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Colonial Cases

Last Sittings

HM

CONSULAR COURT

OF EGYPT

[ALEXANDRIA]

LAST SITTING OF THE CONSULAR COURT,

and

Cases pending to be handed over to the Egyptian Courts,

Under

Article 3(2) of the Egypt Order in Council, 1949

 

TNA REFERENCE:

FO369: 4106

 

 

1949

 

 

 

 

K

CONSULAR DEPARTMENT

EGYPT

 

 

K10122

Registry Number

K10122/1603/216

 

FROM

Judge Haines, H.B.M. Consular Court for Egypt, Alexandria.

File No. 6.

 

Dated 14 Oct 49

 

Received in Registry

21 Oct 49

 

 

 

 

 

 

Last sitting on the Consular Court and cases pending to be handed over to the Egyptian Courts under Article 3 (2) of the Egypt Order in Council, 1948.

 

                There are only nine pending actions and less than a dozen pending applications for probate or administration to be handed over.  Will forward a detailed report on the working of the Court as soon as all the necessary information can be collected.

 

(Minutes)

 

See K10123/1603/216

 

XXX 25/10

 

NOTE: Internal or Registry Notations have been omitted throughout.

 

 

 

(Seal)

H.B.M. CONSULAR COURT FOR EGYPT

                                                                                                 ALEXANDRIA 

 

                                                                                                        14th October, 1949

File No. 6     

K 10122

Sir,

         I have the honour to inform you that the last sitting of this Court was held today at Alexandria.  As far as I can tell at this stage there are only nine pending actions and less than a dozen pending applications for probate or administration to be handed over to the Egyptian Courts under Article 3 (2) of the Egypt Order in Council, 1949.  I will forward a detailed report on the working of the Court as soon as all the necessary information can be collected.

       I will transmit to you as soon as possible a list of causes in which no application for a decree absolute has been determined at this date and in which the proceedings shall be deemed to have been concluded by a grant of a decree absolute on the 15th October under Article 3 (1) of the Egypt Order in Council, 1949.  This list is required to be published under Article 5 (2) of the said Order in Council.

                                                                                  I have the honour to be,

                                                                                  With the highest respect,

                                                                                                 Sir,

                                                                        Your most obedient humble servant.

                                                                                          XXX (Haines)

                                                                                               JUDGE.

 

His Majesty's Principal Secretary

Of State for Foreign Affairs,

Foreign Office,

LONDON S.W. 1.

 

 

1949

 

 

 

 

K

CONSULAR DEPARTMENT

EGYPT

 

 

K10123

Registry Number

K10122/1603/216

FROM

Judge Haines, c/o H.M. Consulate General, Alexandria.

Gen. 2-14

Dated 14 Oct 49

Received in Registry

21 Oct 49

 

Consular Court in Egypt.

Refers to his letter of 14 Oct 49 (K10122/1603/216).

 

Transmits a list of the causes in which no application for a decree absolute had been determined on the 14th October, and which were deemed to have been concluded by a grant of a decree absolute on the 15th October.

Last Paper

(K10122)

(Minutes)

 

For information.  Wd any outside authority be interested [...], such as the Registrar-General?

A.F.R. HARVEY, 25/10

 

Mr. Alden. 8/11 Copy retained

 

Miss Gutteridge, Africa Dept. (Will you kindly say if Divorce Regy will be interested please. X.X.X. 12/11

 

Section 5 (2) of the Egypt Order in Council 1949 provides that the Secretary of State shall cause to be published a list of these causes.  I do not know (but p.p.s. may know) in what manner it was intended there should be publication, but clearly some action must be taken to comply with this requirement.  I doubt if it would be sufficient merely to send a copy of the list to the Registrar, Principal Probate Registry, Somerset House, who might, however, be furnished with such a copy.

   I am returning this paper through Mr. McDougall in case he has any observations he would like to make on this matter.

J.A.C. Gutteridge. 12/11

(1) Mr. McDougall

(2) Mr. Harvey, Consular Dept.

 

I assume publication will be in the same manner as under a previous similar provision which was I think made in the O in C terminating our Court in China.

McDougall  12/11

 

In the case of the termination of our Court in China, publication of the causes in which no application for a decree absolute had been determined was effected through the London Gazette of 14th June 1946.  Subsequently a circular was sent to Consuls as under letter T9393/16/3756 of 14th July 1946.

