COUNSEL: Inderwick, Q.C., and Swabey, for the petitioner.

Gorst, Q.C., and Greenwood, for the Queen’s proctor.

 

SOLICITORS: For petitioner: Chapman, Turner, & Prichard.

Against petition: Queen’s Proctor.

 

JUDGES: James, Brett and Cotton, L.JJ.

 

DATE: July 16, 19; Nov. 18, 1878.

 

 

Divorce – Foreigner – Jurisdiction – 20 & 21 Vict. c. 85, ss. 27, 31.

 

The Court has jurisdiction to grant a divorce against a foreigner.

 

A marriage was solemnized at Gibraltar between a Frenchman and an Englishwoman. The husband resided for several years in England, but being a consul for France he retained his domicil of origin. The wife presented a petition for a divorce, alleging adultery committed in England, and desertion. The husband appeared under protest and prayed to be dismissed:–

 

Held, reversing the decision of Sir R. J. Phillimore (by James and Cotton, L.JJ., Brett, L.J., dissenting), that the Court had jurisdiction to grant a divorce.

 

APPEAL from an order of Sir R. J. Phillimore dismissing a petition for a divorce.

 

The question was, whether the Court had jurisdiction to receive a petition for divorce presented by a wife, her domicil of origin being English, the marriage having been celebrated at Gibraltar, and the alleged adultery having taken place in England; the [*2] domicil of the husband, who was a consul for France, having been and continuing to be French, although he was residing in England.

 

Sir R. J. Phillimore dismissed the petition on the ground that the Court had no jurisdiction as against a foreigner.

 

The facts of the case are fully stated in the report in the Court below(1), and in the judgments of the judges in the Court of Appeal.

 

July 16, 19, 1878. Inderwick, Q.C., and Swabey, for the petitioner. There is no case in which a natural born subject of the Queen has been refused a divorce on any question of domicil. The divorce might not be recognised in some other countries, but such divorces are constantly granted in every Protestant country. The wife being domiciled here is entitled to a divorce valeat quantum. The husband and wife were in this country; the offence was committed here, and they are entitled to the benefit of the law of this country: Brodie v. Brodie (2); Ratcliff v. Ratcliff (3); Firebrace v. Firebrace (4); Deck v. Deck. (5) If every natural born subject can under ss. 27 and 31 of the Act 20 a 21 Vict. c. 85, present a petition, she must have a right to a divorce: Bond v. Bond (6); Le Sueur v. Le Sueur (7); Simonin v. Mallac (8); Sottomayor v. De Barros. (9) The question could not have arisen formerly because the canon law was the same all over the world. The statute 23 Hen. 8, c. 9, as to citation out of the jurisdiction, did not apply if the defendant had appeared. In Lindo v. Belisario (10), the Court decided the question. Donegal v. Donegal (11) may have been collusive in its origin. In Shaw v. Attorney General (12), and Lloyd v. Petitjean (13), the Court assumed jurisdiction. No doubt in many of these cases the parties did not appear, but that cannot have given the Court jurisdiction. It must be admitted that much of the reasoning in Shaw v. Gould (14) is against the petitioner, but all the Lords did not concur in the reasoning.

 

(1) 3 P. D. 52.

 

(2) 2 Sw. & Tr. 259.

 

(3) 1 Sw. & Tr. 467.

 

(4) 47 L. J. (P. A. & D.) 41.

 

(5) 2 Sw. & Tr. 90; 29 L. J. (P. M. & A.) 129.

 

(6) 2 Sw. & Tr. 93; 29 L. J. (P. M. & A.) 143.

 

(7) 1 P. D. 139.

 

(8) 2 Sw. & Tr. 67; 29 L. J. (P. M. & A.) 97.

 

(9) 3 P. D. 1.

 

(10) 1 Hagg. Cons. 216.

 

(11) 3 Phillim. 597.

 

(12) Law Rep. 2 P. & D. 156.

 

(13) 2 Curt. Cons. 251.

 

(14) Law Rep. 3 H. L. 55. [*3]

 

The observations in Warrender v. Warrender (1) are strongly in favour of the petitioner.

 

Gorst, Q.C., and Greenwood, for the Queen’s proctor. It is clear that every husband and every wife in every country cannot apply to this Court for a divorce. One at all events must be domiciled here, and the wife’s domicil is that of her husband, so that here both are foreigners. Deck v. Deck (2) is the only case in which the Court has pronounced for a divorce between persons not domiciled here. But the courts of one country ought not to make orders affecting the personal status in another country of a person not domiciled here. Even if English subjects by origin domiciled abroad can be divorced here, it does not follow that this Court will interfere against a person who has never been domiciled here. In Bond v. Bond (3), the Court is said to have followed Deck v. Deck (2), but that is not so. Brodie v. Brodie (4), referred to in Manning v. Manning (5), is in favour of the respondent; and so is Wilson v. Wilson. (6) Sottomayor v. De Barros (7) was a very strong case. The doubts as to the wife’s domicil raised in Dolphin v. Robins (8) were not shared by all of their Lordships. Pitt v. Pitt (9) shews that there cannot be a divorce granted unless the parties are domiciled here. Yelverton v. Yelverton (10) and Tollemache v. Tollemache (11) shew that the Court has no jurisdiction in such cases.

 

Inderwick, Q.C., in reply.

 

Cur. adv. vult.

 

 

Nov. 18. JAMES, L.J.:- This case was argued and decided in the Court below, and has been argued before us, exclusively on one question, viz., whether an English Court has or has not jurisdiction to dissolve the marriage tie between persons not domiciled in England, the dissolution of such a marriage being the real and avowed object of the petitioner in the suit. That such should be the avowed object of the suit, and that the parties should be

 

(1) 2 Cl. & F. 488.

