Stransky v Stransky

[1954] 2 All ER 536

---

(Judgment by: Karminski J)

Between: Stransky
And: Stransky

Court:

Judge:
Karminski J

Subject References:
FAMILY
Family Proceedings
Divorce
Residence by wife
'Ordinarily resident'

Legislative References:
Matrimonial Causes Act, 1950 (c 25) - s 18(1)(b)

Case References:
Winans v A-G - [1904] AC 287; 73 LJKB 613; 90 LT 721; 11 Digest, Replacement, 329, 41
Foulsham v Pickles - [1925] AC 458; 94 LJKB 418; 133 LT 5; sub nom Pickles v Foulsham, 9 Tax Cas 261; 28 Digest 25, 131
Levene v Inland Revenue Comrs - [1928] AC 217; 97 LJKB 377; 139 LT 1; 13 Tax Cas 486; Digest Supp
Inland Revenue Comrs v Lysaght - [1928] AC 234; 97 LJKB 385; 139 LT 6; sub nom Lysaght v Inland Revenue Comrs, 13 Tax Cas 511; Digest Supp
Hopkins v Hopkins - [1950] 2 All ER 1035; [1951] P 116; 11 Digest, Replacement, 469, 1024
Macrae v Macrae - [1949] 2 All ER 34; [1949] P 397; [1949] LJR 1671; 113 JP 342; 27 Digest, Replacement, 693, 6629
Udny v Udny - (1869) LR 1 Sc & Div 441; 11 Digest, Replacement, 326, 22
Forbes v Forbes - (1854) Kay 341; 23 LJCh 724; 69 ER 145; 11 Digest, Replacement, 327, 24
A-G v Yule & Mercantile Bank of India - (1931) 145 LT 9; 11 Digest, Replacement, 350, 181
D'Etchegoyen v D'Etchegoyen - (1888) 13 PD 132; 57 LJP 104; 11 Digest, Replacement, 349, 180
Manning v Manning - (1871) LR 2 P & D 223; 40 LJP & M 18; 24 LT 196; 11 Digest, Replacement, 475, 1051
Berkley v Thompson - (1884) 10 App Cas 45; 54 LJMC 57; 52 LT 1; 49 JP 276; 3 Digest 393, 312
Lowry v Lowry - [1952] 2 All ER 61; [1952] P 252; 116 JP 343; 3rd Digest Supp
Inland Revenue v Cadwalader - (1904) 7 F (Ct of Sess) 146; 42 Sc LR 117; 12 SLT 449; 5 Tax Cas 101; 28 Digest 24, g

Hearing date: 2 March 1954, 26 May 1954
Judgment date: 4 June 1954

---

Judgment by:
Karminski J

The parties were married in London on 21 July 1944, the wife being a British subject and the husband a Czechoslovak in exile from his country. In 1945 the husband returned to Czechoslovakia and was joined there by the wife, a child of the marriage being born at Prague in August 1946. In March 1948, the husband was compelled to leave Czechoslovakia for political reasons, and on 2 April 1948, the wife and the child joined him in London. In October 1948, the wife acquired and furnished a flat in which she and the husband and child took up residence. In 1950 the husband obtained employment in connection with which he was sent to Munich. In January 1951, the wife visited him at Munich, returning to England in February 1951. In April 1951, the wife and child joined the husband in Munich and lived in furnished accommodation under the control of the United States Army. The wife left her furniture and possessions at her flat in London and took to Munich only a limited quantity of clothing. The flat was tended by a domestic servant employed by the wife, and remained at all times ready for occupation by the wife. In September 1951, the parties came to England, but in October 1951, they returned to Munich where the wife became seriously ill. In June 1952, she returned to England and stayed in the flat, but in July 1952, she rejoined the husband at Munich. In September 1952, the husband, in the course of his employment, returned to London, and he then went to New York. The wife was unable to accompany him owing to ill-health and she stayed in Munich until October 1952, when she returned to the flat in London. In March 1953, the husband came back to London and stayed with the wife at the flat and together the parties visited Paris and Rome. In April 1953, the wife returned to her flat, and the husband again went to New York whence he wrote to the wife a letter in which he confessed he had committed adultery.

There was no further cohabitation between the parties, and on 28 July 1953, the wife filed a petition for divorce on the ground of the husband's adultery, alleging that she and the husband were domiciled in England, that she was resident in London, and that she had been ordinarily resident there for three years immediately preceding the presentation of the petition. Between 28 July 1950, and 28 July 1953, the wife had spent altogether fifteen months in Munich.

Held

(i)

on the facts, in July 1953, the husband had formed no clear intention of settling in England, and, therefore, although admittedly he had not resided in Czechoslovakia since 1948, he had not acquired a domicil of choice in England.