   I accordingly attach a draft notice for insertion in the London Gazette, after which action is taken we can send a circular to Consuls.

A.F.R. Harvey   18/11

Treaty Dept (Miss Fish)

Miss Gutteridge

Mr. Alden, Consular Dept.

 

There is no need to send a circular to all consuls.  It will be suffice to send copies of the Gazette notice to Consuls in Egypt.

   As regards the text of the notice would it not facilitate reference if the two lists were to be combined in case order?

Fish 18.11.49

[Side note: The circular in the China precedent was given a world-wide distribution in error.  It should have gone to Consuls in China.]

 

I agree with Miss Fish that the two lists should be combined and set down in case order as in the notice concerning China.

Alden  18.11.49

 

  1. The only reason that there are two lists in the present case is that some of the decrees nisi were granted by the Court sitting at Cairo, and some by the Court sitting at Alexandria.  I am not certain whether H.B.M. Supreme Court for China always sat in one place; if so, there would have been no occasion to have had more than one list in that instance.  I assume however, that whether H.B.M. Consular Court in Egypt heard divorce proceedings in Cairo or Alexandria, the decrees granted were registered in the same Registry, and that there is therefore no likelihood of any confusion between, say, Case No. 63 (a decree nisi granted at Alexandria) and another case, bearing the same number, which was heard at Cairo.  If I am correct in this assumption, there would seem to be no reason why the two lists should not be combined.
  2. Our Consular Court in Egypt is described in Article 5 of the Egypt Order in Council 1949 as "His Britannic Majesty's Consular Court for Egypt."  I do not therefore see why the same description should not be used in the notice for insertion in the London Gazette.
  3. I have ventured to alter the heading of the draft notice which is to be inserted in the London Gazette.  It seems to be rather more suitable than "Divorces of British Subjects in Egypt."

J.A.C. Gutteridge  19/11

(1) Mr. McDougall (to see para. 1)

Mr. Harvey, Consular Dept.

 

I think one combined list will do, in view of all the details given.

 2.  I notice however that some decrees nisi were granted only a few days before the Court closed & some only a few weeks.  It was certainly not in my mind when considering the draft O in C that the O in C could operate to telescope the normal procedure.  I doubt if it was intended that where the normal time before a decree nisi could be made absolute had not elapsed by 15th Oct. 1949 the O in C would make them absolute.  What happened in China?   Perhaps Miss Gutteridge would care to look at the Egypt O in C 1937 & the Rules of Court on this question & express a view.

McDougall 21/11/49

Mr. Harvey - Consular Dept. [Initialled 22/11]

Miss Gutteridge

Mr. McDougall

 

I understand from Mr. McDougall's minute that the intention of Article 5 (1) of the Egypt Order in Council 1949 was that where the necessary time had passed since the grant of the decree nisi but no application for a decree absolute had been determined, the proceedings should be deemed to be concluded by the grant of a decree absolute on the date on which the Order took effect.  It was not intended to mean that a decree absolute could be deemed to have been granted within a shorter period than the period prescribed.

   Since under Article 4 of the Egypt Order in Council 1949, the jurisdiction of the Court is to be exercised, so far as circumstances permit, on the principles of, and in conformity with English law, it would seem to be contrary to the whole spirit of the provision that, on the "winding-up" of the Court, a decree nisi granted by the Court should be able to be superseded by a decree absolute in a lesser time than English law requires.  On the other hand if, in those cases in which a decree nisi was granted within a few days before the Court closed, no decree absolute is deemed to have been granted on the date on which the Order took effect, the result will be that certain unfortunate people are "left in the air," since it is not at all clear to what Court they can apply for a grant of a decree absolute.

J.A.C. Gutteridge 22/11

 

See further minute.

My minute of 21st November.  From the China list of decrees made absolute on the closing of the Supreme Court for China on 20th May, 1943, it appears that 18 months before that date, i.e. the normal delay of 3 or 6 months before a decree could be made absolute had occurred.  In all but 3 of the 20 Egyptian cases that time had not elapsed on 15th October last.  In these 17 cases the petitioners are clearly active & on principle their cases should be remitted to the Egn Courts in their then state (Article 9 of the Montreux Convention).