 

(2) 2 Sw. & Tr. 90; 29 L. J. (P. M. & A.) 129.

 

(3) 2 Sw. & Tr. 93; 29 L. J. (P. M. & A.) 143.

 

(4) 2 Sw. & Tr. 259.

 

(5) Law Rep. 2 P. & D. 223.

 

(6) Law Rep. 2 P. & D. 435.

 

(7) 3 P. D. 1.

 

(8) 7 H. L. C. 390.

 

(9) 4 Macq. 627.

 

(10) 1 Sw. & Tr. 574.

 

(11) 1 Sw. & Tr. 557. [*4]

 

desirous of having the opinion and decision of the Court on that question, does not preclude the Court from seeing, or enable the Court to avoid seeing, what the real question raised by the pleadings is. The petitioner after alleging the marriage at Gibraltar, alleges desertion for two years, and upwards, without reasonable excuse, and adulterous intercourse committed and continued from the year 1867 down to the institution of the proceedings, at and in the neighbourhood of Sunderland, in the county of Durham, and therefore in England. The prayer is, that the Court would be pleased to decree the dissolution of the marriage, but to that is added the usual prayer for general relief, the exact words are, “such other and further relief in the premises as to this Honourable Court may seem meet.” I read these words as being in substance such further or other relief. The respondent appeared under protest, and pleaded to the jurisdiction in substance, that he was by birth and domicil a Frenchman, and that, although he had resided in England from the year 1862 to the year 1869, and afterwards from the year 1875 to the commencement of the suit, he so resided in the discharge of his duties in the consular service of his own government. And he sums up thus: “During the whole period of the respondent’s absence from France aforesaid, he retained his French domicil, and has not now and never had, any domicil in England. By reason of the premises, this Honourable Court has not had any jurisdiction to dissolve the marriage of the respondent with the petitioner.” And he prayed to be dismissed from all further observance of justice in this suit. But whether the respondent is or is not right in his contention that the Court has no jurisdiction to dissolve the marriage, the plea to the jurisdiction must fail if the petitioner be entitled to any relief whatever in the suit, on the facts stated in her petition.

 

Can there be any doubt that before the English Act of Parliament transferring the jurisdiction in matrimonial causes, from the church and her Courts to the sovereign and her Court, the injured wife could have cited the adulterous husband before the bishop, and have asked either for a restitution of conjugal rights or for a divorce a mensä et thoro, and in either case for proper alimony? The jurisdiction of the Court Christian was a jurisdiction over Christians, who, in theory, by virtue of their baptism, became [*5] members of the one Catholic and Apostolic Church. The church and its jurisdiction had nothing to do with the original nationality or acquired domicils of the parties, using the word domicil in the sense of the secular domicil, viz., the domicil affecting the secular rights, obligations, and status of the party. Residence, as distinct from casual presence on a visit or in itinere, no doubt was an important element; but that residence had no connection with, and little analogy to, that which we now understand when we endeavour to solve, what has been found so often very difficult of solution, the question of a person’s domicil. If a Frenchman came to reside in an English parish his soul was one of the souls the care of which was the duty of the parish priest, and he would be liable for any ecclesiastical offence to be dealt with by the ordinary, pro salute anim3Ú4. It is not immaterial to note that dioceses, and states or provinces, were not necessarily conterminous. The Channel Islands, which are no part of England, are in the diocese of Winchester, and the Isle of Man is in the province of York; and many similar cases might be found on the Continent. And although the laws of the state sometimes interfered by way of coercion, regulation, or prohibition, with the Courts Christian, the latter acted proprio vigore, and they administered their own law, not the law of the state, and they administered it in their own name and not in the name of the sovereign. The language of the Act creating the existing court strikingly illustrates this, when it enacts that all jurisdiction vested in or exercised by any Ecclesiastical Court or person in England, &c., shall belong to and be vested in her Majesty. It was not previously vested in her, although she had appellate jurisdiction as supreme Ecclesiastical judge. If before that Act had passed, the facts alleged in this petition had occurred, and the injured wife had applied to the Bishop of Durham for such relief in the matter as was then competent to him, is it possible to conceive any principle on which the guilty husband could demur to the Ordinary’s jurisdiction? The wrong done in his diocese, the offending party openly and scandalously violating the laws of God and of the church in his diocese, why should he decline to interfere? What could it be to him whether the offender was born in any other diocese or born in any other country, Christian, heathen, or Mahometan, and had [*6] not in the eye of the secular Court abandoned his domicil therein? And what principle of international law could there have been to create the slightest difficulty in the way of a decree for restitution, for separation a mensa et thoro, or for alimony? The wrongdoer has elected to reside within the local limits of the jurisdiction of the Church Court, and neither the Court of the State nor the Church or State Court of his own country has any ground for alleging that the Church Court appealed to is usurping a jurisdiction, when it by Ecclesiastical monition, declaration, and censure, compels the offending party to give proper redress or declares the offended party to be thenceforth relieved from the obligation to provide for or to adhere to the bed and board of the other; which was what the decree of divorce a mensä et thoro really amounted to. If I were asked to define, and it were necessary to define, what in the particular case of matrimonial infidelity constituted a matter matrimonial in England at the time when the Act was passed, I should define it to be a case of infidelity where the matrimonial home was in England – the matrimonial home in which the offended husband ought to be no longer bound to entertain the unchaste wife, or in which the chaste and offended wife ought to be no longer bound to share the bed and board of the polluted husband – the matrimonial home, the purity of which was under the watch and ward of the church there. I will give two illustrations of my meaning. It appears to me impossible to suppose that an English Court would lose its jurisdiction or not have jurisdiction because the guilty party consorted with his or her paramour outside the territorial limits of the diocese or on a journey. And, on the other hand, I do not think that an English Court ought to have exercised or would have exercised jurisdiction in the case of a French matrimonial home by reason of an act of infidelity done during a visit, or in transit to or through the English diocese. The proper Court in that case would have been a French Court. I arrive, therefore, at the conclusion that the facts stated in the petition would have constituted a matter matrimonial in England, in which some jurisdiction would, but for the passing of the Act, have been vested in and exercised by an Ecclesiastical Court or person in England, and that such jurisdiction now belongs to and is vested in her Majesty. This appears to me sufficient to dispose [*7] of the plea which denies all jurisdiction whatever in the subject-matter of complaint.

