MORRIS v. MORRIS

065-NLR-NLR-V-40-MORRIS-v.-MORRIS.pdf


246
Morris t>. Morris.
1938
Present: Koch J.
MORRIS u. MORRIS.
S. C. No. I—Divorce.
Divorce—Action by wife resident in Ceylon—Husband domiciled in England—Domicil of wife—Requirement of Order in Council, 193S—Indian andColonial Divorce Jurisdiction Act, 1926, s. 1.
By the Ceylon Divorce Jurisdiction Order in Council, 1936, theprovisions of section 1 of the Indian and Colonial Divorce JurisdictionAct, 1926, were applied to Ceylon: Under that section, read togetherwith the terms of the Order in Council, the Supreme Court was vestedwith jurisdiction to grant a divorce where the parties to the marriageare British subjects domiciled in England or Scotland, provided thepetitioner resides in Ceylon at the time of presenting the petition,that the place where the parties last resided together was in Ceylon,and that either the marriage was solemnized in Ceylon or the adulteryor the crime complained of was committed in Ceylon.
The petitioner asked for a divorce from her husband on the ground ofmalicious desertion. The petitioner alleged that she was a permanentresident of Ceylon, which was her domicil of origin and that her husbandwas an Englishman domiciled in England at the time of marriage.
Held, that the petitioner by her marriage acquired a new domicil—the domicil of her husband—and that she was therefore a British subjectdomiciled in England within the meaning of the section.
HIS was a petition for divorce presented to the Supreme Court
under the Ceylon Divorce Jurisdiction Order in Council, 1936,by the petitioner, who was resident in Ceylon, aganist her husbandwho was an Englishman domiciled in England at the time of hermarriage.
N. Nadarajah (with him O. L. de Kretser, Jr.), for petitioner.—TheIndian and Colonial Jurisdiction Act of 1926 (16 & 17 Geo. V., C. 40)confers jurisdiction on Courts in India in certain cases with respect to dis-solution of marriages, the parties to which were domiciled in England orScotland. This Act has been extended to Ceylon by Order of HisMajesty in Council published in Government Gazette of July 1, 1936, andentitled “ The Ceylon Divorce Jurisdiction Order in Council, 1936 ”. This
T
2 (19131 IT N. I.. R. 195.
(1894) A. C. 360.
21J N. L. R. 494.
KOCH J.—Morris v. Morris.
247
Order in Council confers jurisdiction upon the Supreme Court of Ceylon.Special rules have been framed by theLordChancellor in regard to procedureand to the allegations that the petition for divorce should contain. Theserules will be found in Government Gazette of July 2, 1936: Statutory Rulesand Orders No. 742 of 1936. In this case the respondent is an Englishmandomiciled in England and is now residing in Surrey. The petitioner is aninhabitant of Ceylon and was married to respondent in Ceylon. Bymarriage her domicil became English—vide Dicey, p. 134 of 3rd ed. Priorto Matrimonial Causes Act of 1937 a divorce in England was allowedonly on adultery and desertion. By Act of 1937 operating from January 1,1937 (1 Ed. VIII. & 1 Geo. VI., C. 57) the law has been amended andmalicious desertion is made a ground for divorce, vide section 2 of the Act.In this case the petitioner alleges desertion without cause for over aperiod of 3 years. The petition has now been amended to conform to:requirements of rules framed by the Lord Chancellor and there is anaffidavit of petitioner deposing the facts necessary to obtain a decree ofdivorce. In the case of Le Mesurier v. Le Mesurier ’ it was held thatthe District Court in Ceylon had no jurisdiction to grant divorce in thecase of a married person who had domicil out of Ceylon, vide also Case v.Case'. It was to remedy the hardship caused by this legal situationthat the Indian and Colonial Jurisdiction Act of 1926 was passed. ThisAct has now been extended to Ceylon and the Supreme Court has beengranted Original Civil Jurisdiction to make decrees for dissolution ofmarriages where parties are British subjects domiciled in England orScotland on grounds on which decree for dissolution of marriage may begranted by the High Court in England according to the law for the timebeing in force. It is clear law that where a woman marries a man shetakes his domicil, vide Dicey’s Conflict of Laws (3rd ed.) p. 134, thereforethe petitioner in this case though resident in Ceylon acquired domicilof husband which was English, vide Warrender v. Warrender'. Thepetitioner is therefore entitled to summons on respondent.
Cur. adv. vult.