(ii)

to determine where the wife was ordinarily resident between 28 July 1950, and 28 July 1953, one of the tests was to find where her real home was between those dates; during her absences abroad she never let her flat in London, but throughout kept it ready for occupation and returned there when circumstances permitted; her sojourns in Munich were accidental in the sense that they were dictated by the exigencies of the husband's work, and there was no evidence of any intention on her part to make Munich her home for an indefinite period; she had, therefore, been ordinarily resident in England for the requisite period of three years, and the court had jurisdiction to hear the petition, and a decree nisi would be granted.

Petition

Petition by the wife.

By her petition dated 28 July 1953, the wife alleged that the husband had committed adultery with the woman named on a number of occasions between October 1951, and the date of the petition, and prayed for a dissolution of the marriage. In the petition she alleged, inter alia:

"4.

That the [wife] now resides at ... Clabon Mews, London, S.W.1, and has been ordinarily resident at that address for a period of three years immediately preceding the presentation of this petition ...

6.

That the [wife] and the [husband] are domiciled in England."

On 2 March 1954, the petition came undefended before Karminski J who adjourned the case for the assistance of the Queen's Proctor under the Matrimonial Causes Act, 1950, s 10(1).

N Lawson for the wife.

Colin Duncan for the Queen's Proctor.

Cur adv vult

4 June 1954. The following judgment was delivered.

Karminski J read the following judgment. For the purposes of deciding the question of jurisdiction it is necessary to examine the history of the parties and of their married life together. The parties were married in London on 21 July 1944. At the time of the marriage the wife was a British subject, the husband a Czechoslovak at that time in exile from his country which was then under German occupation. At the conclusion of the war in the summer of 1945 the husband returned to Czechoslovakia and was joined in Prague by the wife in July 1945. The parties lived together in Prague until 2 March 1948, and a child of the marriage was born to them in Prague in August, 1946. In March 1948, the husband was again compelled to leave Czechoslovakia for political reasons. On 2 April 1948, the wife and the child of the marriage, who had also left Prague, rejoined the husband in London. There they lived together in temporary accommodation until they moved together into a flat at Clabon Mews, London, SW1, where the wife still resides. At that time the husband was unemployed, but towards the end of 1949 he obtained temporary work as a journalist on the staff of an English weekly newspaper. Towards the end of 1950 the husband entered the employment of the National Committee for Free Europe and was sent to Munich for the purposes of broadcasting from that city. He was joined there by the wife in January 1951. The child of the marriage was left in London, since at that time the husband was working in Munich on a monthly basis. In February 1951, the wife came back to London, leaving the husband in Munich, but rejoined him there with the child in April 1951.

At that time the wife did not expect to remain in Munich for long and took with her only a limited quantity of clothing. Her flat at Clabon Mews which was furnished with her own furniture and possessions, remained open and at all times ready for her occupation. It was kept clean and aired by the domestic "help" usually employed by the wife. In April 1951, the parties were living in furnished billets near Munich controlled by the United States Army. In July 1951, they moved to new billets nearer to the centre of Munich, and these billets were again allotted to them by the United States Army. In September 1951, the wife and the husband returned to England, leaving the child in Munich. In October 1951, they returned to Munich, where soon after their return the wife was taken seriously ill. They remained together in Munich until June 1952, when the wife came back to London alone and lived for a short time in the flat in Clabon Mews. At that time the husband knew that his work in Munich was ending and that he would shortly be transferred elsewhere. In July 1952, the wife returned to Munich and rejoined the husband. In September 1952, the husband left Munich by reason of a change in his employment, but the wife was unable to accompany him to England because of her illness. She was, however, able to return home to Clabon Mews in October, 1952, but by that time the husband had left for New York where he was temporarily employed by the same organisation. The wife did not join the husband in New York, but in March 1953, he returned to London and the parties lived together for a few days at Clabon Mews, and subsequently went together to Paris and Rome. At that time the relationship between the parties was greatly strained, and in April 1953, the husband wrote a letter to the wife in which he made it clear that he was in love with the woman named in this petition and had committed adultery with her. Thereafter, there was no further cohabitation between the parties.

The wife has continued to reside since April 1953, in her flat at Clabon Mews.

The question of domicil in the present case does not, in my view, present any difficulty. It was stated by counsel for the wife that the domicil of origin was Czechoslovak. It is, however, possible that the husband's domicil at birth was Austrian, since one of the documents before me in evidence states that he was born at Brno when that town was in Austria. But the emergence of the State of Czechoslovakia in 1918, doubtless, changed his domicil to one in Czechoslovakia. I observe from the marriage certificate that the husband was born in or about the year 1914, so that in 1918 he was an infant and would acquire the new domicil of his father. I do not, however, consider that the question whether or not his domicil of origin was Czechoslovak is of importance, since the question I have to decide is whether or not he has acquired an English domicil of choice.