 

But the same considerations appear to me also sufficient to dispose of the question which was discussed and considered in the Court below, viz., whether the Court can under the English statute decree a dissolution of the tie. The Act was passed expressly “to constitute a Court with exclusive jurisdiction in matters matrimonial in England, and with authority in certain cases to decree the dissolution of a marriage.” I read that as “in certain of such cases” “in certain of such matters matrimonial” in England. And that is followed by the 27th section which is quite universal in its language. “It shall be lawful for any husband .... it shall be lawful for any wife.” That universality is of course to be limited by the object and purview of the Act, and is to be read thus: “And in any such matrimonial matter in England it shall be lawful for any husband or wife, &c.” And except such limitation I am unable to find any limitation which on any principle of construction ought to be implied. Of course it is always to be understood and implied that the legislature of a country is not intending to deal with persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other sovereign or state. But I do not find any violation of that comity in the legislature of a country dealing as it may think just with persons native or not native, domiciled or not domiciled, who elect to come and reside in that country, and during such residence to break the laws of God or of the land. I and unable, more especially, to imply any limitation of the authority of the Court by reference to the principles of law which were at the passing of the Act in the course of development in the American Courts, where it is now settled that the jurisdiction is to be determined by the domicil of the complaining party at the time of the complaint brought. No such principle had then been established or recognised in any Court in this kingdom, and on the contrary in one very important division of the realm, Scotland, the Scotch Courts had exercised jurisdiction in entire disregard of any such principle. That fact was present to the English legislature with full knowledge of certain very painful and embarrassing consequences resulting from it. But the legislature did not think it necessary or [*8] fit to make any provision in that behalf. A Scotch divorce a vinculo between persons not Scotch by domicil was held to be void in England as to an English marriage. But so far as Scotland was concerned, and so far as any consequences of the divorce would have to be determined by the Scotch Courts, the divorce was to all intents and purposes valid and effectual. It is very inconvenient and very distressing that two people should be husband and wife in one country and not husband and wife in another, that their marriage should be a lawful marriage in one and bigamous in another, that they should be compellable by the laws of a Christian country to a cohabitation which by the laws of another Christian country would be an adulterous intercourse. And if we could find in the general application of the law as laid down by the American authorities a satisfactory escape from the difficulty, we should be sorely tempted to strain the construction of the English statute to bring it into harmony with that law. But I do not find any such satisfactory solution in that law. In the first place it appears to me to be a violation of every principle to make the dissolubility of a marriage depend on the mere will and pleasure of the husband, and domicil is entirely a matter of his will and pleasure. It would be very desirable no doubt that a judicial decree of dissolution of a marriage affecting the status of husband and wife, a decree in rem, should be if possible recognised by the Courts of every other country according to the principles of international comity. But is such a result possible? Would any French Court recognise the dissolution of a French marriage because the French husband had been minded to establish his domicil in England?

 

In England a divorce a vinculo is only granted under certain conditions, and with very careful precautions and stringent regulations to prevent its being the result of collusion between the parties. But supposing the collusion to assume the form of an abandonment of the English domicil, and the establishment of a new domicil in some country where a divorce can be obtained, almost if not quite, by mutual consent and arrangement? Would an English Court, or ought it to recognise such a dissolution of the marriage tie and allow the English wife, whose original domicil would be restored thereby to return to this country and contract a [*9] valid marriage here. Moreover a dissolution of the marriage for adultery is only one of the modes by which the status or alleged status of husband and wife is judicially determined. A decree of nullity of a pretended marriage is quite as much a decree in rem, and has all the consequences. How would it be possible to make domicil the test of jurisdiction in such a case? Suppose the alleged wife were the complainant, her domicil would depend on the very matter in controversy. If she was really married her domicil would be the domicil of her husband, if not married then it would be her own previous domicil. If domicil is required to give jurisdiction, that requisite could not be supplied by the negligence or consent of the party; and a decree for dissolution would always be liable to be opened by a fresh litigation raising the question – often a most difficult question – of the domicil.

 

I find myself unable to arrive at the conclusion that the domicil of the complaining party ought to determine the existence of the limits of the jurisdiction given by the English statute to the English Court. The only limitation which I can find is the limitation of the jurisdiction to those matters which come under the category of matrimonial matters in England, to every one of which the English law, with all its consequences, so far as England is concerned, must be applied. I have endeavoured to ascertain what such a matter is, and I have arrived at the conclusion that the present case comes within that category. It is a misfortune that that law with its consequences may not be recognised in another country, but that misfortune inevitably arises from an irreconcileable conflict of laws produced by the irreconcileable views of different Christian communities as to the dissolubility or indissolubility of the marriage tie, or the sufficiency of the grounds for a dissolution. I do not think that I am overruling any English case in holding that on the facts stated in this petition the wife is entitled to the relief she asks, or in laying down that where and while the matrimonial home is English, and the wrong is done here, then the English jurisdiction exists and the English law ought to be applied.