July 11, 1938. Koch J.—
Under and by virtue of the terms of an Order in Council named theCeylon Divorce Jurisdiction Order in Council, 1936, a petition fordivorce a vinculo matrimonii on the ground of malicious desertion hasbeen presented to this Court by Mary Ethel Helen Morris nee Spaar of LadyMacCarthy road, Kandy, against her husband Robert Wallace Morris ofLunn House, 46a, Park Road, East Molesey, Surrey, England.
It has been ordered by this Order in Council that on or after July 1,1936, the provisions of the first section of the Indian and Colonial DivorceJurisdiction Act, 1926, shall apply to the Island of Ceylon in like manneras they apply to India, and in the Preamble, that it shall be subjectto the necessary modifications which are set out. It is further orderedthat the Court which has to exercise jurisdiction in respect of a petitionso presented under this Order in Council shall be the Supreme Court ofCeylon.
11 N. L. R. 160.2 37 Times L. R. 499.
a (1835) 2 Cl. <* F. 468.
248
KOCH J.‘—Morris v. Morris.
In pursuance of the powers conferred by the Indian and ColonialDivorce Jurisdiction Act, 1926, and by the Ceylon Divorce JurisdictionOrder in Council, 1936,'the Secretary of State for the Colonies with theconcurrence of the Lord Chancellor made certain Rules which have to becomplied with. These rules are described as “ The Ceylon (Non-DomiciledParties) Divorce Rules, 1936 ”, and are dated July 1, 1936. The petition.as originally presented was defective in certain particulars as requiredby these Rules. I, therefore, made order returning the petition foramendment and compliance in respect of those particulars. This hasnow been done and the petition as amended is before me.
Now, section 1 of the Indian and Colonial Divorce Jurisdiction Act,1926, read side by side with the terms of the Order in Council referredto would give the Supreme Court of Ceylon jurisdiction to make a decreefor the dissolution of a marriage where the parties to the marriage areBritish subjects domiciled in England or Scotland, provided that thepetitioner resides in Ceylon at the time of presenting the petition, thatthe place where the parties last resided together was in Ceylon, and thateither the marriage was solemnized in Ceylon or the adultery or crimecomplained of was commited in Ceylon.
The petition discloses that the petitioner is residing in Ceylon and thatthe parties last resided together in Ceylon till the year 1932. It. alsosets out that the marriage took place in Ceylon and that the matrimonialoffence complained of was committed in Ceylon. To this extent thepetition complies with the requirements of the law. But there remainsthe fundamental essential as to whether the parties to the marriageare British subjects domiciled in England or in Scotland. So far as therespondent is concerned, the petition sets out the fact that he is anEnglishman who has his domicile in England, that that was his domicileat the time of the marriage, and that he is at present residing there.The difficulty arises with regard to the domicile of the petitioner.
The petitioner alleges that she is a “ native of Ceylon ” and a“permanent resident of Ceylon”; in other words that her domicile oforgin is Ceylon. If that – domicile still continues, there can be noquestion that her petition will have to be rejected on the ground that thisCourt in that event will have no jurisdiction to entertain it. Buthas she, by reason of her marriage, acquired a new domicile, that domicilebeing that of her husband ? If this is the case then this requirement toowill have been complied with.
Before dealing with the authorities on this point, I wish to refer to oneor two of the Statutory Rules already mentioned.
Rule 6 (1) requires that in the body of the petition shall be statedthe place and date of the marriage, and the name, status and domicileof the wife before the marriage ; while Rule 6 (2) requires that the statusof the husband and his domicile at the time of the marriage should be stated.It is significant that while it is necessary to state the domicile of thehusband at the time of the marriage, there is no requirement that thedomicile of the wife at the time of the marriage should be stated, but onlyher domicile before the marriage. This presumbly is due to the factthat by her marriage it is possibly contemplated that her domicile mightbe changed.
KOCH J.—Morris v. Morris.
249
In Warrender v. Warrenderthe facts were that a Scotchmandomiciled in Scotland was married to an English woman in England.After the marriage, the parties resided first in Scotland and thereafter inEngland, where a mutual separation took place and the wife went out toreside abroad. The husband continued to be domiciled in Scotlandand there raised an action for divorce against her on the ground ofadultery alleged to have been committed abroad. It was held by theHouse of Lords that the wife’s legal domicile was in Scotland where thehusband was, and that she was amenable to the jurisdiction of theScotch Court. The importance of this decision is that in spite of themutual separation and the living abroad her marriage domicilecontinued.