There is no doubt that the husband has spent at least several years in this country, though both his periods of sojourn here have been occasioned by circumstances outside his own choice. His parents are settled here, and I do not doubt that he has a considerable affection for this country, and, indeed, some ties with it. From such documents as I have seen he writes well and fluently in English. He has made it clear that he desires his son to acquire British nationality, and he is the possessor of a travel document issued to him in this country as a person who is described in the document as the concern of the International Refugee Organisation. The document itself states that it is issued to persons resident in this country and not elsewhere. On the other hand, it is difficult to find any fact which would enable me to infer that the husband has formed a settled intention to abandon his domicil in Czechoslovakia and acquire a domicil of choice in England. The wife's evidence on the subject of the husband's declared intentions was on this as on other matters perfectly frank. She told me that, at any rate, during the years immediately following his return to England in 1948 he hoped to return to his own country, stating that he would like to stay in the United Kingdom until he could get back to Czechoslovakia. In 1949 the wife re-acquired her British nationality and I think this for a time made the husband regard more favourably the idea of settling permanently in this country. The husband also discussed his future intentions with his medical adviser and personal friend, Dr L, who gave evidence before me. Dr L had no full discussion with the husband as to the latter's intention with regard to settling in any particular country. Dr L was asked whether the husband ever expressed any intentions on this matter, to which Dr L answered:

"Occasionally he discussed the possibilities of war and returning to Czechoslovakia, but he also seemed to hope for permanent work here, I think."

The wife's solicitor also gave evidence of a conversation with the husband in which the latter made it clear that he was pessimistic about his chances of returning to Czechoslovakia. The solicitor formed the impression from the husband, not that all hope was dead, but that it certainly was not a very lively hope.

If the husband's domicil of origin was Czechoslovak it is necessary to prove that he had formed at the time of the petition a fixed and settled purpose to abandon his Czechoslovak domicil and settle in England. This test I take from the speech of Lord Macnaghten in Winans v A-G. If the court cannot come to a conclusion on the evidence whether or not the husband intended a change of domicil, then the domicil of origin must remain. It may, however, be the fact in the present case that, though the husband's domicil of origin was Austrian, that domicil changed with that of his father in or about 1918 to a domicil in Czechoslovakia. Except so far as the question of burden of proof is concerned, I think the distinction may be academic. It is clear that the husband lived and was domiciled in Czechoslovakia until he was forced into exile on two occasions. Before the court could be satisfied on the facts of the present case that he acquired a domicil of choice here it would be necessary to prove, not only the undoubted fact that he has not resided in Czechoslovakia since 1948, but that he has formed a clear intention of settling in England. On the evidence before me I have come to the conclusion that in July 1953, the husband had formed no such clear intention and had not, therefore, acquired a domicil of choice in England.

I now consider whether or not the wife has established that she was ordinarily resident in England for the three years immediately preceding the commencement of these proceedings, that is, prior to 28 July 1953. Section 18(1)(b) of the Matrimonial Causes Act, 1950, confers jurisdiction on the court on a wife's petition for divorce, notwithstanding that the husband is not domiciled in England,

"... if the wife is resident in England and has been ordinarily resident there for a period of three years immediately preceding the commencement of the proceedings ..."

In the present case there can be no doubt that the wife was, in fact, resident in England on 28 July 1953. The question I have to decide is whether or not she was "ordinarily resident" for the three years preceding that date, notwithstanding the admitted fact that for fifteen months out of that period she was living in Munich.

The meaning of the words "ordinarily resident" has been frequently discussed in tax cases, and, although the problem in this case arises on the construction of s 18(1)(b) of the Matrimonial Causes Act, 1950, great help can be derived from consideration of some of the cases under the Income Tax Acts. In Pickles v Foulsham Rowlatt J emphasised (9 Tax Cas 274) that the word "residence" must only be used as signifying an attribute of the person and that confusion might follow by thinking of residence in the sense of a house or place of residence. In Levene v Inland Revenue Comrs Viscount Cave LC said ([1928] AC 222):

"... the word 'reside' is a familiar English word and is defined in the OXFORD ENGLISH DICTIONARY as meaning 'to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place'."

Lord Cave, dealing with the meaning of the words "ordinarily resides", said (ibid, 225):

"The expression 'ordinary residence' is found in the Income Tax Act of 1806 and occurs again and again in the later Income Tax Acts, where it is contrasted with usual or occasional or temporary residence; and I think that it connotes residence in a place with some degree of continuity and apart from accidental or temporary absences. So understood the expression differs little in meaning from the word 'residence' as used in the Acts; and I find it difficult to imagine a case in which a man while not resident here is yet ordinarily resident here."

