[PROBATE, DIVORCE AND ADMIRALTY DIVISION]

NIBOYET v. NIBOYET.

Divorce - Foreigner - Jurisdiction.

N., a Frenchman, acting as French consul in this country, filed a petition in the English Divorce Court for dissolution of his marriage, and afterwards consented to its dismissal.

His wife then filed a petition in the same Court for dissolution of the marriage. The wife was a British subject at the time of the marriage, which was celebrated at Gibraltar, and the alleged adultery by her husband, and the greater part of the desertion, occurred in England:-

Held, that the English Court had no jurisdiction to dissolve the marriage.

ON the 23rd of October, 1876, Caroline Prudence Niboyet, filed a petition in the Divorce Division of the High Court of Justice, praying for a dissolution of her marriage, and alleging adultery, coupled with desertion, for two years and upwards. The petition alleged in substance as follows:-

1. Her marriage on the 25th day of October, 1856, with Jean Alexander Paulin Niboyet, at the church of the Holy Trinity, Gibraltar.

2. Cohabitation at Seville, in Spain, at divers places in Paris, in France, and at Stockholm, in Sweden, and issue of the marriage two daughters, aged nineteen and seventeen years.

3. Desertion for two years and upwards without reasonable excuse.

4 and 5. Adultery, with Phoebe Winter, at 22, Tatham Street, Sunderland, in the county of Durham, and elsewhere in the neighbourhood thereof, since 1867.

On the 16th of November, 1876, the respondent filed his act on petition, which in substance, alleged as follows:-

1. The respondent was born of French parents at Ma�on, in the republic of France, in the year 1826, and had there his domicil of origin.

2. The respondent first left France in the year 1848, in the service of the French Foreign Office, and held various appointments in the consular service of the said government, at various places out of France and out of the jurisdiction of this honourable Court, between the years 1848 and 1862.

3. In the year 1862, the respondent was appointed by the said government, vice consul at Sunderland, in England, and resided there in the discharge of his consular duties, until the year 1869.

4. Between the years 1869 and 1875, the respondent held appointments in the consular service of the said government at places out of France and out of the jurisdiction of this honourable Court.

5. In the year 1875, the respondent was appointed by the said government, acting consul at Newcastle-on-Tyne, in England, and resided there in the discharge of his consular duties and not otherwise, from the time of such appointment until the commencement of this suit. At or about the time of the commencement of this suit, the respondent was withdrawn from his said consular appointment at Newcastle-on-Tyne aforesaid, and proceeded to Paris by direction of the said government.

6. During the whole period of the respondent's absence from France, as aforesaid, he retained his French domicil, and has not now and never has had any domicil in England.

On the 6th of December, 1876, the respondent filed her answer which, amongst other things, stated as follows:-

1. That the respondent by petition to this honourable Court, dated the 19th May, 1863, charged the now petitioner with adultery with a person herein named, and prayed that his

marriage with the said petitioner should be dissolved by rewon of the adultery therein alleged.(1)

2. That by an order of this Court bearing date the 21st of March, 1865, the petition of the said respondent was dismissed on payment of the costs incurred by the then petitioner.

3. That the petitioner's domicil of origin was English.

4. That the marriage of the petitioner with the respondent took place within the British territory of Gibraltar.

5. That on or about the month of April, 1859, the respondent deserted the petitioner.

6. That since about the month of April, 1859, to the present date, the petitioner has lived at divers places in England.

7. That the adultery charged against the respondent is alleged to have taken place in England during his residence at Sunderland, aforesaid.

(1) The following is the substance of the proceedings in that suit:-

Petition.

1. "The marriage.

2. "Cohabitation at Seville, in the kingdom of Spain, at No. 7, Calle de las Sierpes, and at No. 77, Rue Notre Dame des Champs, Paris, in the empire of France, at No. 3, Rue des Suassaires, Paris, aforesaid, at the Chancery of the French Legation at Stockholm, in the kingdom of Sweden, and at No. 30, Boulevard des Batignolles, Paris, aforesaid, and issue of the said marriage two daughters.

3. "Adultery by the respondent in the months of July, August, and September, 1861, at St. Valery-sur-Somme, in the Department of the Somme, in the empire of France, with Leon Chapotin, and in the months of July and August, 1861, at Cayeux, in the Department of somme, in the empire of France, with the said Leon Chapotin.

4. "Adultery between October and the date of the petition at No. 11, Rue Menil Montant, at No. 30, Boulevard des Batignolles, and at No. 4, King St. George aux Batignolles, Paris, and other places in the said city of Paris, and empire of France, with the said Leon Chapotin."

Answer by respondent denying the allegations of the petition, and joinder of issue.

Motions to take directions as to evidence, and for a commission to examine witnesses abroad which were ordered to stand over.

An order to amend petition.

Both motions again in the paper, and ordered to stand over at Mr. Niboyet's request, which was the last proceeding he took in the suit.

March 21st, 1865. Mrs. C. P. Niboyet's counsel moved the Court to dismiss her husband's petition for want of prosecution.

