The court was asked whether, and if so when, it should recognise a decree of divorce granted in a foreign jurisdiction.
Held: Diplock LJ said: ‘It is, I apprehend, a well established principle of public policy applied by English Courts that so far as it applies within their part to ensure, the status of a person as married or single should be the same in every country which he visits, that is, that there should not be ‘limping marriages’; and if marriages are to be dissoluble at all, this involves deciding what courts we should recognise as having jurisdiction to dissolve them.’ and
‘It follows, therefore, that to the extent that the inhibition is removed by the extension of the jurisdiction of the English Courts themselves to decree dissolution of marriages, the public policy requires English Courts to recognise the effectiveness of decrees of dissolution of marriages pronounced by Courts in exercising their jurisdiction in circumstances which mutatis mutandis would entitle an English Court to exercise its extended jurisdiction to dissolve a marriage.’ and
‘For let us not pretend that the common law is changeless. If it were, it would have long ago been replaced by statutory codes. It is the function of the Courts to mould the common law and to adapt it to the changing society for which it provides the rules of each man’s duty to his neighbour; and that is what the Courts have been doing since 1953 in this important field of common law. Within the limits that we are at liberty to do so, let us adapt the common law in a way that makes common sense to the common man. I think that in this present case we have the liberty, unfettered by any precedent, to choose between the narrower basis of recognition of foreign decrees of dissolution which Latey J. adopted and the wider basis which I have stated above. The latter seems to me to accord better with the public policy of avoiding ‘limping marriages’ and with what the common man would think was common sense.’
Judges:
Diplock LJ
Citations:
[1966] 3 All ER 583
Cited by:
Appeal From – Indyka v Indyka HL 1969
An English court should recognise a divorce decree granted in a foreign country where there was a real and substantial connection between the petitioner for the divorce and the country exercising the jurisdiction.
Lord Wilberforce said: ‘In my . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 06 May 2022; Ref: scu.406666