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*72 Rudd v Rudd. Divorce. J. Horridge

1923 Dec. 19. DivorceDomicilChange of Domicil of HusbandEffect on WifeValidity of Foreign Decree to dissolve English MarriageFailure to give notice of Foreign Proceedings to Party in EnglandSubstituted Service. Where a husband, domiciled in England, has acquired a new domicil leaving his wife in England, the wife will not be bound here by proceedings for divorce in the courts of her husband's new domicil, of which she has in fact had no knowledge and no notice. THE parties in this case were married at Withernsea in Yorkshire in October, 1912; they lived together there and in Hull, where the husband was employed in business, until May, 1914. There was no issue of the marriage. On May 30, 1914, the husband left his wife in Hull and went to Canada. He lived there, for the most part at Toronto, until July, 1917. He wrote to his wife at irregular intervals, his last letter being written from Vancouver on July 14. In October, 1917, the wife's solicitors made inquiries and succeeded in obtaining irregular remittances for her from her husband till April 30, 1921, after which date no money was sent and the solicitors' letters were not answered. About the end of January, 1921, the wife heard that her husband was living with another woman at Seattle in Washington State, U.S.A.; and after further inquiries it was found that her husband had on November 23, 1920, obtained a divorce in the Superior Court of the State of Washington for King's County, in which

Seattle is situated; and after six months, during which he was by the decree of divorce forbidden to marry, had married again. The American Court required that a copy of the complaint in the action should be posted in a registered letter to the last known address of the wife (this had been done, but it appeared that the address given by the husband was one at which the wife had never lived), and the Court ordered the summons in the action to be served on the defendant wife by publication*73 thereof for seven consecutive weeks in the Seattle Weekly News. This having been done, and the wife not having appeared within sixty days of the first publication, she was declared to be in default on October 25, 1920, and the decree of divorce was made on November 23. The wife had in fact no notice or knowledge of the proceedings until it was too late to appear or attempt to set them aside. As soon as she heard of the proceedings she had written a letter asking her husband to return. This letter was given to him personally, but he said he had no intention of ever returning to England. This petition for restitution of conjugal rights was then filed by the wife, and came on as unopposed on October 16, 1923. L. R. Lipsett for the petitioner. The petitioner has taken these proceedings merely as a means to get her status established. She desires to have it dismissed if the dismissal can be declared to be made on the ground that the American divorce is binding. Newton Crane K.C. (examined as an expert on American law) said that the jurisdiction of the Washington State Court was based not on domicil but on residence, but the residence must be bona fide and with an animus manendi. L. R. Lipsett referred to Briggs v. Briggs1 ; Mit-

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ford v. Mitford2 ; and Bater v. Bater.3 [HORRIDGE J. referred to Casdagli v. Casdagli4 , and said that he was not satisfied that the petitioner had had sufficient notice of the American proceedings, and should take steps to have the case argued, as was done by the President in Keyes v. Keyes and Gray.5 ] The case was adjourned and came on again on December 19. Sir Harold Smith K.C. and Noel Middleton appeared for the Attorney-General as amicus curi. *74 L. R. Lipsett, in continuation of his argument. The husband had acquired an American domicil. There is no suggestion that he did so fraudulently, and, therefore, the rule that the husband's domicil is that of the wife prevails. Domicil gives jurisdiction, and when a foreign court has jurisdiction the English Court will not inquire into its procedure. A foreign judgment in divorce is equivalent to a judgment in rem: Bater v. Bater.6 [HORRIDGE J. The difficulty here is that the wife never had any knowledge of the proceedings. He referred to Buchanan v. Rucker7 ; Le Mesurier v. Le Mesurier8 ; Pemberton v. Hughes9 ; Shaw v. Attorney-General10 ; and Colliss v. Hector. 11 ] Newton Crane K.C., recalled, said that the Washington decision could be appealed from within three months, and the parties could not marry again for six months, or, if there were an appeal, until the appeal was disposed of. The decree was undoubtedly valid in Washington State, but he doubted whether it would be held valid in all the States. Sir Harold Smith K.C. and Noel Middleton. Domicil is a question of fact, and the burden of proof of any change of domicil is on the party who alleges it: Hodgson v. De Beauchesne12 ; Winans v. Attor-

ney-General.13 There is no evidence in this case that the husband had, when he instituted these proceedings, acquired an American domicil, except some vague statement of his after litigation had begun. If, however, the American Court had jurisdiction by reason of the husband's domicil, the absence of actual notice to the wife would not invalidate the decree. There had been substituted service analogous to that allowed by English Courts. But even if the husband had acquired a domicil in America,*75 and the decree was valid there, it would not follow that the wife could obtain no relief here. The dicta of Gorell Barnes J. in Ogden v. Ogden14 , followed in Stathatos v. Stathatos15 and De Montaigu v. De Montaigu16 , show that where a husband has left his wife in the country of her original domicil, when he originally had, or has since acquired, a different domicil, the Court may treat the wife as still domiciled in her own country. In Armytage v. Armytage17 the Court applied the same principle by granting judicial separation to a wife resident in England though her husband was domiciled elsewhere. [They also referred to Bater v. Bater18 ; Deck v. Deck19 ; Harvey v. Farnie20 ; and Armitage v. Attorney-General.21 ] HORRIDGE J. This petition is filed by a wife seeking restitution of conjugal rights. A decree of divorce was obtained by the husband on November 23, 1920, in the Superior Court of the State of Washington in the United States of America. This suit is brought for the avowed purpose of testing the validity of that decree. The petitioner would like to have her present petition dismissed, as that would have the effect of determining her status; but I must decide the matter according to law. The questions to be decided are two: (1.) Did the respondent husband acquire a domicil in the State

