Kuligowski v aoe

Kuligowski v aoe - [1927] HCA 23 - HCA 1927 case summary — Zoe

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and it has been found here, and not disputed, that in 1919 - fro 1914 the time of the marriage to 1921 or 1922 (the time when th husband went to New South Wales) - the domicil of the husband, and consequently of the wife - the domicil of choice - was in Wes Australia. It is established also that a decree for judicial separz may be pronounced by a Court in a country where the parties not domiciled, but merely resident (Le Mesurier v. Le Mes (3); Armytage v. Armytage (4)); and it is not contended that decree for judicial separation obtained where the parties are m resident, not domiciled, is binding in other countries, although i binding in the country where it was obtained (see Halsbury's : of England, vol. vi., p. 264). But it is urged, on behalf of the wife that if the decree for judicial separation has been pronounced by a Court of the parties' domicil for the time being, the position i different - -that it is to be treated as binding everywhere. It is on this ground that the Full Supreme Court has reversed the d made by the Judge of first instance for the restitution of conjuge rights ; and this is the only point of difference between the Judge o first instance and the Full Court. t There is certainly no direct authority for such a distinction in favour of an order made in the Court of the domicil of the partie and I am unable to find any ground in the nature of the case accepting it. A decree for dissolution of marriage is unive treated as binding everywhere if it be made in the domicil marriage creates a status, and that status depends on the law of the domicil. The tie of marriage cannot be cut except by the law of the domicil. But judicial separation does not touch status - leaves the ligamen uncut; it leaves the parties married. T jurisdiction is for provisional separation, for the protection of the injured party from cruelty, neglect of maintenance, or other misconduct, during the marriage ; for police purposes (see citation from jurists and text-writers collected in Armytage v. Armytage (8): and see Von Bar on Private International Law, translated by (illesp

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the Court's ' power to grant any relief which alters in any way relation between the parties which arises by law from their mar It applies, therefore,' he said, ' as it seems to me, to suits for judicis separation and to suits for the restitution of conjugal rights * (2). But the Judicial Committee, per Lord Watson, in Le Mes v. Le Mesurier (3), adopted the other view. They said ' There are unquestionably other remedies for matrimonial misconduct, short of dissolution, which, according to the rules of the jus gentium, may | administered by the Courts of the country in which spouses, domici elsewhere, are for the time being resident. If for instance a husb deserts his wife, although their residence be of a temporary chara these Courts may compel him to aliment her: and, in cases where' residence is of a more permanent character, and the husband treat his wife with such a degree of cruelty as to render her continuane in his society intolerable, the weight of opinion among internat jurists and the general practice is to the effect that the Courts the residence are warranted in giving the remedy of j separation, without reference to the domicile of the parties.' This wa acted on in Armytage v. Armytage (4), and again in Anghinelli y Anghinelli (5) . . . and must now be considered to be the law of th English Court.'' In the case of Anghinelli v. Anghinelli referred to, the decision of Armytage v. Armytage was attacked before the Court of Appeal, but upheld; and the quaint explanation was a that was given by James L.J. (Niboyet v. Niboyet (6) ) stated) of the fact that the Ecclesiastical Courts never conc themselves with domicil in dealing with divorce a mensa et tho All the residents of a parish were under the care of the parish , and therefore came under the jurisdiction of the Church; but Church had nothing to do with the secular domicil. In Anghinell Case the question as to judicial separation affecting status not necessary for the decision, but the Lords Justices were eviden of opinion that it did not affect status. Swinfen Hady MR. "A doubt was expressed on that point by Gorell Barnes J. i (1) (1878) 4 P.D. 1. (4) (1898) P. 178,

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Armytage v. Armytage (1)." Now, it is on this very passage, at p- 196, of Armytage v. Armytage, that Gordon J. in the Full Supreme Court relies for treating the order made in the domicil for release from cohabitation (or judicial separation) as having an operation in other States or countries. The passage cannot be fully understood unless what Gorell Barnes J. said on the previous page (2) be considered : - " It may be objected that a decree of judicial separation affects the status of the parties, and that a change of status ought on principle only to be effected by the Courts of the domicil. But the relief is to be given on principles . . . on which the Kcclesiastical Courts gave relief. According to those principles . . . cruelty and adultery were grounds for a sentence of divorce a mensa et thoro which did not dissolve the marriage, but merely suspended either for a time or without limitation of time some of the obligations of the parties. The sentence commonly separated the parties until they should be reconciled to each other. The relation of marriage still subsisted, and the wife remained a feme covert . . . The effect of the sentence was to leave the legal status of the parties unchanged .. . Tt may be further objected that, as domicil is considered a test of jurisdiction in cases of dissolution of marriage, in order that the decree may be recognized in countries other than that of the domicil, for the same reason a similar test should be applied in cases of judicial separation. But the reasons which apply in the one case are not applicable to the other; and even if the principle should be established that the Courts of the country of the domicil of the parties are the only Courts which can pronounce a decree of judicial separation which ought to be recognized in other countries, in my opinion, no valid reason can be urged against the Courts of a country, in which a husband and wife are actually living, pronouncing a decree which will protect the one against the other so long as they remain within the juris- diction." That is to say, the learned Judge, having expressed his own opinion that the decree for judicial separation " leaves the legal status of the parties unchanged," holds that whether the decree in the country of domicil has international efficacy or not, superior to that of a decree in a country of mere residence, a decree may be made in the latter country for protection while the spouses remain within its

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that there was desertion in August 1919, the Court was satisfied t] there was no just cause in November 1925 or in 1926 for the wife refusing to return to her husband and that the efforts made by the husband to induce her to return were genuine. It was admitted that a decree, judgment or order of a foreign Court, which was final and conclusive and could not be altered or varied by the parties or by the Court which made it (such as a decree for divorce, which altered the status of the parties), would be binding on the New South Wales Court, but in this case it is admitted that the order releasing the spouses from the duty to cohabit could at any time be ended by the parties, or altered or varied or discharged by the Court which made it. : I agree with the reasons given in the judgment of Ferguson J. in the Full Court, in which he held that the appeal to the State Court should be dismissed. I do not propose to repeat those reasons, I, however, think it right to refer to three cases relied upon at the hearing of the appeal before this Court. The case of Nouwvion v. Freeman (1), quoted by counsel for the appellant, dealt with the question of what "foreign" judgments ought to be accepted as " final'' judgments, and therefore binding' on all Courts. In the case mentioned Lord Watson said (2) : - *But no decision has been cited to the effect that an English Court is bound to give effect to a foreign decree which is liable to be abrogated or varied by the same Court which issued it. All the authorities cited appear to me, when fairly read, to assume that the decree which was given effect to had been pronounced causa cognita, and that it was unnecessary to inquire into the merits of the controversy between the litigants, either because these had already been investigated and decided by the foreign tribunal, or because the defendant had due opportunity of submitting for decision all the pleas which he desired to state in defence. In order to its receiving effect here, a foreign decree need not be final in the sense that it cannot be made the subject of appeal to a higher Court ; but it must be final and unalter- able in the Court which pronounced it ; and if appealable the English Court will only enforce it, subject to conditions which will save the interests of those who have the right of appeal. The case of Patrick (1) (1889) 15 App. Cas. 1. (2) (1889) 15 App. Cas., at p. 13.

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Judgment (170 paragraphs)

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