In Dalhousie v. M’DonnallJ, Lord Brougham at page 884 express-ed himself thus, “ If the domicile was not the same for both parents. . . . we should hold that that of the father at the time of themarriage should give the rule Again at page 886 he said, “ My Lords,with respect to the case of Warrender v. Warrender, undoubtedly as faras that case goes it is in favour of the legitimacy here because the domi-cile of the parties was clearly held to be Scotch. An attempt was madeto show that Lady Warrender’s domicile was not Scotch with a view toanother branch of the argument but we all agreed here that her domicilewas the dimidle of th? husband and that both parties had a Scotchdomicile ”.
In William v. Dormer it was held that a wife is legally domiciledwhere the husband was, but this may not apply after a decree ofdivorce was pronounced.
In In re Daly', the facts were that the wife, Mrs. Blagrave, wasmarried to an Englishman who had his domicile in England. A fewyears later she separated from her husband and went to reside in Paris.There was no judicial separation. In considering the validity of a testa-mentary disposition made in France according to the mode thereprevailing, the Master of the Rolls, Sir John Romilley, was of opinionthat the disposition was good according to the French law but thatraised the question whether Mrs. Blagrave could obtain a domicile inFrance different from that of her husband. He was of opinion that shecould not.
In Dolphin v. Robinss, a wife, who was married to her husband inEngland and whose domicile was England, later sued out in the ScotchCourts a process for the dissolution of her marriage on account of.adultery committed by her husband in Scotland and obtained a decreefor divorce a vinculo matrimonii. She, thereafter, married a Frenchmanarid went with him to his domicile in France. Nearly two years later,she executed in France a holograph will (valid according to the laws ofthat country) revoking all previous wills. The question arose whetherthe holograph will made in France had the effect of revoking a will whichshe had previously executed in England. This depended on whether
(1835) S Cl. F. 468—English Reports, vol. 6, page 1239.
(1840) 1 Cl. <t F. Sir.4 (1858) 25 Beav. 456.
s (1862) 2 Rob. Ecc. 505.5 (1659) 7 H. L. Cases 390.
250
KOCH J.—Morris v. Morris.
her domicile was in England or in France. Had she acquired a newdomicile in France by reason of her second marriage and her stay inFrance, the holograph will would have prevailed, but it was held that theScotch decree of divorce had no effect and therefore she continued to bemarried to her first husband; that as his domicile continued to be inEngland and as his domicile was her domicile, she was a domiciledEnglishwoman; that the will executed in France, not having beenexecuted in the mode which was required by the English law, had noeffect on the will which she had previously executed in England; andthat the English will was rightly admitted to probate.
The point in the case is that all the three learned Judges were firmlyof opinion that the husband’s domicile was the wife’s domicile; but thequestion whether the wife had the power to change her domicile afterobtaining a divorce or a judicial separation from her husband was leftan open matter.
Dicey, in his work on the " Conflict of Laws ” (5th ed., at p. 107) indealing with Rules on the Domicile of Natural Persons, sets out Rule 8,sub-rule (2) thus :—
“ The domicil of a married woman is, during coverture, the same as,
and'changes with, the domicil of her husband. ”
He refers to several cases some of which I have already dealt with.
Pothier, in his "Introduction Contra de Mar. No. 552”, says that fromthe instant of the marriage the domicil of the husband becomes that ofthe wife.
Burge, in his work on Colonial Law (vol. 1.), at p. 35, says that the wifeby her marriage, even before she leaves her residence, acquires the domicilof her husband, and no longer retains that of her origin. The wiferetains the domicil of her husband even after the relationship is disturbedby the death of her husband, until she makes choice of and establishesanother domicil or remarries.
Voet (vol. I., 95 and 96) says that the wife by her marriage acquiresthe domicil of her husband and retains it even after her husband’s death'"until she makes choice of and establishes -another domicil or remarries.
In view of the authorities I have referred to, there would be justificationat present for my entertaining the petition, but in doing so, as the presentproceedings are ex parte, I leave it open to the respondent to show causeif so advised as to whether the petition has been rightly entertainedand whether the Court had jurisdiction to do so.
I accordingly direct that summons do issue. The summons will beserved on the respondent personally. The proctor for the petitionerwill within a month from to-day, after correspondence with his solicitorin England, inform this Court as to the mode of service he proposes,and this Court will then decide as to whether such mode meets with itsapproval. When summons has been served on the respondent, he isdirected to enter appearance within two months of the date of suchservice.