2.  We have two courses of action open to us:

(a) The O in C is absolute in terms & we can let it stand & operate on these 17 cases, or

(b) We can amend the O in C & remit these cases to the Egn Courts.

3. Unless it is repugnant to public policy, or liable to give rise to adverse public comment in Egypt or here.  I recommend (a).  But it might be worth having the views of the Embassy at Cairo & especially the new Legal Counsellor.  What do you think?

McDougall 23/11/49

Legal Adviser

 

Article 5 (1) of the Order in Council must be taken to mean exactly what it says.  Both it and the corresponding provision in the China Order were drafted with the full knowledge and intention that they should apply to cases where a decree nisi had been given perhaps a few days before the court closed.  Now, this is really the case in the China Order too, although it may not appear so.  Our court in China have have been closed de jure in 1943, but de facto it had been closed well over a year before that.  The Japanese came in at the very beginning of 1942 and the court completely ceased to function from the time the Japanese came in, so there is really no difference between the two cases.

X.X.X. 23rd November 1949.

 

Action on the draft Notice can now be taken.  McDougall 23/11/49

Mr. Harvey

 

   Following our telephone conversation, you very kindly undertook the insertion of this notice in the London Gazette for us.  I should be very grateful if you would also return these papers with a copy of the relevant extract from the L. G. in due course.

A.F.R. HARVEY, 28/11

Library (Mr. C. H. Fore)

 

Published in the Gazette of Dec 6.  Copies attached.  C.H. Fore 14/12

 

   In the last few weeks, Treaty Dept enquired whether this notice had been published, in connection with an enquiry from two of the parties concerned in Egypt.  Treaty Dept may also retain a copy of the L. G. notice as requested

 

Draft Superintending Consuls in Egypt.  A.F.R. HARVEY 15/12

Treaty Dept (Nationality Section).  I have kept a copy of the extract from the L. G.

Fish 15/12

Miss Gutteridge - to extract the documents which were kindly loaned.

They had been extracted.  J.A.C. Gutteridge 15/12       AFRH 16/12

 

 

c/o H.B.M. CONSULATE-GENERAL,

                                                                                                             ALEXANDRIA.

 

                                                                                                        18th October, 1949.

 

Gen. 2-14

K10123

Sir,

     With reference to the last paragraph of my letter (File No. 6) of the 14th October I have the honour to transmit to you, herewith, a list of the causes in which no application for a decree absolute had been determined on the 14th October and which were deemed to have been concluded by a grant of a decree absolute on the 15th October/

                                                                                                      I have the honour to be,

                                                                                                      With the highest respect,

                                                                                                                    Sir,

                                                                                             Your most obedient humble servant.

 

                                                                                                               (O. H. HAINES)

 

 

His Majesty's Principal Secretary

Of State for Foreign Affairs,

Foreign Office,

LONDON S.W.1.

 

Note: List not transcribed; it is as printed in the London Gazette, 6 December 1949; the draft for publication is the same.

http://www.london-gazette.co.uk/issues/38777/pages/5781; accessed 3 November 2012.

 

                                                                      FOREIGN OFFICE, S.W.1.

                                                                                                   19th December, 1949.

(K 10123/1603/216)

Dear Consulate-General,

                        Article 5 of the Egypt Order in Council, 1949, which came into operation on the 15th October last, provided that:

 "(1) Where at the date of taking effect of this Order a decree nisi had been granted in any matrimonial suit by His Britannic Majesty's Consular Court for Egypt but no application for a decree absolute had been determined, the proceedings shall be deemed to have been concluded by the grant of a decree absolute on the date of taking effect of this Order.

(2) The Secretary of State shall cause to be published a list of the causes to which the previous paragraph of this Article applies."

   A list of the causes to which Article 5 of the Order applies has been published in the London Gazette of the 6th December, 1949, and a copy of the notice is enclosed for your information.

    A similar letter has been addressed to Consular Section, Cairo, Consulate, Port Said, and the Consulate, Suez.

                                                                            Yours ever,

 

                                                                  

                                                             CONSULAR DEPARTMENT.

British Consulate-General,

     Alexandria.

 

Note:  The identical copies referred to have not been transcribed.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School