Sylvester v Sylvester

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Hewlett J
• Judgment Date: 08 March 1976
• Neutral Citation: VG 1976 HC 1
• Docket Number: Divorce Suit no. 57 of 1975
• Date: 08 March 1976

High Court

Hewlett, J

Divorce Suit no. 57 of 1975

Sylvester

and

Sylvester

Appearances:

Mc W. Todman for petitioner

The respondent did not appear and was not represented.

Paula Beaubrun, Queen's Proctor

Practice and procedure - Matrimonial proceedings — Divorce.

Petitioner married to respondent in Grenada in 1960. Petitioner served with document purporting to be a “pronouncement of divorce”. Document dated May 7, 1975 and issued in the Dominican Republic. Petitioner sought declaration that the marriage was still a valid and subsisting one.

Held: The test of divorce matters in the British Virgin Islands is domicil.

Hewlett J

1 The petitioner in this suit has prayed for a declaration that her marriage to the respondent at St. George's Roman Catholic Cathedral in Grenada on the 27 ^th November, 1960 is a valid and subsisting one. The petitioner seeks this declaration because she was served with a document dated the 7 ^th May, 1975 which purports to be an English translation from Spanish of a “Pronouncement of Divorce” issued by the Civil Status Officer for the Borough of San Christobal in the Dominican Republic certifying that the petitioner's said marriage to the respondent was dissolved by a court in that jurisdiction as of the 23 ^rd December, 1974 on the ground of incompatibility of character

2 The petition in the instant matter was served personally on the respondent on the 29 ^th July, 1975 at Road Town, Tortola and the respondent has also been served with a notice of the hearing date, but he has failed to appear or defend the petition. The matter was therefore heard ex parte, but at the close of the hearing, after the adjournment, the court caused the Queen's Proctor to be notified of the proceeding because of its importance, and then heard argument from her which supported the application.

3 The first question for determination is whether or not this court has jurisdiction to hear a petition of this nature which seeks a declaration and nothing more.

4 Section 7 of the West Indies Associated States (Virgin Islands) Ordinance, 1968. provides:-

“The High Court shall have and exercise within the Territory all such jurisdiction (save and except the jurisdiction in Admiralty) and the same powers and authorities incidental to such jurisdiction as on the 1 ^st day of January, 1940 were vested in the High Court of Justice in England.”

5 And section 11 of the said Ordinance provides:-

“The jurisdiction vested in the High Court in Civil proceedings and in Probate, Divorce and Matrimonial Causes, shall be exercised in accordance with the provisions of this Ordinance and any other laws in operation in the Territory and rules of court…….”

6 Now, it is provided in section 22 of this said Ordinance that:-

“No action or proceeding shall be open to objections on the ground that a merely declaratory judgment decree or order is sought thereby.”

7 And the rules of court are even more explicit, as O. 15 r. 16 will show:-

“No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether or not any consequential relief is or could be claimed”

8 By Rule 81 of the Matrimonial Causes Rules, 1937 these rules of court have been made applicable to matrimonial matters. Rule of 81 reads:-

“Subject to the provisions of these rules and of any statute the Rules of the Supreme: Court shall, notwithstanding the provisions of Order 68 thereof, (now 0. 1r.2) apply with the necessary modifications to the practice and procedure in any matrimonial cause or matter to which these Rules relate.”

9 This position is not peculiar to our jurisdiction. Similar provisions obtain in England and the law and practice there is that the courts have jurisdiction to make declaratory orders in matrimonial matters, as the cases adverted to by learned counsel for the petitioner namely, Harshefi v Harshefi, [1953] 1 All E.R. 783 and Woyno v. Woyno [1960] 2 All E.R. 879, so clearly indicate.

10 I accordingly hold that this court has jurisdiction to make the declaratory order sought.

11 I turn now to the second question as to the basis of jurisdiction in our courts in divorce proceedings. And this question together with that of the extra-territoriality of a foreign decree should, I thinks be of considerable importance to the people of this territory and of the Associated States in general.

12 In this territory, as in England up to 1950, it is not expressly enacted that the jurisdiction of the court to dissolve a marriage shall be based exclusively on the domicile of the parties, but the English courts from the mid-19th century, in a long line of cases, have so held, and any statutory exception that may now exist was enacted subsequent to 1940. I will for convenience advert to three cases only and the relevance of their choice will appear when the facts in the instant matter are stated.

13 I refer firstly to Shaw et al, v. Gould et a1. [1861/73] All E.R. Rep. 874. In this case, the husband acquired a domicile in Scotland by 40 days residence there according to Scottish law, for the purposes of the case, and it was held that the domicile thus obtained was not bona fide and that...