Sinclair v Sinclair

• Jurisdiction: Ireland
• Judgment Date: 28 October 1896
• Date: 28 October 1896
• Court: Matrimonial Court (Ireland)

Sinclair

and

Sinclair.

Matrimonial.

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1896.

Petition for divorce — Previous divorce in England of parties domiciled in Ireland — Jurisdiction.

A, a domiciled Irishman, intermarried with B, an Irishwoman, at Bombay, India, on March 4th, 1878. There was one child issue of the marriage. In November, 1883, A presented a petition for a divorce to the High Court in England, on the ground of B's adultery with C. B did not defend the suit, and on July 15th, 1884, a decree nisi was made, and also an order as to the custody of the child. On January 27th, 1885, the decree nisi was made absolute. On April 15th, 1886, an order was made, varying the trusts of the settlement executed on the marriage of A and B. B subsequently went through the ceremony of marriage with C, and lived with him as his wife. The trustees of the settlement afterwards refused to obey the order of April 15th, 1886, on the ground that A and B were domiciled in Ireland at the time, and that therefore the English Court had no jurisdiction to entertain the divorce proceedings.

On April 7th, 1896, A presented a petition for a divorce a mensa et thoro to the High Court in Ireland, on the ground of B's adultery with C, alleging that the English divorce was not binding.

The Court was of opinion that the real object of the suit was to enable the petitioner to obtain a private Act of Parliament for the dissolution of the marriage, and, being of opinion that a decree of divorce a mensa et thoro was not a necessary preliminary to such an Act, dismissed the petition.

Observations on the practice of appearing without protest against the jurisdiction of the Court.

Trial of Cause.

This cause was commenced by a petition filed the 8th April, 1896, by Alfred Law Sinclair, of Hollyhill, Strabane, in the county of Tyrone, a major in the Indian Staff Corps, for a divorce a mensa et thoro, from his wife, Isabella Sinclair, otherwise Tyacke.

The material facts were stated in the petition, which was as follows:—

1. That your petitioner was, at the time of his marriage, hereinafter mentioned, and ever since, has been, and now is, a domiciled Irishman.

2. That, on the 4th day of March, 1878, your petitioner was lawfully married to Isabella Sinclair, then Isabella Edwards, spinster, who was a domiciled Irishwoman, at Byculla Chapel, Bombay, in the Empire of India.

3. That, after his said marriage, your petitioner lived and cohabited with his said wife, at Hydrabad, Scinde, and other places in the Empire of India, and at divers other places, and there is now living issue of the said marriage one child, videlicet, Helen Eila Sinclair, born on the 29th day of November, 1881.

4. That the said Isabella Sinclair, otherwise Tyacke, has frequently since December, 1881, committed adultery with Richard Humphrey Tyacke.

5. That, from the month of March, 1883, down to the presentation of the petition hereinafter mentioned in the High Court of Justice in England, the said Isabella Sinclair, who had deserted your petitioner, lived with the said Richard Humphrey Tyacke, and, during that time, frequently committed adultery with him at Kashmere, India, and elsewhere.

6. On the 9th day of August, 1883, your petitioner presented a petition in England, in the High Court of Justice, Probate Divorce, and Admiralty Division, charging his said wife with having committed adultery with the said Richard Humphrey Tyacke, and, praying that his said marriage might be dissolved, and that he might have the custody of his said child. Your petitioner described himself in the said petition as of Hollyhill, Strabane, in the county of Tyrone.

7. By an order of the President of the said Division of the High Court of Justice, dated the 15th day of July, 1884, it was decreed that the said marriage should be dissolved by reason that since the celebration thereof the said Isabella Sinclair, the respondent in said petition, had been guilty of adultery, unless sufficient cause should be shown to the Court within six months from the making thereof, and the custody of the said child was granted to your petitioner.

8. No cause was shown against the making of the said decree absolute, and on the 27th day of January, 1885, said decree was made absolute.

9. The said Isabella Sinclair, the respondent in the said petition, after the said decree had been made absolute, went through the form of marriage with the said Richard Humphrey Tyacke, and has been ever since living with him as his wife, and is known by the surname of Tyacke.

10. An order of the said Division of the High Court of Justice in England was made on the 19th April, 1885, modifying the trusts of the settlement dated 31st December, 1877, entered into on the said marriage consequent upon the said decree dissolving the said marriage.

11. Subsequently, the trustees of the said settlement, upon being called upon to act on the said last-mentioned order, raised the question, that your petitioner and the said Isabella Sinclair, otherwise Tyacke, had an Irish domicil by origin, and that your petitioner and the said Isabella Sinclair, otherwise Tyacke, had never lost such domicil of origin, and that the said decree and order of the 19th April, 1886, were made without jurisdiction, and were null and void, and that the marriage of your petitioner had never been dissolved.

12. Your petitioner was, at the time of the said marriage, and of making of the said decree and order, and still is, an officer in the Indian Staff Corps.

13. Your petitioner is advised that the said decree and orders were made without jurisdiction, and that the said Isabella Sinclair, otherwise Tyacke, is still the lawful wife of your petitioner, and that it is necessary for the purpose of procuring a divorce a mensa et thoro from his said wife, that a petition should be presented in this Honourable Court.

On May 2nd, 1896, the petitioner, who was about to leave Ireland for foreign service, was examined in Court, and deposed to the facts stated in the petition. He stated that proceedings were taken in England by the advice of his lawyers, and that he had no intention to avoid the jurisdiction of the Irish Court, and knew nothing of the question of domicil. The trial took place before the Court itself, on June 2nd, 1896, when evidence was given that Major Tyacke and the respondent were living together in England as husband and wife. The respondent was served with notice of all proceedings in the cause, but did not...