 

BRETT, L.J. In this case the wife filed a petition praying for a dissolution of her marriage on the ground of alleged adultery and [*10] desertion by her husband. The petition in form prayed for a dissolution of the marriage. It contained also in the usual general terms an alternative prayer “for such other and further relief in the premises as to the Court may seem meet.” The material facts stated in the different pleadings, as the facts on which the parties relied, were that the parties were in 1856 married at Gibraltar according to English form, that the wife was English by birth, the husband French by birth, that the husband had from 1862 to 1869 acted as French vice-consul at Sunderland, and from 1875 to 1876 and until he was cited to appear in this suit, as French consul at Newcastle. The adultery was committed in England. The wife was resident in England. The petition was served in England. The husband was residing in England. But the husband had never been domiciled in England. The husband appeared under protest and pleaded to the jurisdiction. No one appeared for the husband at the hearing, but the Queen’s proctor, by direction of the Court, intervened and submitted for argument two propositions or questions: (1) Whether, it being admitted by the petitioner that the respondent has a French domicil, this Court has any jurisdiction as a matter of general law? (2) If it has not jurisdiction as a matter of general law, whether the particular circumstances of this case give it jurisdiction? In discussing these propositions all the arguments in the Court below were confined to the question whether the Court had jurisdiction to grant a dissolution of the marriage. The judgment was given on that question alone. The arguments of counsel before us were all pointed at that question alone. That was the only relief really desired or really demanded in either court. That being so, it appears to me, though I say it with great deference, that we ought, as matter of decision, to deal with that question alone; dealing with the jurisdiction of the Court in other matters only in case and so far as that jurisdiction may seem to us to assist in determining whether the Court had or had not jurisdiction to grant a dissolution of marriage under the circumstances of this case. The arguments preferred in support of the appeal and in favour of the jurisdiction were: First, that the husband though not completely domiciled in England was bonä fide and more than casually resident in England, and that such residence made him liable to the jurisdiction of any Court exercising [*11] jurisdiction in matrimonial causes in England; secondly, that his mere presence in England when charged with a matrimonial offence gave jurisdiction to the English Court; thirdly, that the mere application to an English Court of a person claiming its decree against another for an alleged matrimonial offence gives jurisdiction to the Court. It was argued from these propositions that the mere fact of the statute constituting a Court with power to grant divorce gave the Court jurisdiction to entertain the prayer for divorce as against this respondent, if the case could be brought within any of these propositions. But it was further argued, fourthly, that upon the true construction of the terms of the statute it in terms enacts jurisdiction over all persons, English or foreign, and that an English Court must obey the statute. The decision must in the end depend upon the construction of the statute, because before it no Court in England had jurisdiction to grant divorce; but as preliminary to the decision it seems desirable to consider the matter according to some general principles. As has been frequently pointed out, a decree of dissolution of marriage cannot be the judicial declaration of a mere consequence agreed between the parties for the breach of a contract, as in ordinary cases of breach of contract, or a mere compensation or individual remedy for the breach of a private duty as in an action for damages, but can only be a judicial sentence of the law of the country in and for which the Court is acting, by which such Court assumes to alter not only the relation between the parties but the status of both. Marriage is the fulfilment of a contract satisfied by the solemnization of the marriage, but marriage directly it exists creates by law a relation between the parties and what is called a status of each. The status of an individual, used as a legal term, means the legal position of the individual in or with regard to the rest of a community. That relation between the parties, and that status of each of them with regard to the community, which are constituted upon marriage are not imposed or defined by contract or agreement but by law. The limitations or conditions or effects of such relation and status are different in different countries. As that relation and status are imposed by law, the only law which can impose or define such a relation or status (i.e., relative position) so as to bind an individual, is the law to which such individual is [*12] subject. The power of a law which enacts restrictions on or grants relaxations of the personal condition of individuals is territorial, i.e., limited. The meaning of that is, that it is only binding on the natural born subjects of the lawgiver or on those who have otherwise become his subjects. By the universal comity of nations foreigners do not by their mere sojourn in a country make themselves subject to its personal laws, other than its police or correctional law, or laws expressly enacted to bind all who are in fact within its territorial limits. By the universal independence of nations each binds by its personal laws its natural born subjects and all who may become its subjects. By the universal consent of nations every one who elects to become domiciled in a country is bound by the laws of that country, so long as he remains domiciled in it, as if he were a natural born subject of it. It follows then from the nature of the subject-matter, that laws which, for certain enacted or predicated causes, as distinguished from causes agreed upon between the parties, alter the personal relations of individuals to each other, or their relation to the community, can only bind the natural born subjects of the enacting country or foreigners who have become domiciled in it; but they may, consistently with principle and the universal consent of nations, bind both of these. The law then which enables a Court to decree an alteration in the relation between husband and wife, or an alteration in the status of husband or wife as such, is as matter of principle the law of the country to which by birth or domicil they owe obedience. The only Court which can decree by virtue of such law is a Court of that country. Another mode of considering the subject, or another line of argument is this. A judgment or decree determining what is the status of an individval is a judgment or decree in rem. It is, therefore, if binding at all, not only a binding judgment as between the parties to the suit, but is to be recognised as binding in all suits and by all parties. Such a judgment, where the jurisdiction of the Court which made it is recognised, is treated as binding and final, not only by all the courts of the same country but by the courts of all countries. The jurisdiction of the Courts of a country in which people have elected to be and are in fact domiciled is in all countries admitted, and the judgment or decree in rem of the courts of a country in which people are domiciled [*13] is therefore treated as binding in all countries. But the jurisdiction of a country exercised, whether by legislation or by its courts, over the personal status of the subjects of another country who are merely present in it, or are merely sojourning in it, or are merely cited to it, is not admitted by the country of which such people are subjects or by other foreign countries. If, therefore, the Courts of any country should assume, by a decree of divorce or any other decree determining the relation or the status of a married person, to alter that relation or status of a foreigner not domiciled, the decree would not be recognised as binding by the Courts of any other country. Then the relation or status of a married person, would be one in the country of the Court making the decree, and another in all other countries. That is to say, a man or woman would be treated as married in one country and not so in another; or married people might be enjoined to live together in one country and to live apart in another. No Court ought to assume or presume to place people in so deplorable a position, unless forced to do so by the express law of the country whose law it is administering. Another general consideration seems to be as follows. The status of marriage is the legal position of the married person as such in the community or in relation to the community. Which community is it which is interested in such relation? None other than the community of which he is a member, that is the community with which he is living as a part of it. But that in fact is the community in which he is living so as to be one of the families of it. That is the community in which he is living at home with intent that among or in it should be the home of his married life. But that is the place of his domicil. It follows that upon principle the only law which should assume to alter his status as a married man is the law of the country of his domicil; the only Court which should assume to decree such alteration is a Court administering the law of that country. The country or society of his birth is not interested in his marriage status so long as he is domiciled elsewhere.