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of Washington which his wife's domicil would follow, and which would thus become the domicil of both? (2.) Did the wife have any sufficient notice of the American proceedings? I am not speaking merely of the technical service upon her. Upon those two questions depends the validity of the American divorce. On the first point it is clear that both the parties had an English domicil of origin. They were married in England in 1912 and had their domicil here till 1914. The husband,*76 then departed from England and went to Canada and later to the United States. The date when he was last heard of is not clear. His wife knew nothing more of him till September, 1921, when she received notice of her having been divorced in America, after the time for appealing against that decree had expired. She was not then in a position to question the decree. In 1922 Sir T. Robinson went out and saw the husband about two years after the date of the decree. The husband then made declarations of his intention of making the United States his permanent home. Can I hold on that evidence that he had changed his domicil before the American proceedings, because on that question depends the validity of the American decree? Domicil of origin can be changed only by the strongest evidence of determination to acquire a fresh one of choice. I think that this is clear from the cases cited to me: Hodgson v. De Beauchesne22 and Winans v. Attorney-General.23 The onus of proof of a change of domicil is on the party who alleges it. I am not satisfied that the husband ever obtained an American domicil, and, therefore, I hold that the American Court, which pronounced the decree, had no jurisdiction. Secondly, whether or not the domicil be established, I find that the present petitioner found herself divorced without having had any notice of the proceedings. I must say that such a state of things is repugnant to my mind, even if it is good in law. It was indeed urged in argument that this was a matter inseparable from the question of the jurisdiction of the Court pronouncing the decree, and that it had

jurisdiction. Notice, it is said, was immaterial, service having been effected according to the practice of that Court. I believe, however, that there must be a notice of the proceedings to the party to be affected by them before the proceedings can bind that party. I find considerable authority for that proposition; one is Buchanan v. Rucker24 , where Lord Ellenborough C.J. says*77 (the case being one where the sufficiency of service upon an Englishman of proceedings in a colonial Court was discussed): "There is no foundation for this motion even upon the terms of the law disclosed in the affidavit. By 'persons absent from the island' (the colony in question) must necessarily be understood persons who have been present and within the jurisdiction, so as to have been subject to the process of the Court; but it can never be applied to a person who for aught appears never was present within or subject to the jurisdiction. Supposing however that the Act had said in terms, that though a person sued in the island had never been present within the jurisdiction, yet that it should bind him upon proof of nailing up the summons at the Court door; how could that be obligatory upon the subjects of other countries?" Another authority I find on this point is Shaw v. Attorney-General25 , where an American divorce was held to be incompetent for want of domicil. And on the question of notice Lord Penzance says: "No case has ever yet decided that a man can, according to the laws of this country, be divorced from his wife by the tribunals of a country in which he has never had either domicil or residence. He has never submitted himself, either directly or inferentially, to the jurisdiction of such a Court, and has never, by any act of his own, laid himself open to be affected by its process, if it never reaches him. A judgment so obtained has, therefore, in addition to the want of jurisdiction, the incurable vice of being contrary to natural justice, because the proceedings are ex parte and take place in the absence of the party affected by them." In Pemberton v. Hughes26 , where the validity of an American divorce was in question, Lindley

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M.R., from the initial remarks in his judgment, evidently thought that knowledge by the defendant of the proceedings, having time to enter an appearance, and the opportunity to defend, were material matters to consider in such a case; and Vaughan Williams L.J. says27 : "The true principle seems to me to*78 be that a judgment, whether in personam or in rem, of a superior Court having jurisdiction over the person, must be treated as valid till set aside either by the Court itself or by some proceeding in the nature of a writ of error, unless there has been some defect in the initiation of proceedings, or in the course of proceedings, which would make it contrary to natural justice to treat the foreign judgment as valid, as, for instance, a case where there had been not only no service of process, but no knowledge of it." The petitioner in this case had no knowledge of the American proceedings, so on this ground also the American decree cannot stand. There must be a decree for restitution of conjugal rights, to be obeyed within forty-five days of service, with costs. (J. R. B.)

12. (1858) 12 Moo. P. C. 285. 13. [1904] A. C. 287. 14. [1908] P. 46, 82. 15. [1913] P. 46. 16. [1913] P. 154. 17. [1898] P. 178. 18. [1906] P. 209. 19. (1860) 2 Sw. & Tr. 90. 20. (1880) 6 P. D. 35; (1882) 8 App. Cas. 43. 21. [1906] P. 135. 22. 12 Moo. P. C. 285. 23. [1904] A. C. 287. 24. 9 East, 192, 194. 25. L. R. 2 P. & M. 156, 162. 26. [1899] 1 Ch. 781.

1. (1880) 5 P. D. 163. 2. [1923] P. 130. 3. [1906] P. 209. 4. [1919] A. C. 145. 5. [1921] P. 204. 6. [1906] P. 209. 7. (1808) 9 East 192. 8. [1895] A. C. 517. 9. [1899] 1 Ch. 781. 10. (1870) L. R. 2 P. & M. 156. 11. (1875) L. R. 19 Eq. 334.

27. [1899] 1 Ch. 796. END OF DOCUMENT

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