"March 21st, 1865. Order dismissing suit. Upon reading affidavit and hearing counsel for the respondent, and by consent of the petitioner the judge dismissed the petition upon the petitioner paying to the respondent the costs incurred in her defence, and the costs of appearing on this motion."

On the 22nd of December, 1876, the respondent rejoined, stating, amongst other things, as follows:-

1. Admits the statements contained in paragraphs 3 and 4 of the said answer, but says that no judgment or decree was pronounced by the Court in such proceedings, and the question of the jurisdiction of the said Court to entertain the said petition was not in any way determined.

The respondent filed an affidavit, in which he stated as follows:

1. I hold at the present time the official rank of consul of France, and my legal and political domicil is at Paris, aforesaid. My mother resides at 82, Rue d'Amsterdam, aforesaid, and my permanent place of abode is at her residence.

2. I have been successively chancellor, vice-consul or consul in the Sandwich Islands, at Leipsic, Germany, at Seville and Algleiras in Spain, at Stockholm in Sweden, at Chicago in North America, and at Sunderland in the county of Durham, in England.

3. In consequence of the illness in May, 1875, of Mr. Bellaighe de Bughas, the present French consul at Newcastle, I was directed by the French Ministry of Foreign Affairs to proceed to Newcastle as French consul, ad interim, or acting French consul there during the temporary absence on leave of the said Mr. Bellaighe de Bughas. I accordingly went to Newcastle on the 24th of May, 1875, in such capacity of French acting consul or French consul, ad interim, for a period of three months. This period has been prolonged from time to time by reason of the continued indisposition of the said Monsr. Bellaighe de Bughas, but his leave will expire on the 24th of May next, and that is the extreme limit to which such leave can be extended, and on or before that date he will consequently have to return to Newcastle. My duties as acting consul at Newcastle, aforesaid, will then cease, and on their so doing it is my intention immediately to return to Paris, aforesaid.

4. I have no permanent house or place of abode at Newcastle or elsewhere in Great Britain. Since I have been at Newcastle I have been residing in furnished lodgings only; and I possess no real property whatever in England, and have no money invested in English securities.

5. I have supported my wife since the time when we have been

living apart, being a period of about eighteen years, and have made her during such time a monthly allowance of 12l., and this amount has been duly paid to her.

The respondent having failed to set down the act on petition within the proper time, the petitioner set it down; and on the 16th of May, 1877, notice thereof was duly served upon the respondent's solicitors.

At the hearing the respondent failed to appear, and thereupon the Queen's proctor, by direction of the Court, intervened, and submitted for argument the following questions, viz.:-

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 ciroumstances of this case give it jurisdiction?

Inderwick, Q.C., and Dr. Swabey, for the petitioner. The first petition having been filed by the present respondent and dismissed with his consent, he has thereby submitted to the jurisdiction of this Court as to his marriage: Enohin v. Wylie(1); Mordaunt v. Moncreiffe(2); Tollemache v. Tollemache(3); Ratcliff v. Rat-cliff(4); Deck v. Deck(5); Bond v. Bond.(6) The case of Brodie v. Brodie(7) is conclusive, for in that case it was admitted there was no domicil, and the only ground of jurisdiction was a residence at the time of the suit. In this case the wife was an English woman at the time of the marriage. The marriage was in British territory, and the adultery and the greater part of the desertion were in England; and the respondent was, at the time of service of the proceedings in the suit, living within the jurisdiction. The wife has been resident here since 1859. There is a clear distinction between the subject-matter of the suit and a personal exception: Pothier, TraitŽ de la Procedure Civile de I'Incompetence, cap. ii. § 2, pp. 18, 19. The personal exception may be waived: Enohin v. Wylie.(1) Domicil alone is sufficient

(1) 31 L. J. (Eq.) 402.

(2) Law Rep. 2 Sc. & Div. App. 374.

(3) 1 Sw. & Tr. 557.

(4) 1 Sw. & Tr. 467.

(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) 2 Sw. & Tr. 259.

for jurisdiction: Wilson v. Wilson.(1) In Le Sueur v. Le Sueur(2) no reference was made to the statute 20 & 21 Vict. c. 85, but by the 27th section "any wife" may present a petition.

Gorst, Q.C., and Greenwood, contrˆ. Domicil is the test of jurisdiction in these cases. Consent cannot give jurisdiction: Callwell v. Callwell and Kennedy.(3) The domicil of the wife is that of her husband: Sottomayor v. De Barros.(4) Residence is not sufficient, there must be domicil: Firebrace v. Firebrace(5), Phillimore on International Law, 2nd ed. vol. iv. p. 347, § 496; Pothier, Introd. Contr. de Marr., No. 522; Story's Conflict of Laws, § 46; Bishop on Marriage and Divorce, 4th ed. vol. ii. § 124; Yelverton v. Yelverton(6); Warrender v. Warrender(7); Dolphin v. Robins(8); Pitt v. Pitt(9); Shaw v. Attorney-General.(10)

Inderwick, Q.C., in reply.