 

From all these considerations it seems that the only Court, which on principle ought to entertain the question of altering the relation in any respect between parties admitted to be married, or the status of either of such parties arising from their being [*14] married, on account of some act which by law is treated as a matrimonial offence, is a Court of the country in which they are domiciled at the time of the institution of the suit. If this be a correct proposition, it follows that the Court must be a Court of the country in which the husband is at the time domiciled; because it is incontestable that the domicil of the wife, so long as she is a wife, is the domicil which her husband selects for himself, and at the commencement of the suit she is ex hypothesi – still a wife. The case of an adulterous husband deserting his wife by leaving the country of his domicil and assuming to domicile himself in another, might seem to raise an intolerable injustice; but we cannot help thinking that in such case, if sued by his wife in the country in which he had left her, he could not be heard to allege that that was not still the place of his married home, i.e., for the purpose of that suit, of his domicil. So much for the principle, if there were no authorities. It is very right, however, to consider the decisions of the Courts of other countries, and very necessary to consider the decisions of the Courts of our own country; the decisions in our own country before the statute being, it should be observed, necessarily decisions as to the extent to which English Courts, or the English legislature acting as if judicially, recognised the decisions of foreign courts. Now the American authorities seem clear, and they are of great importance, because the American Courts have been called upon oftener than any others to consider and deal with the subject. The results of American decisions seem to be most ably collected and stated in Mr. Bishop’s elaborate, and, in my opinion, admirable treatise on Marriage and Divorce. “When parties,” he says at § 709, “resort to the Courts of a foreign state or country without a change of domicil, for the purpose of obtaining a divorce to which they would not be entitled by the laws of their own country, the divorce, as we shall hereafter see, will be treated at home as invalid. The true principle is undoubtedly that the foreign tribunal had no proper jurisdiction over the subject-matter, being one of status, with which the Courts of the parties’ domicil are alone competent to deal.” At § 721: “The tribunals of a country have no jurisdiction over a cause of divorce wherever the offence may have occurred, if neither of the parties has an [*15] actual bonâ fide domicil within its territory; nor is this proposition at all modified by the fact that one or both of them may be temporarily residing within reach of the process of the court, or that the defendant appears and submits to the suit.” At § 740: “The place where the offence was committed, whether in the country in which the suit is brought or a foreign country, is quite immaterial.” At § 741: “The domicil of the parties at the time the offence was committed, is of no consequence; the jurisdiction depends upon their domicil at the time the proceeding is instituted and judgment rendered.” At § 745: “It is immaterial to this question of jurisdiction, in what country or under what system of divorce laws the marriage was contracted.” These extracts, which seem to me, after minute reference to the cases on which they are founded, to correctly state the effect of a multitude of American decisions, given by judges of the highest authority, make it clear that in America the only Court which can decree any alteration in the relations between married people or in the status of either of them as a married person, is the Court of the country in which they are domiciled at the time of the institution of the suit. This is also laid down by Story in his treatise on the Conflict of Laws, ch. 5, s. 110: “As to the constitution of the marriage, as it is merely a personal consensual contract, it must be valid everywhere if celebrated according to the lex loci; but with regard to the rights, duties, and obligations thence arising, the law of the domicil must be looked to.” It is equally clear that the decisions in Scotland are to the contrary. The Scotch Courts will entertain a suit for divorce, and decree a divorce at the instance of either party who has been resident for a certain period in Scotland, though neither party is Scotch and neither is domiciled in Scotland. This view of the Courts of Scotland was, however, distinctly denied to be the law of England in Rex v. Lolley. (1) Lolley and his wife were both English; the husband was domiciled in England; the marriage was in England; the husband committed adultery in England and Scotland; the wife instituted a suit against him in Scotland for a divorce; the Scotch Court decreed a divorce; Lolley afterwards, and during the lifetime of the lady who had procured this decree, married another woman in

 

(1) 2 Cl. & F. 567, n. [*16]

 

