MICHAEL SERGHI ν. EILEEN MAY SERGHI THEN EILEEN MAY PALMER (V24) 1 CLR 20

(2)-Husband domiciled in Cyprus-Decree of divorce granted on the wife's petition by the Court of the State of Oregon U.S.A.-Wife's residence at the date of the institution of her petition in that State not exceeding twenty months-One year's residence sufficient under the law of that State-The decree not valid in Cyprus-The Matrimonial Causes Act. 1950, section 18. Practice-Amendment of petition for dissolution-By adding a prayer for a declaration that a foreign decree of divorce between the parties is valid. The petitioner husband sought the dissolution of his marriage with the respondent on the ground of cruelty. His domicil was at all material times in Cyprus. At the hearing of the petition, Counsel for the petitioner produced a decree of the Circuit Court of the State of Oregon, U.S.A., granting to the respondent wife, as plaintiff, an absolute decree of divorce from her husband, the petitioner in the present proceedings. Whereupon an amendment was allowed by adding a new prayer for a declaration that the aforementioned American decree is valid in Cyprus. The wife had only twenty months' residence in the State of Oregon, one year's residence in that State being sufficient under the Law of Oregon to give the Circuit Court of Oregon jurisdiction to entertain the aforesaid divorce proceedings. Held:

(1)The Law applicable by this Court in the present case is the English Law. This is what the Courts of Justice J.Iaw, 1953, section 33

(2)provides (Note: Sub-section

(2)of Sect. 33 is set out in the judgment.)

(2)It has long been a principle of the English Law that the basis of the jurisdiction in cases of dissolution of marriage is the domicil of the parties at the time of the institution of the proceedings; it is equally a principle of English Law that by marriage the wife acquires the domicil of the husband and that she retains it during coverture and she cannot acquire any other domicil different from that of the husband. In other words, the sole basis for jurisdiction was the domicil of the husband at the institution of the proceedings. With regard to foreign decrees only those given by the Courts of the domicil of the husband or those recognised by the Law of the domicil could be recognised as valid in England.

(3)The first break-through into the castle of domicil was started in 1937 by section 13 of the Matrimonial Causes Act, 1937, which was followed by the Matrimonial Causes (War Marriages) Act, 1944, and later by section 1

(1)of the Law Reform (Miscellaneous Provisions) Act, 1949, which for the first time introduced three years' residence in England by the wife immediately preceding the start of the proceedings as giving also jurisdiction for divorce proceedings. Finally, section 18 of the Matrimonial Causes Act, 1950, has consolidated all earlier statutes on the subject. According to section 18 the wife and the wife only can institute proceedings for divorce or nullity of marriage if she has been ordinarily resident in England for three years immediately preceding the commencement of the proceedings. As it was natural, the attitude towards foreign decrees also had to change and did change and there is a line of cases starting with the leading case of Travers v. Holley and Holley decided by the Court of Appeal and reported in the

(1953)2 All E.R. 794, down to the case of Robinson-Scott v. Robinson-Scott decided by Karminski ,J. in 1957 and reported in

(1957)3 All E.R. 473, the result of which is that with regard to foreign decrees the English Courts on account of reciprocity and comity will recognise foreign decrees given by foreign Courts, independently of domicil, if the petitioner, like in England, is the wife and if the wife was a resident of the country of the foreign Court immediately preceding the institution of the proceedings. With regard to the length of residence of the wife in the foreign country the decisions are clear now that three years' residence in the territory of the foreign country will be required. On this point Karminski J. in Robinson - Scott v. Robinson-Scott (supra) at p. 478 stated the following: "In my view the correct answer to the question which I have asked myself is this: where in fact there has been three years' residence by a wife in the territory of the foreign court assuming jurisdiction in a suit for dissolution, the English Court should accept that as a ground for exercising jurisdiction because it would itself accept jurisdiction on proof of similar residence in England".

(4)In the present case the record of the proceedings of the foreign Court, the American Court shows that the wife resided in the State of Oregon for only twenty months. The expert evidence before me was that the wife having had residence in that country for one year that would give the Court of Oregon jurisdiction to entertain the proceedings. Even though the decree made by the Court of Oregon might be a perfect decree, as far as that country is concerned, the only thing I can say is that here it cannot be declared a valid decree and the prayer on that point that I should declare that decree valid is refused. Declaration refused. Note: Ultimately the Court granted a decree nisi on the ground of cruelty. Cases referred to: Travers v. Holley and Holley

