s 8(1) to have her husband's death presumed, alleging that her domicil was in New South Wales where he resided. The petition was rejected by the registry on the ground that, as the petitioner was not domiciled in England, there was no jurisdiction to entertain it. On appeal to the judge in chambers,

Held - English courts had accepted the principle that, where the parties were domiciled abroad, the court of domicil had sole jurisdiction in suits for dissolution of marriage, but the relief afforded under the Matrimonial Causes Act, 1937, s 8(1), was not primarily or in essence dissolution of marriage, and the residence in England of the petitioner gave the court jurisdiction to entertain the petition.

Notes
As to the Jurisdiction of the English Courts in Divorce and other Matrimonial Causes, see Halsbury, Hailsham Edn, Vol 6, pp 296-314, paras 353-365; and for Cases, see Digest, Vol II, pp 421-428, Nos 874-926 and First and Second Supplements.

927

Divorce Summons
Divorce Summons adjourned into court.
   The Divorce Registry rejected in limine, on the ground of lack of jurisdiction, a proposed petition by the wife to presume the death of her husband. The wife, an Englishwoman, married an Australian soldier in England in 1917, and within three months he left England in a troopship. Apart from a letter written on board ship she had not heard from him since that date and was unaware whether he was alive or dead. In her petition she alleged that the domicil of her husband and herself was in New South Wales. Pearce J ordered that the petition should be filed.

9 November 1949. The following judgment was delivered.

PEARCE J read the following judgment. In 1917 the wife, who was a shop assistant, married in England a private soldier in the Australian forces. Three months later he left England by troopship. She stayed in England. Apart from a letter written on board ship she has neither seen nor heard of him since he left. She now wishes to petition under s 8(1) the Matrimonial Causes Act, 1937, to have it presumed that her husband is dead and to have the marriage dissolved. In her proposed petition she states her belief that the domicil of her husband and herself is in New South Wales. This belief rests, I understand, on the somewhat insecure foundation that her husband told her that his father (who was a cattle drover) was living at an address in New South Wales. The petition was rejected in limine by the registry on the ground that it did not allege an English domicil, and that, therefore, the court had no jurisdiction to entertain it. Application is now made to me by the wife to allow it to be filed on the ground that an English domicil is not necessary to found jurisdiction. As the case is one of difficulty I invited the King's Proctor to assist the court by arguing the matter.
   Section 8(1) of the Matrimonial Causes Act, 1937, provides:

In the ecclesiastical courts before 1857 jurisdiction depended on residence, not on domicil. By the Matrimonial Causes Act, 1857, all jurisdiction then exercisable by the ecclesiastical courts in respect of divorces a mensa et thoro, suits of nullity of marriage, and other matrimonial matters was vested in the Divorce Court. Decrees of judicial separation having the same effect as divorces a mensa et thoro were substituted for them. The court was given a new power of decreeing dissolution of marriage. It was provided that in all proceedings other than those for dissolution of marriage the court should proceed on principles and rules as nearly as might be conformable to those of the former ecclesiastical courts. The Act of 1857 contained no express provision with regard to jurisdiction. The legal principles determining the jurisdiction of the newly constituted court were at first in doubt.
   In Forster v Forster it is to be noted that Cresswell JO, said (3 Swand Tr 155):

In 1895 the Judicial Committee of the Privy Council in Le Mesurier v Le Mesurier, on appeal from Ceylon, reviewed the English and Scottish cases, and came to the conclusion that according to international law the domicil for the time being of the married pair afforded the only true test of jurisdiction to dissolve their marriage. The reasons for adopting domicil as the true test are clearly set out in a dissenting judgment of Brett MR in Niboyet v Niboyet, a case which in the light of the later decisions must be considered to have been wrongly decided. From 1895 onwards the courts have followed Le Mesurier v Le Mesurier and held that domicil is the true test in suits for dissolution of marriage. In 1927 the House of Lords regarded it as established that for a decree of dissolution of a marriage the court of the domicil is the true court of jurisdiction and that in principle that jurisdiction ought to be regarded as exclusive, since it affected the status of the parties and was equivalent to a judgment in rem: Salvesen (or von Lorang) v Administrator of Austrian Property, per Viscount Haldane ([1927] AC 654). Concurrently with the refusal of the court to entertain suits for dissolution of marriage where a foreign domicil is involved, there has been an acceptance by it of suits that do involve an alteration in status and are equivalent to judgments in rem. For instance, the court makes decrees of judicial separation where the parties are domiciled abroad. These involve alteration of status: Eustace v Eustace, per Atkin LJ ([1924] P 54). The court in certain cases makes decrees of nullity where the parties are domiciled abroad. These also involve alteration in status: Salvesen (or von Lorang) v Administrator of Austrian Property, per Viscount Haldane ([1927] AC 654, 656), and per Viscount Dunedin ([1927] AC 662). Counsel for the wife relies on these instances as showing that the court has not in the past been, and should not be, rigidly prevented by the existence of a foreign domicil from making decrees in any cases involving alteration of status where it is necessary to do so to avoid hardship. Counsel for the King's Proctor says that these instances are justifiable on historical grounds and do not lessen the rigidity with which the court refuses to deal with cases of dissolution where there is a foreign domicil.
   Counsel for the w9fe also referred to Stathatos v Stathatos, and De Montaigu v De Montaigu, both of which adopted a dictum of Sir Gorell Barnes P in the Court of Appeal in Ogden v Ogden as showing that in a proper case the court will assume jurisdiction even in suits for dissolution. Those cases dealt with a situation that had arisen because the court of the husband's domicil had declared a marriage void on grounds not recognised in England. They assumed in the wife her original English domicil to support her petition for dissolution of the marriages that had been avoided in the courts of domicil, but since those cases were decided before Salvesen (or von Lorang) v Administrator of Austrian Property, I do not think they are of much assistance.
   In Hutter v Hutter (otherwise Perry), where the marriage was in England but the domicil was foreign, the court assumed jurisdiction and gave a decree of nullity on the ground of wilful refusal to consummate the marriage, a ground that was first created by the Matrimonial Causes Act, 1937. The ground of the decision was the historical jurisdiction of the ecclesiastical courts in cases of nullity. This case was referred to in the Court of Appeal in De Reneville v De Reneville and in Casey v Casey, and there was no unfavourable comment on it. In the latter case Somervell LJ said of it ([1949] 2 All ER 118):

Casey v Casey was a case of nullity where there was a foreign domicil and Bucknill LJ there said (ibid 117):

The effect of the cases (both now and in 1937 when the Matrimonial Causes Act of that year was passed) appears to me to be this. (i) Both in theory and practice our courts have accepted the principle that the court of domicil has sole jurisdiction in suits to dissolve an existing marriage where there is a foreign domicil and that our courts should not take jurisdiction in such suits. In such cases questions of hardship or convenience are irrelevant. (ii) In suits for relief not involving dissolution of an existing marriage but involving alteration of status our courts have in theory accepted the principle that the court of domicil is the appropriate court to pronounce decrees that alter status and are equivalent to judgments in rem. How far they have accepted the principle that it is the only appropriate court does not appear certain: see Salvesen (or von Lorang) v Administrator of Austrian Property, per Viscount Haldane ([1927] AC 654) and per Lord Phillimore ([1927] AC 671), Inverclyde v Inverclyde, eneville v De Reneville and Casey v Casey. In practice, however, the courts have taken jurisdiction, which theory might find it difficult to justify, in certain cases where the domicil is foreign and alteration of status is involved. They have done so where they have found historical, or (as in Hutter v Hutter), quasi-historical, grounds for so doing. In such cases questions of convenience and hardship are not irrelevant. (iii) In suits where no alteration of status is involved there is no objection to our courts accepting jurisdiction where there is a foreign domicil if the parties are resident in England.
   If, therefore, the suit now under discussion is a suit for dissolution of marriage, this court should not take jurisdiction and the question of hardship is irrelevant. It becomes necessary to see what is the essential nature of the relief claimed under s 8 of the Matrimonial Causes Act, 1937. Section 2 sets out the grounds on which divorce may be obtained (by substituting a fresh s 176 in the Supreme Court of Judicature (Consolidation) Act, 1925). The list of grounds there set out does not include the relief under s 8. Section 8(3) provides that ss 181 to 184 inclusive of the Supreme Court of Judicature (Consolidation) Act, 1925