England. He was tried in England for bigamy, and was convicted. The case was argued before all the judges, and the conviction was confirmed, because they held that the Scotch Court had no jurisdiction recognised in England to grant the first divorce, which was therefore to be treated in England as null and void. This decision was treated by Lord Brougham in McCarthy v. De Caix (1) as a decision that no sentence of a foreign court can annul a marriage made in England. But it has since been shewn that it only amounts to a decision that the Scotch Court had, in the view of the English law, no jurisdiction where the parties were not domiciled in Scotland, though they were for a time resident there. The elaborate judgment of Lord Brougham in Warrender v. Warrender (2) is a long criticism to shew that this was all that was necessary to be decided in Lolley’s case, that if it decided more it was wrong, and that the true and only condition of jurisdiction was domicil. In the case itself, Sir G. Warrender was married in England; the adultery charged against his wife was abroad; the husband was domiciled in Scotland at the institution of the suit; the wife was not in Scotland; it was held by the House of Lords that the Scotch Court had jurisdiction, on account of the domicil of the husband and because the domicil of the husband was the domicil of the wife. In Conway v. Beazley (3) it was held by Dr. Lushington that where the first husband was English, was married in England, and was not domiciled in Scotland, a sentence of divorce in Scotland was void because the Scotch Court had no jurisdiction. But he clearly indicated his opinion that if the husband had been domiciled in Scotland the sentence there would have been binding everywhere. In Yelverton v. Yelverton (4), in a suit for restitution by the wife, the marriage was in Scotland, the husband was Irish, and had never been domiciled in England; the wife was resident in England. The English Court held that it had no jurisdiction, on the ground that, at the time of the commencement of the suit the husband was not domiciled in England. In Firebrace v. Firebrace (5) Sir James Hannen acted, in a suit for restitution of conjugal rights, on the

 

(1) 2 Cl. & F. 568, n.

 

(2) 2 Cl. & F. 488.

 

(3) 3 Hagg. Ecc. Rep. 639.

 

(4) 1 Sw. & Tr. 574.

 

(5) 47 L. J. (P.D. & A.) 41. [*17]

 

authority of that rule, which he said was laid down in Yelverton v. Yelverton. (1) He declined jurisdiction, on the ground that at the commencement of the suit the husband was not domiciled in England. In Tollemache v. Tollemache (2) a suit for divorce was instituted in England by a husband domiciled at that time in England. The defence of the wife was that she had been previously divorced in Scotland. But the Scotch sentence was passed when the husband was not domiciled in Scotland. The Court in the second suit held that the first divorce was void because there was no domicil in Scotland, but granted a divorce in the suit before it because there was domicil in England. In Ratcliff v. Ratcliff (3) the marriage was in India and the adultery in India, but at the institution of the suit the husband was domiciled in England. Lord Campbell, Martin, B., and Cresswell, J., held that the domicil gave jurisdiction. The opinion of Lord Penzance seems clear from what he said in Wilson v. Wilson (4), as cited in the judgment of the present case. “Now it is not disputed that if the petitioner was domiciled in England at the time the suit was commenced, this Court has jurisdiction; but whether any residence in this country short of domicile, using that word in its ordinary sense, will give the Court jurisdiction over parties whose domicil is elsewhere, is a question upon which the authorities are not consistent. It is the strong inclination of my own opinion that the only fair and satisfactory rule to adopt on this matter of jurisdiction is to insist upon the parties in all cases referring their matrimonial differences to the Courts of the country in which they are domiciled.” But then there are English cases which are or seem to be to the contrary. In Simonin v. Mallac (5) the suit was for a decree of nullity instituted by the wife. Both husband and wife were French, and were domiciled in France. The marriage was in England, solemnized according to English, but not according to French, formalities. The marriage was void according to French law, which was stated to be applicable to its subjects marrying abroad. The English Court entertained the suit because the marriage was in England, and held it binding

 

(1) 1 Sw. & Tr. 574.

 

(2) 1 Sw. & Tr. 557.

 

(3) 1 Sw. & Tr. 467.

 

(4) Law Rep. 2 P. & D. 441.

 

(5) 2 Sw. & Tr. 67; 29 L. J. (P.M. & A.) 97. [*18]

 

because it was solemnized in due English form. It may, having regard to the French law, if it was as stated, be at least doubtful whether the suit was well decided. But as the question was whether there ever was a valid marriage, that is to say, whether the contract to marry was ever carried out, the country in which the alleged marriage was solemnized had jurisdiction. In Deck v. Deck (1) the suit was by the wife for a divorce for adultery and desertion. Husband and wife were English, and the marriage was in England, but the husband was domiciled in America. He had there married another woman. The Court entertained the suit, and granted a divorce. The ground of the decision was that both parties were English, and therefore bound by the Divorce Act. This at the utmost only shews that the Act applies to English subjects, whether domiciled or not, and does not shew that it is applicable to foreigners not domiciled. But I respectfully differ from the decision. In Callwell v. Callwell (2) the suit was by the husband for a divorce. Husband and wife were Irish; the marriage was in Ireland, the adultery was in England and on the Continent. The husband was not domiciled in England. Cresswell, J., Willes, J., and Hill, J., doubted as to jurisdiction, but entertained the suit on the ground that the wife had appeared without protest, and therefore was too late to plead to the jurisdiction. This decision must be supported on a rule of pleading which is recognised in one of the stages of Wilson v. Wilson (3) as still in force. It is, unless as matter of pleading, inconsistent with the cases above cited. In Brodie v. Brodie (4) the husband was Australian and domiciled in Australia. The marriage and adultery were in Australia. The Court entertained the suit. The judgment was: “We say nothing as to what the effect of the evidence might be in a testamentary suit; we think that the petitioner was bonä fide resident here, not casually or as a traveller. After he became resident here his wife was carrying on an adulterous intercourse in Australia. He is therefore entitled to a decree nisi for a dissolution of the marriage.” If this was held to be a domicil, it is consistent with all the cases; if it is to be taken as a decision that there can be a minor

 

(1) 2 Sw. & Tr. 90; 29 L. J. (P.M. & A.) 129.

 

(2) 3 Sw. & Tr. 259.

 

(3) Law Rep. 2 P. & D. 435.