(1953)2 All E.R. 794- (C.A.) Robinson-Scott v. Robinson-Scott

(1957)3 All E.R. 473. Petition for dissolution of marriage. Petition by the husband for dissolution of his marriage, instituted in the Supreme Court and tried by Zannetides, J. (Matrimonial Petition No.13/57), -on the ground of cruelty of his wife, and, by amendment, petition for a declaration that a decree of divorce issued on April 15, 1957 by the Circuit Court of Oregon, U.S.A. is a valid decree in Cyprus. Tassos Papadopoulos for the Petitioner. The Respondent did not appear. Cur. adv. vult. Only the portion of the judgment referring to the validity of the foreign decree is reported. ZANNETIDES, J.: After dealing with the facts of the case went on: When the hearing started and the petitioner came to the witness box he produced a document which he received in the meantime from Oregon, and which is a decree of divorce by the Circuit Court of the State of Oregon of the U.S.A., granting to the respondent, as plaintiff, an absolute decree of divorce from her husband, the present petitioner, as defendant in those proceedings. Mr. Papadopoulos for the petitioner then applied for an adjournment to consider his position in the light of the new situation created by the decree of divorce of the Court of Oregon and the case was adjourned sine die. Eventually Mr. Papadopoulos applied and obtained leave to amend the petition by adding inter alia a, new prayer to the following effect: "That this Court may declare that the said decree of dissolution issued in petition No. 49175 on the 15th April, 1957, by the Circuit Court of the State of Oregon for the County of Clackamas by the Honourable Ralph M. Holman, Judge, is valid". After the necessary amendments were effected the hearing was resumed on the 8th December, 1958, and evidence was heard both on the allegation of the petitioner of cruelty by his wife and also expert evidence on the Divorce Law of the State of Oregon and on the validity and effect of the decree of divorce of the American Court of the State of Oregon. This decree of the American Court brought into play the effect and validity of a foreign decree of divorce in Cyprus and more particularly what is the effect in Cyprus of a decree of divorce granted by the Court of the State of Oregon. First of all let me say from the start that the Law applicable by this Court in the present case is the English Law. This is what section 33

(2)of the Courts of Justice Law, 1953, provides. This section is as follows: "33

(2). The Supreme Court in exercise of the jurisdiction conferred by paragraph (

1. b)of section 20 shall apply the Law relating to matrimonial causes for the time being administered by the High Court of Justice in England". Paragraph (
2. b)of Section 20 of the same Law confers exclusive jurisdiction to the Supreme Court in matrimonial causes, including power to make orders for alimony etc., subject to the provisions of section 34 which enumerates causes and matters in which the Court will not have exclusive jurisdiction. They concern matrimonial causes between Greeks Orthodox and Turks. It has long been a principle of the English law that the basis of the jurisdiction in cases of dissolution of marriage is the domicil of the parties at the time of the institution of the proceedings; it is equally a principle of English law that by marriage the wife acquires the domicil of the husband and that she retains it during coverture and she cannot acquire any other domicil different from that of the husband. In other words, the sole basis for jurisdiction was the domicil of the husband at the institution of the proceedings. With regard to foreign decrees only those given by the Courts of the domicil of the husband or those recognised by the law of the domicil could be recognised as valid in England. The first break-through into the castle of domicil was started in 1937 by section 13 of the Matrimonial Causes Act, 1937, which was followed by the Matrimonial Causes (War Marriages) Act, 1944, and later by section 1

(1)of the Law Reform (Miscellaneous Provisions) Act, 1949, which for the first time introduced three years' residence in England by the wife immediately preceding the start of the proceedings as giving also jurisdiction for divorce proceedings. Finally, section 18 of the Matrimonial Causes Act, 1950, has consolidated all earlier statutes on the subject. According to section 18 the wife and the wife only can institute proceedings for divorce or nullity of marriage if she has been ordinarily resident in England for three years immediately preceding the commencement of the proceedings. As it was natural, the attitude towards foreign decrees also had to change and did change and there is a line of cases starting with the leading case of Travers v. Holley and Holley decided by the Court of Appeal and reported in the

(1953)2 All E. R.- 794 down to the case of Robinson -Scott v. Robinson Scott decided by Karminski J. in 1957 and reported in

(1957)3 All E.R. 473, the result of which is that with regard to foreign decrees the English Courts on account of reciprocity and comity will recognise foreign decrees given by Foreign Courts, independently of domicil, if the petitioner, like in England, is the wife and if the wife was a resident of the country of the Foreign Court immediately preceding the institution of the proceedings. With regard to the length of residence of the wife in the foreign country the decisions are clear now that three years' residence in the territory of the foreign country will be required. On this point Karminski J. in Robinson-Scott v. Robinson- Scoff (supra) at p. 478 stated the following: "In my view the correct answer to the question which I have asked myself is this: where in fact there has been three years' residence by a wife in the territory of the foreign court assuming jurisdiction in a suit for dissolution, the English court should accept that as a ground for exercising jurisdiction because it would itself accept jurisdiction on proof of similar residence in England". To sum up the position, a foreign decree of divorce or nullity of marriage will be recognised by the English Courts (

1. a)if it is a decree issued by the Courts of the domicil of the husband, (
2. b)if it is a decree recognised by the Law of the domicil of the husband, and (
3. c)if it is a decree issued on a petition by the wife and by the Courts of a country in the territory of which the petitioning wife has been a resident for three years immediately preceding the institution of the proceedings. In the present case the record of the proceedings of the Foreign Court, the American Court, shows that the wife resided in the State of Oregon for only twenty months. The expert evidence before me was that the wife having had residence in that country for one year that would give the Court of Oregon jurisdiction to entertain the proceedings. Even though the decree made by the Court of Oregon might be a perfect decree, as far as that country is concerned, the only thing I can say is that here it cannot be declared a valid decree and the prayer on that point that I should declare that decree valid is refused. Declaration refused. (Decree nisi on the ground of cruelty, granted). cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο