TNAG-0189-FCO40-225-Chinese-marriages-in-Hong-Kong-1969 — Page 8

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.

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