 

(4) 2 Sw. & Tr. 259. [*19]

 

species of domicil sufficient for one purpose and not for another, I know of no authority or ground of reason for such a distinction. I cannot agree with it. I do not think that cases arising before the Ecclesiastical Courts in which, a matrimonial offence being alleged against subjects or against domiciled foreigners, the question arose whether by reason of their temporary sojourn in one of the dioceses they might be served with process in that diocese, are applicable. Such questions did not raise the point of the general jurisdiction of the law of the country, but rather a question of procedure within an admitted jurisdiction of such law. On the grounds, then, of the nature of the subject-matter of the suit, of the nature of the judgment given in such suit, of the interest of the country in which the dispute arises, of the comity due to other nations, of the immense mischief of a judgment of such a nature being given under circumstances which mill prevent it from being recognised everywhere, and of the preponderance of authority in England, I am of opinion that, unless the statute has otherwise enacted, the domicil of the husband in England at the institution of the suit is, according to the true construction of the statute, the fact which gives jurisdiction to the English Divorce Court to decree divorce; that with such a domicil the Court has jurisdiction over a foreigner as well as over an English subject; that without such domicil the Court has no jurisdiction, though the party is an English subject. The same rule, I confess, seems to me to apply, for the same reason, to its power to grant any relief which alters in any way that relation between the parties which arises by law from their marriage. It applies, therefore, as it seems to me, to suits for judicial separation and to suits for the restitution of conjugal rights. I do not think it does apply to suits for a declaration of nullity of marriage or in respect of jactitation of marriage. I do not think that the statute binds the Court to entertain and exercise a jurisdiction in matters over which, according to the comity of nations, as interpreted by English judges, and acted upon by the English Parliament in its quasi judicial legislation, the English law ought not to assume authority. It is true that the words of the statute are general; but general words in a statute have never, so far as I am aware, been interpreted so as to extend the action of the statute beyond [*20] the territorial authority of the legislature. All criminal statutes are in their terms general; but they apply only to offences committed within the territory or by British subjects. When the legislature intends the statute to apply beyond the ordinary territorial authority of the country, it so states expressly in the statute, as in the Merchant Shipping Act, and in some of the Admiralty Acts. If the legislature of England in express terms applies its legislation to matters beyond its legislatorial capacity, an English Court must obey the English legislature, however contrary to international comity such legislation may be. But unless there be definite express terms to the contrary, a statute is to be interpreted as applicable and as intended to apply only to matters within the jurisdiction of the legislature by which it is enacted. In this statute there are no such definite express terms. It may be observed, moreover, that the preamble confines the purview of the statute to English matrimonial causes. It does not say to British causes, but to English causes. It thus limits the statute and the action of the Court to a part only of her Majesty’s dominions or subjects. It cannot be confined to matrimonial offences committed in England, or it would not reach the case of a matrimonial offence committed abroad by a domiciled English husband or wife. Yet it is confined to an English matrimonial cause. It seems to me to follow that it is confined to a matrimonial offence committed by persons domiciled in England. I am of opinion that, upon principles of law, irrespective of the terms used in the statute which are relied on, the Court had no jurisdiction, and that the statute did not by any terms used in it give jurisdiction in this case. I am therefore of opinion that the judgment should be affirmed.

 

COTTON, L.J. The facts on which this case comes before us have been already sufficiently stated, and it is unnecessary for me to repeat them. I agree with the judge of the Court of Divorce that the fact of the respondent having in 1863 presented a petition to that Court of Divorce seeking for a dissolution of his marriage with his wife, the present petitioner, which was in 1865 dismissed, does not give that Court jurisdiction. The question is, whether, independently of that circumstance, the Court of Divorce has [*21] jurisdiction to make a decree against a respondent not domiciled in England. In considering this question it must be remembered that the respondent has been resident in this country, not casually or as a traveller, but for several years, and that the adultery – the breach of the matrimonial contract on which the petitioner bases her claim to relief – was committed in England. Moreover, the respondent was resident in England at the time when the petition was presented and was served in England with the process of the Court; and the question is, not whether the respondent was liable to be called on to defend himself in the court, but whether the Court has under the circumstances jurisdiction as against a person duly cited to appear before it to make the decree prayed – that is jurisdiction over the subject-matter of the suit. The decision depends on the true construction and effect of the Act 20 & 21 Vict. c. 85. In any court in England that is the only question, for it has been long established that aliens coming into this kingdom are bound by its statutes if on their true construction applicable to them. The petition contains a prayer for general relief, but the only question argued, and that which we have to decide is, whether the Court of Divorce has jurisdiction to dissolve the marriage. I shall, however, for the purpose of arriving at a decision on this point, first consider whether the Court has jurisdiction to grant the petitioner any relief at all. The preamble of the Act recites that it is expedient to establish a Court with exclusive jurisdiction in matters matrimonial in England; and s. 6 vests in her Majesty all jurisdiction exercised by any Ecclesiastical Court in England, and directs that this shall be exercised by the new Court established under the Act. Has this Court jurisdiction to entertain a petition for restitution of conjugal rights or for a judicial separation presented by one of two married persons against the other where both are resident though not domiciled in England, and where the breach of the matrimonial compact has been committed in England either by refusal to cohabit or by adultery? A judgment for either of these objects is, in my opinion, not open to the objection mainly relied on in support of the judgment of the Court below, namely, that a decree for dissolution would alter the status of the spouses, and that this depends on the law of their domicil, and ought to be left to the [*22] Courts of the country where that may be. If we are to consider the question of public policy, assuredly every state has an interest in taking measures to secure that all residents within its local limits shall faithfully perform the obligations of the marriage contract. But the question is as to the effect of the Act. The complaint of the injured party in the case which I have supposed would, in my opinion, be a matrimonial matter arising in England, and therefore one for the decision of which the Court was constituted. Moreover, the Diocesan Courts, whose jurisdiction is vested in the Court of Divorce, looked to the residence not to the domicil of the respondent for the purpose of deciding whether a suit could be entertained; and I see no reason for supposing that an Ecclesiastical Court, acting pro salute anim3Ú4, would have declined to interfere against an offending husband or wife in respect of an act committed within the local limits of its jurisdiction, because the parties though resident within those limits were domiciled elsewhere. There is, in my opinion, no sufficient reason for limiting the right and liability to sue and be sued in the Court of Divorce to persons domiciled in England; and my opinion is, that under the circumstances of this case the Court of Divorce has jurisdiction to entertain a petition for judicial separation against the respondent. If so, has it under s. 27 jurisdiction to entertain a petition for dissolution of marriage? In my opinion it has. That section is in the most general terms. It gives to any husband or any wife power under certain circumstances to present a petition for dissolution; and s. 31, subject to certain exceptions not applicable to the case which we are now considering, gives the petitioner, on proof of his or her case, a right to a decree for dissolution. No doubt the words “any husband and any wife” must be subject to some limitation. They cannot be considered as giving to a husband or wife resident and domiciled abroad a right to petition against a wife or husband, neither resident nor domiciled here; but, in my opinion, this section gives to any husband or wife, who under the earlier provisions of the Act would have a right to apply to the Court for relief, power to present a petition for the remedy given by ss. 27 and 31; and I am of opinion that the Court cannot on the reasonable construction of the Act disclaim jurisdiction to entertain a [*23] petition under s. 27 against the respondent, without holding that the Court has no jurisdiction to give the petitioner any relief in the matter. I have already stated my opinion that the Court has jurisdiction to entertain a petition in such a case as the present against the respondent for judicial separation; and the result, in my opinion, is that he cannot successfully dispute the jurisdiction of the Court to decree a dissolution of his marriage. It is, however, necessary to deal with the argument that the effect of a decree maintaining the jurisdiction of the Court in this case may be that, inasmuch as status depends on the law of the country of domicil, the respondent and the petitioner, though in this country no longer husband and wife, may in other countries be still so regarded. It is true that this may be the result, but the question before us is what on the true construction of the Act is the jurisdiction of the Court – in other words, what is the relief given by the Act to the wife as against her offending husband. I cannot hold that the difficulties which may arise from a decree for dissolution are sufficient to prevent the Court from acting on what, in my opinion, is the true construction of the Act.

