3.
Notwithstanding, however, the above
mentioned decision, the basic rule still
remains that the English courts continue to
recognise decrees of divorce pronounced by
the courts of a foreign country (including
for this purpose those of Scotland, Northern
Ireland and of Hong Kong) if, and only if,
these are granted by the court of the
husband's domicile. This basic rule is
subject to (1) any statutory exception made
by a United Kingdom Act applying to England;
and (2) any other exceptions which may be
recognised by English judicial decisions.
In Indyka v. Indyka the House of Lords
decided that recognition may be extended to
divorce decrees of foreign courts granted:
(a) on the basis of nationality
of both spouses; and
(b) perhaps when granted on the basis
of nationality separately acquired
by a wife living apart from her
husband where the wife had a real
and substantial connexion with the
country pronouncing the decree.
An analysis of the ratio decidendi of the
Indyka case was given by Mr. Justice Ormrod
in Angelo v. Angelo (1967), 3 A.E.R., page 314.
4. I see no legal objection to the Governor's
proposal mentioned above. It is for the
appropriate courts to work out in due course
whether the basis of recognition approved
in the Indyka case should be extended to the
NOTHING TO BE WRITTEN IN THIS MARGIN
(8635) Dd.033274 300m 10/66 G.W.B.Ltd. Gp.863
NOTHING TO BE WRITTEN IN THIS MARGIN
Registry No.
Top Secret. Secret.
Confidential.
Restricted.
Unclassified.
Staff in Confidence.
DRAFT
To:-
Type 1 +
From
Telephone No. & Ext.
Department
2.
category of marriages in the
circumstances referred to in the first
paragraph of this minute.
5. The second modification proposed
at (1) to the White Paper proposals
appears to relate to the manner in
which dissolution of a marriage by
mutual consent may be effected.
I have
no comments on the observations con-
tained in paragraphs 15 and 16.
6. Perhaps I ought to mention that in
connexion with the Indyka group of
cases the circumstances that the ground
for divorce is not one recognised in
England does not matter so long as the
ground in question does not offend
against natural justice. (Manning v. Manning (1958) I A.E.R. page 291)."
It is confirmed that you may proceed as
The long delay since your proposals
proposed.
were put to us (and indeed since the above
legal advice was tendered) is greatly
regretted.
Plse issue.
W.5. Carbor
164/64
Page
Reference..
with (8)
Hr. Stewart,
I attach
draft saving despatch to Hong Kong,
passing on the content of Mr. Cruchley's minute of 26" November 1968. Please see also Mr. Smith's
minute 52 10th December, abone.
have also mentioned the letter from
Basto, Chairman of the MK Bar Association, the Saving, seeking Hong Kong's niews
in
Page
Daco 10.
.R. if way
19.12.68.
ge 10
ge 10