It would seem, therefore, that the legislature is not regarding relief under s 8 as being a decree of divorce. The sections of the Supreme Court of Judicature (Consolidation) Act, 1925, that are applied to such relief are those providing for interventions by the King's Proctor or other persons and the right of re-marriage. Many sections dealing with maintenance, variation of settlements, custody, the duty of the court to inquire into questions of connivance or condonation, and the effect of misconduct by the petitioner (which would, of course, be unsuitable where there is a presumption of death) are clearly intended to be excluded (by the inclusion of the four specified sections) from applying to proceedings under s 8. As the sections thus excluded by implication each contain such words of application as "on a petition for divorce" or "on a decree of divorce," it becomes clear that the legislature considered that proceedings under s 8 would not attract the operation of sections that apply to divorce.
   The reason for this is, I think, apparent in the section. Its primary and essential purpose is to enable a petitioner to have it declared that the other party to the marriage is presumed to be dead. It was intended, no doubt, that, where it was930 reasonable to presume death but impossible to prove it, widows or widowers should no longer have to sterilise their whole lives, but could marry again without being haunted by the probably unfounded fear that their spouses might reappear with disastrous results to their new families. It was not, in my view, intended that this should really be a fresh ground for divorce (masquerading as a presumption of death) where the vanished spouse is in fact alive. Since facts sometimes belie presumptions, provision was made for the fact that occasionally spouses who were presumed dead would, in fact, be still living. To provide no safeguard for a petitioner in such a case would stultify the whole object of the relief given. Professor Wolff in Private International Law, p 281, discusses the methods of various legislatures for dealing with the problem of the return of a spouse presumed to be dead, and it is interesting to note in passing that he assumes inferentially that under the Matrimonial Causes Act, 1937, s 8, the English courts can deal with cases involving a foreign domicil.
   As a safeguard, therefore, this Act has joined to the decree of presumption of death a decree of dissolution of the marriage and has thereby produced a new, and, in my view, anomalous, form of relief. It is this safeguard that has led to the difficulty in this case. It is argued, I think rightly, that the relief under s 8 is not severable, and, therefore, it is argued that a petition to have it presumed that the other party is dead and have the marriage dissolved, in fact, constitutes a petition for dissolution of marriage. It is fair to assume that in most cases where it is reasonable to presume death the decree of dissolution will not dissolve an existing marriage, since death will have already dissolved it, but in the occasional cases where the person presumed dead is alive the safeguard will take effect and an existing marriage will, in fact, have been dissolved by decree of the court. Does this occasional effect make a petition under s 8 a petition for dissolution of marriage or prevent the court having jurisdiction where the domicil is foreign? There is, to my mind, a fundamental difference between deliberately dissolving a marriage which the court knows to exist and dissolving ex abundanti cautela a marriage which the court presumes not to exist. Although there must always be some risk that the decree may alter status, owing to the party presumed dead being in fact alive, yet the risk in each case should not be a large one. In practice the alteration in status, if it occurred, would not be severe, since, where a husband's contact with his wife is so tenuous that his wife and the court presume him to be dead, it is unlikely that he or the community of his domicil are strongly conscious of his marriage status. Must that risk deter the court from accepting jurisdiction? I do not think that the legislature so intended. The preamble to the Matrimonial Causes Act, 1937, sets out that it is expedient for inter alia the removal of hardship that the Acts relating to marriage and divorce be amended. If it had been intended that the removal of this particular hardship should not be available to Englishwomen who have married husbands domiciled elsewhere it would have been easy to say so by enacting that the remedy shall be available not to "any married person" but to "any married person domiciled in England." An almost identical provision in a South Australian statute [the Matrimonial Causes Act Amendment Act, 