1878. May 23. SIR ROBERT PHILLIMORE. This is a suit for divorce by reason of adultery and desertion, and is brought by Caroline Prudence Niboyet against her husband Jean Alexandre Paulin Niboyet. The marriage took place on the 25th of October, 1856, at Gibraltar, according to the rites of the Church of England, and there are now living, the issue of that marriage, two daughters, one of nineteen and the other of seventeen years of age. The wife states in her petition that the husband has deserted her for two years and upwards, and that he committed adultery in the year 1867, and has continued this intercourse up to the present time.

The citation was personally served on the husband at Newcastle-on-Tyne, where he resides. He has entered an appearance and filed an act on petition, but has not appeared in court personally or by counsel. In the act on petition he sets forth that he is a Frenchman by origin and domicil, being employed in this country as a consular officer of the French Republic, and for these reasons is not subject to the jurisdiction of this Court. The wife admits

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

(2) Law Rep. 1 P. Div. 139.

(3) 3 Sw. & Tr. 259.

(4) Law Rep. 2 P. Div. 81.

(5) Not yet reported.

(6) 1 Sw. & Tr. 574.

(7) 2 Cl. & F. 563.

(8) 7 H. L. C. 300.

(9) 4 Macq. 627.

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

the facts stated, but denies the legal conclusion and maintains that notwithstanding her husband is by origin and domicil a foreigner, he is amenable to the jurisdiction of this Court; and she further maintains that he has by a former act submitted himself to this jurisdiction, and cannot now repudiate it. It may be as well to deal first with the last of these positions.

The former act of alleged submission is that in May, 1863, he petitioned this Court for the dissolution of his marriage on the ground of the adultery of his wife. The petition was never heard, and was dismissed apparently by consent of both parties in March, 1865. I have no hesitation in pronouncing that these circumstances do not constitute a submission on the part of the husband to the jurisdiction of this Court. It is, therefore, unnecessary to consider the serious question whether consent of parties, if it had been given, would found a jurisdiction not otherwise given

The main argument addressed to me, in support of the petitioner's contention that her husband is amenable to the jurisdiction of this Court, has been derived from the words of the statute 20 & 21 Vict. c. 85 (The Divorce and Matrimonial Causes Act). It has been contended that the language of the 27th section of that Act, which founds the jurisdiction of this Court in the matter of the dissolution of the marriage bond, renders it unnecessary that the husband, against whom the wife brings her suit, should be either an English subject or domiciled in England. The words of the section referred to as establishing this position are the following:- "It shall be lawful for any husband to present a petition to the said Court praying that his marriage be dissolved on the ground that his wife has, since the celebration thereof, been guilty of adultery; and it shall be lawful for any wife to present a petition to the said Court, praying that her marriage may be dissolved" on the grounds which are in the section stated. Any husband or any wife, it is insisted, to whatever country they may belong, however short a time he or she may have been in England, is entitled to call upon this Court to annul the contract of marriage, and alter the status of a foreign subject.

This is, indeed, a very startling proposition, and one, in my judgment, so much at variance with the true principles of private international law that I should be very loath to find myself compelled

to assent to it. I do not think it was the intention of the legislature to give to this Court such unlimited authority over the status of foreigners. The preamble of the statute says, "Whereas it is expedient to amend the law relating to divorce, and to constitute a Court with exclusive jurisdiction in matters matrimonial in England," &c. The statute does not extend to any other countries, but if every foreign visitor in England were liable to its jurisdiction, it would practically extend not only to Ireland and Scotland but indeed to every foreign state, whose subject happened to be for any temporary purpose in this kingdom. I think it was not intended to give this Court the general jurisdiction which has been contended for in this case. In the recent case of Firebrace v. Firebrace(1), the president said, "The domicil of the wife is that of the husband, and her remedy for matrimonial wrongs must usually be sought in the place of that domicil." In the case of Wilson v. Wilson(2), Lord Penzance said:" 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 where any residence in this country short of domicil, 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." I am afraid this statement is correct. It is to be observed, however, that in the present case the husband is not only a foreign subject, but is employed in this country in the discharge of duties belonging to a foreign public office which incapacitates him from acquiring a domicil in this country.

I think it unnecessary to examine in detail the cases which have been cited, as I recently had occasion to refer to, and examine, them in the case of Le Sueur v. Le Sueur(3). In the case just cited of Wilson v. Wilson(4), Lord Penzance said: "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 all the parties, in all cases, referring their matrimonial differences to the Courts of the country in which they are domiciled. Different communities have different views and laws respecting matrimonial obligations, and a different estimate of the cases which should

(1) Not yet reported.

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

(3) Law Rep. 1 P. Div. 139.

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

justify divorce. It is both just and reasonable, therefore, that the differences of married people should be adjusted in accordance with the laws of the community to which they belong, and dealt with by the tribunals which alone can administer those laws. The honest adherence to this principle, moreover, will preclude the scandal which arises when a man and woman are held to be man and wife in one country and strangers in another." With these remarks, so far as they relate to the dissolution of the marriage bond, I agree. Upon the whole I think myself bound both on principle and by precedent to pronounce that the Court has no jurisdiction in this suit, and I must therefore dismiss it.

Solicitors for petitioner: Chapman, Turner, & Pritchard.

Against the petition: Queen's Proctor.