38, Sir Poter Grain read his own judgment and that of Mr. Justice Wood, reversing the judgment of the lower court and granting a decree nisi in the case of Cecile Laval Toeg v. David Lionel Toes.
'TJudgo King, who, refused a divorce in the lower court, gave as his appeal judgement "I desire only to say that on the judgments of my Jearned brothers it follows that this appeal will be allowed and a decree isi will be granted." Mr. Reader Harris appeared for peti tioner and Mr. A. M, Praston for respondent, Sir Peter Grain's judgment was This is an appeal from a decision of the Assistant Judge given in July this year in a divorce suit drought by Cecile Laval Toor against her husband David Lionel Toeg. All. the facts were disclosed regards the conduct of both parties to the suit, Tt was admitted that the petitioner had had sexual intercourse outside her marriage, which under the special circumstances of the ease the petitioner denied to have been adulterous and the petitioner asked the Court on any view taken upon this point to make use of its The learned Judge in the Court below found that the respondent had committed adultery and also that the petitioner had committed adultery.
It then became necessary for the Judge to determine whether it was case in which despite the adultery of the petitioner ho was justified in using: that discretion which he is entitled to use, and grant the prayer of the petitioner fora decree of divorce against the respondent her husband.
The learned Judge In the Court tow decided "that it was not a lose in which he was justified in ising his discretion and therefore refused to make a decree of divorce.
'The grounds of appeal are that the learned Judge did not use his Judicial discretion, that the petitioner had not committed adultery and that the petitioner should not have been deprived of the custody' or access to the child of the mar-
The facts in this case are somewhat peculiar, The respondent at the time of his marriage was a British protected person and the petitioner was at} the time of her marriage an Ameri-cay national and by American law retains that nationality on her marti-ago and also. by British Jaw, as protected British subject does not confer his British protection on his wife; but she docs acquire her husband's domicile The marriage took place before the Registrar of Marriage in the British Colony of Hongkong under the provisions of the Hongkong Ordinance No, 7 of 1876 on Jane 1, 1928. And there is one child of the There was a somewhat simi case before the Divorce Courts in the Royal Court of Justice in London.
Green v. Green and Sedgwick R, 1893, P. 89. The wife, Pet tioner, who was an American citizen obtained a divorce in the State Court of Pennsylvania, It was held by Mr. Justice Gorrell Barnes that although an American by domicile of origin on marriage she acquired her husband's domicile and that the British Court could not recognize the American divorce as putting an end to a marriage which was binding in Great Britain. And it was held that she had committed adultery with the man with whom she had gone through the ceremony of marriage in Amerien after the! American decree.
'The case now before' us is a very' complicated one, The petitioner as far as the! Courts of her own nation is concerned is a free woman as regards her marriage to. the respondent, While the respondent is still bound in wedlock to the petitioner, respon. dent cannot present a " petition inst his wife in the American urfs as he will be met with the answer that a decree of divorce has already been made, He cannot proceed against the petitioner in the; British Courts as she is not within' the jurisdiction of these Courts. It appears that both parties desire to marry again. The petitioner desires to marry the man she ce-habited with in Harbin and the respondent also desires to marry again and Toad a moral life, but cannot do so as long as he is legally bound to the petitioner. These facts were not so clear on the evidence on the hearing in the Court below but has deen amplified on the hearing before this Court.
In the case of Apted v. Apted L. R, 1990, p. 240, Lord Merivale j the President of the Probate and Divorce Division of King's Bench gave a review of all the cases o! the exercise of judicial discretion in divorce matters. And although he down no rule of law neverthe-he enumerated several principles which he considered should] be a guide in the use of such diseretion, He states "that every interest involved is a proper matter for} consideration Tu that case the petitioner had, not made a full disclosure of his! own adultery but had concealed rear deal of it and had given false evidence regarding his life w! married to the respondent. Also the ce-respondent was a married man and there was no opportunity for the respondent and co-respondent to marry each other if a decree of divorce was granted.
On those facts Lord Merivale fused to uso his discretion and dismissed the Petition.
In Habra v. Habra (1914) p. 100. Mr, Justice Bargrauso Dean states every case must depend on its own facts and surroundings and the Court is loath to exercise its dis cases where it is interest of morality' and justice that it should be exer-marriage, On December 28, 1927 the petitioner was resident in the State of Nevada and being an American citizen by American law (although hor domicile was that of her husband, namely, Shanghai) petitioned in the Judicial District Court of that State for a-divorce from her In Grayson v. Grayson (1927) 43 'TAL.R. 225, Stress is laid on the question whether the parties are likely to marry again if at liberty to do so and discretion was exercised in favour of the wife, petitioner, who instead' of taking the legal remedy in the first instance had eloped with another man.
The husband had notice, of the proceedings but did not appear or contest the petition and that Court! duly granted a decree of divorce on the wife's petition, It is disclosed by the petitioner] that she had sexual relations with) one other than her husband in Harbin after the American divorce and it appears that che also cohabited with her husband in Paris for two months in 1928 shortly after the American divorce.
The petitioner maintains that} she was legally divorced by the} American Court and that therefore she has not committed "adultery.
But whatever may be her status in America; her husband is not freed from the marriage at Hongkong. Nor is she as far as the British!
Courts are concerned.
Text read from the printed page and cleaned; old type leaves the occasional error.