1941, s 4] gives the relief to "any married person domiciled in the State." Many wives are not very certain where their husband's domicil is and are not in a position to conduct experimental litigation abroad, and I think it was the intention of the legislature that they should be able to participate in the benefits of the Act. It certainly seems just to such wives and also in the public interest that they should have their status as married women or widows established by this court if it properly can be done. To allow them to do so seems more in accord with the tenor of this Act of Parliament. Section 13 of the Act of 1937, in order to alleviate the hardship in certain cases where the husband of a deserted wife has changed his domicil from England to some other country, gives jurisdiction for dissolution although this is a clear infringement of the principle that931 dissolution belongs only to the court of domicil. It seems unlikely that, owing to the mere risk of such infringement, the Act intended to withhold relief under s 8 from a class whose hardship was obvious. I think it more likely that the legislature assumed and intended that, owing to the anomalous nature of the relief under s 8, our courts should not be deterred from taking jurisdiction under it when the husband had a foreign domicil.
   There have been two cases cited to me in respect of similar statutory provisions-one decided in Scotland, the other in Queensland. The Scottish case was decided at first instance against the petitioner on the ground that she had failed to prove a Scottish domicil. On appeal she succeeded because it was held that she had proved a Scottish domicil: Antania Anskaitis (or Labcianskas) v Antania Anskaitis (or Labcianskas). In both courts it was assumed that a Scottish domicil had to be proved, and that point was never argued. The Divorce (Scotland) Act, 1938, s 5, is in different terms from s 8 of the Matrimonial Causes Act, 1937. It does not give a right to apply to have it presumed that the other party is dead, with dissolution as a secondary safeguard. It only gives a right to apply for a "dissolution of the marriage on the ground of the presumed death of the other party." This difference in terms and the absence of argument or comment on the point before me make it dangerous to give weight to that case in respect of the matter that I now have to decide. The other case, Cocks v Cocks, dealt with s 39A of the Queensland Matrimonial Causes Jurisdiction Act, 1864, introduced into the legislation (without preamble, and in company only with an amending section relating to dispensation with the service of writs) by the Matrimonial Causes Acts Amendment Act, 1943, s 3. That section is in terms identical for all practical purposes with the section that I am now considering. In that case it was held that the petitioner must at the date of the institution of proceedings be domiciled in Queensland. I have studied the judgments carefully and the reasoning in them is bound to carry great weight with me. Macrossan CJ was of opinion that the terms of the section with which he was dealing clearly indicated ([1946] State Reports of Queensland, 149):

and found himself unable to accept the view that the jurisdiction conferred by the section was an anomalous jurisdiction, and that, therefore, the court should exercise jurisdiction in favour of any person resident in Queensland.
   The section that I am now considering was introduced into the legislation in a different way from that in Queensland, and, though many of the considerations before me are the same as those before the learned Chief Justice, some are different. I have had some doubt in the matter and I regard the question as far from easy, but for the reasons which I have indicated I find myself unable to take the same view of the section before me as he did of the section before him. In my view, relief under s 8 is not primarily or in essence dissolution of marriage and was not intended to be so. The dissolution was added as a safeguard. The risk that in certain cases the presumption may be incorrect so that the safeguard will then come into operation and effect an alteration of status in respect of a person domiciled abroad was not, in my opinion, intended by the legislature to deter this court from accepting jurisdiction and should not prevent its doing so. I think, therefore, that residence is the test, not domicil. Since the husband is, ex hypothesi, presumed dead and as such has no residence, it cannot have been his residence that was intended to be the test. It is the residence of the petitioner that was intended to give jurisdiction. I, accordingly, direct that the petition should be filed.

Solicitors: Malcolm Slowe & Co (for the wife); Treasury Solicitor (for the King's Proctor).