In Inland Revenue Comrs v Lysaght Viscount Sumner, discussing the meaning of the word "resident", said ([1928] AC 244):

"Grammatically the word 'resident' indicates a quality of the person charged and is not descriptive of his property, real or personal. To ask where he has his residence is often a convenient form of inquiry but only as leading to the question 'then where is he resident himself?'"

Pointing out that many nomads are homeless folk, though they may reside continually within the limits of the United Kingdom, Lord Sumner said (ibid):

"Property obviously is no conclusive test."

Discussing the meaning of the word "ordinarily", Lord Sumner pointed out (ibid, 243) that the statute he was there considering, namely, the Income Tax Act, 1918, did not use any qualifications such as "usually" or "most of the time", or "exclusively", and he added this:

"I think the converse to 'ordinarily' is 'extraordinarily' and that part of the regular order of a man's life, adopted voluntarily and for settled purposes, is not 'extraordinary'."

The industry of counsel was able to discover only one case decided under the wording of s 18(1)(b) of the Matrimonial Causes Act, 1950 (then that of the Law Reform (Miscellaneous Provisions) Act, 1949, s 1(1)(a)), namely, Hopkins v Hopkins. In that case, the wife petitioned for divorce on the ground of cruelty. The parties were married in 1943. In February 1949, she returned to England, and when she presented her petition on 11 October 1949, she was clearly resident in England. It appeared that for five out of the relevant thirty-six months she was, in fact, resident in Canada. It also appeared that during the five months during which she was living with the husband in Canada neither of them had any home of their own in England. On those facts Pilcher J decided that the wife was not "ordinarily resident" in England within the meaning of s 1(1)(a) of the Law Reform (Miscellaneous Provisions) Act, 1949, which has been re-enacted in s 18(1)(b) of the Matrimonial Causes Act, 1950. In the course of his considered judgment Pilcher J referred to the tax cases and to the principles there established, and after a full consideration of those cases found that on the facts of that case the wife, while physically present in Canada, was ordinarily resident there. He further came to the conclusion, again on the facts of that case, that the adverb "ordinarily" added nothing to the adjective "resident". Since the wife in Hopkins v Hopkins had during the critical five months' period given up her English residence entirely and had acquired a residence in Canada, I am in respectful agreement with both his reasoning and his conclusion in that case.

But it is to be observed that s 18(1)(b) of the Matrimonial Causes Act, 1950, uses the term "resident" as a requirement at the time of the institution of the suit, and the term "ordinarily resident" as a requirement during the preceding three years. I do not think that the use of the two terms is either meaningless or accidental. Clearly, mere temporary absences from England, such as for holidays abroad, would not make a gap in the period of ordinary residence. Nor, in my view, would a longer gap of some months, such as one caused by a journey overseas by a wife accompanying her husband on a business trip, necessarily break the period of ordinary residence. In Macrae v Macrae a case under the Summary Jurisdiction (Married Women) Act, 1895, s 4, the Court of Appeal had to consider the question of a change of residence by a husband from England to Scotland. Somervell LJ said ([1949] 2 All ER 36):

"Ordinary residence ... can be changed in a day. A man is ordinarily resident in one place up till a particular day. He then cuts the connection he has with that place-in this case he left his wife; in another case he might have disposed of his house-and makes arrangements to have his home somewhere else. Where there are indications that the place to which he moves is the place which he intends to make his home for, at any rate, an indefinite period, as from that date he is ordinarily resident at that place."

It will be observed that Somervell LJ emphasised the importance of a place and of a house, though I do not think that he was making these factors the only tests in every case. As counsel for the Queen's Proctor suggested in argument, one of the tests in the present case is to find the answer to this question: Where between 28 July 1950, and 28 July 1953, was the wife's real home? The flat at Clabon Mews she acquired in October 1948. Thereafter, she never let it, in spite of the prolonged absences abroad. Indeed, throughout those absences she kept it ready for occupation, and returned there whenever circumstances permitted. She is, indeed, still living there. Her long sojourns in Munich were accidental in the sense that they were dictated by the exigencies of the husband's work. I can find no intention on the wife's part to make Munich her home for an indefinite period. So far from disposing of her flat at Clabon Mews she went to trouble, and, probably, to some expense, to keep it as a permanent home. The wife has satisfied me that she was ordinarily resident in England for a period of three years immediately preceding the commencement of these proceedings. This court has, therefore, jurisdiction to dissolve her marriage. The wife has proved the contents of her petition and I pronounce a decree nisi accordingly.

Decree nisi.

Solicitors: Edwin Coe & Calder Woods (for the wife); Treasury Solicitor.