 

Warrender v. Warrender (1) was much referred to during the argument, but that case cannot in any way be relied on as a decision in favour of the petitioner’s right to sue here, because in that case, in which there was a divorce in the Scotch Court, the domicil of the parties was Scotch. But Lord Lyndhurst in that case, on the assumption that the decree of a Scotch Court would not in England affect the personal status of persons who, though domiciled in Scotland, were married in England, deals with the argument based on this objection in a passage which may usefully be referred to. He says(2) that if these difficulties arise on the true construction of the Act of Parliament, it is for the legislature to amend the matter by legislation, and not for the Court to do so apart from its ordinary rules in construing statutes.

 

In support of the view that the Court of Divorce has no jurisdiction over a person resident but not domiciled in England, cases have been referred to in which the Court has relied on the domicil of the defendant as giving jurisdiction against a person not resident here. But these cases are not authorities that there is no jurisdiction

 

(1) 2 Cl. & F. 488.

 

(2) 2 Cl. & F. at p. 560. [*24]

 

against a person resident though not domiciled here. In each case the decision must be taken with reference to the facts before the Court, and a decision that to give the Court jurisdiction as against a respondent not resident in England it is necessary to prove that his domicil is in this country, does not establish that where there is residence in England there must also be domicil here. It is unnecessary to refer to all the cases which have been cited or referred to during the argument. I will, however, refer to one or two of them. In Yelverton v. Yelverton (1), which was a case relied upon as supporting the judgment under appeal, the respondent was not domiciled in England or resident here; and the decision in effect was that the Court had no jurisdiction to cite him – that is no jurisdiction over him personally, he not being resident here, and that the fact of his not being resident here was pointedly before the learned judge when he gave his judgment appears from a passage of the report(2): “Major Yelverton is not an Englishman; he never had a residence in England, nor was he ever guilty of any misconduct towards the plaintiff in England; and from the passage which I have read from the report of Carden v. Carden (3), I infer that Dr. Lushington would have held that there was no jurisdiction unless evidence had been given of some residence in England. That foundation was laid in every case that was cited, and I cannot treat any one of them as an authority for overruling Major Yelverton’s protest.” In Tollemache v. Tollemache (4), another case relied upon, the Court, on the petition of the husband, granted a decree of divorce after a decree for divorce obtained by him in Scotland, but did so not on the ground that the decree of the Scotch Court was void in Scotland, but because, assuming that the decree obtained in Scotland was sufficient to enable the divorced wife to marry in that country, which assumes that the Scotch Court had jurisdiction, it did not give the petitioner – the man who was domiciled in England – a personal capacity to marry there. That is in effect that the decree of the Scotch Court for Divorce, though effectual there, was of no effect in England. In Tovey v. Lindsay (5) the House

 

(1) 1 Sw. & Tr. 574.

 

(2) 1 Sw. & Tr. at p. 590.

 

(3) 1 Curt. 558.

 

(4) 1 Sw. & Tr. 557.

 

(5) 1 Dow. 117. [*25]

 

of Lords did not pronounce any final decision, and the question was whether a wife, who was residing in England and living separate from her husband under the provisions of a deed of separation, could be cited to appear in Scotland where her husband was domiciled. It was a question of jurisdiction over the person of the defendant, not over the subject of the suit.

 

In my opinion there is no authority – certainly none binding on this Court – for holding that in this case the Court has no jurisdiction to decree a dissolution. I think that on the true construction of the Act the Court ought to entertain the petition, and that the judgment dismissing the petition on the ground of want of jurisdiction ought to be reversed.

 

Protest overruled and action remitted.