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Colonial Cases

Casdagli v. Casdagli, 1917

[divorce - domicile]

Casdagli v. Casdagli

Probate, Divorce and Admiralty
Horridge J., 31 October 1917
Source: The Times, 1 November 1917

LAW REPORT, OCT. 31.

CLAIM TO EGYPTIAN DOMICILE: WIFE'S SUIT FOR DIVORCE.

CASDAGLI v. CASDAGLI.

(Before MR. JUSTICE HORRIDGE.)

This was the petition of Jeanne Casdagli for a divorce from Demetrius Emmanuel Casdagli on the grounds of his alleged cruelty and adultery.

The respondent in July, 1916, filed an act on petition on which he alleged that he had been born in England on October 10, 1872; that his father was a naturalized British subject born of Russian parents; that since 1893 he (the respondent) had resided and had his permanent home and had acquired a domicile of choice in the British Protectorate of Egypt; that his wife had been born in Egypt, and had always been, and still was, domiciled there; that his marriage had taken place at Alexandria; that neither he nor his wife had ever had a matrimonial home or residence in England and that they were not domiciled in England.

The respondent therefore alleged that this Court had no jurisdiction to entertain a suit for dissolution of the marriage, and he prayed that the petition might be dismissed.

The petitioner by her answer to the act on petition denied that the respondent had acquired a domicile of choice in Egypt, and alleged that he had never abandoned his English domicile and that the Court had jurisdiction to dissolve the marriage.

The respondent joined issue on the petitioner's answer.

...

Mr. HUME-WILLIAMS said that the respondent was educated in France and England, and in 1899 he went to Egypt with the intention of remaining there, as the climate suited him, and since 1900 he had resided in Cairo.  In Egypt there existed extra-territorial jurisdiction and a British subject who went to live in Egypt had no opportunity of becoming an Egyptian subject because he carried with him his extra-territoriality.  The Consular Court alone had jurisdiction in disputes between British subjects.

The affidavit of the respondent in support of his act on petition was then read by Mr. MURPHY, together with a number of other affidavits, in support of the respondent's contention that his permanent residence was in Egypt, and that he always spoke of Egypt as his home.

Mr. HUME-WILLIAMS read the affidavit of the petitioner in reply, in which she said that the respondent was a member of the Orthodox Greek Church, and that he had always decline to abandon his British nationality.

Counsel also read an affidavit of Mr. Reginald Silley, a barrister, practising in Egypt, in which he said that since the deposition of the Khedive Abbas Hilmi in December, 1914, there had been no change in the law as applied to Europeans. That all the European Powers had maintained their Consular Courts and exercised their territorial jurisdiction, and that the privileges of Europeans under the capitulations had not been interfered with.

Counsel cited and discussed Re Tootal's Trusts (23 Ch. Div., 532), where it was held that a person could not acquire a Chinese domicile by residence in China with the intention of remaining there.  He also cited the Ottoman Order in Council, 1910, p. 103, which was as follows:-

The Supreme Court shall, as far as circumstances admit, have for and within the Ottoman Dominions with respect to British subjects all such jurisdiction in matrimonial causes, except the jurisdiction relative to dissolution or nullity or jactitation of marriage, as for the time being belongs to the High Court in England.

Counsel also cited Abdul-Messih v. Chukri Farra and another (13 App. Cas., 431); Abdallah  v. Rickards ([1888] 4 The Times Law Reports, 622); Maltass v. Maltass (1 Robert, Ecc., 567), The Derflinger (Brit. and Col., Prize Cases, Vol. I., p. 386, 32 The Times Law Reports, 433), the Lutzow and The Koerber (ditto, p. 529).

MR. JUSTICE HORRIDGE. - Then I understand that your arguments are:- (1) Presumption against acquisition of another domicile by the respondent from his habits; (2) even if he intended to do so, extra-territoriality prevented him; (3) dissolution of marriage is excluded from the jurisdiction of the Egyptian Courts.

Mr. HUME-WILLIAMS. - That is so, my Lord.

...  Other cases cited and discussed.

At this stage the Court adjourned.

 

Source:: The Times, 2 November, 1917.

CLAIM TO EGYPTIAN DOMICILE: WIFE'S SUIT FOR DIVORCE.
CASDAGLI v. CASDAGLI.
(Before Mr. Justice Horridge.)
The hearing of this petition, in which Jeanne Casdagli prayed for a divorce from Demetrius Emmanuel Casdagli on the grounds of his alleged cruelty and adultery, was resumed today.
  The respondent in July, 1916,  filed an act on petition in which he alleged that he had been born in England on October 10, 1872; that his father was a naturalized British subject born of Russian parents; that since1895 he (the respondent) had resided and had his permanent home and had acquired a domicile of choice in the British Protectorate in Egypt; that his wife had been born in Egypt and had always been, and still was, domiciled there; that his marriage had taken place at Alexandria, and that neither he nor his wife had ever had a matrimonial home or residence in England, and that they were not domiciled in England.
  The respondent therefore alleged that this Court had no jurisdiction to entertain a suit for dissolution of the marriage, and he prayed that the petition might be dismissed.
  The petitioner by her answer to the act on petition denied that the respondent had acquired a domicile of choice in Egypt, and alleged that he had never abandoned his English domicile and that the Court had jurisdiction to dissolve the marriage.
  The respondent joined issue on the petitioner's answer.
  Mr. Hume-Williams, K.C., Mr. Patrick Hastings, and Mr. Talbot-Ponsonby appeared for the petitioner; and Mr. George Wallace, K.C., and Mr. J. Harvey Murphy for the respondent.
  Mr. Hume-Williams, continuing his argument on behalf of the petitioner, cited Hall on Foreign Jurisdiction of the British Crown, pp. 183,184, and Piggott on Extra-Territoriality, 1892 Edition, p. 141.
  Mr. W. R. B. Briscoe, barrister, examined by Mr. Hume-Williams, said that he had practised in Egypt from 1897 to the end of June, 1906, both in the Consular Court and the Mixed Tribunals. In 1905 he was Crown Prosecutor for Egypt.  He produced the Ottoman Order in Council of 1910. He said that a husband and wife of British nationality would be exclusively subject to the Consular Courts in suits for judicial separation. By the Egyptian Order in Council, 1915, it was laid down that Europeans should enjoy the same privileges as they had done before the abolition of Turkish suzerainty. There was no Court in Egypt where a wife of a British subject could bring a suit for divorce against her husband. The Judge who dealt with a question of status would, in the case of a British subject, be the Judge of the British Consular Court.
  Mr. Wallace said that it was a fallacy to suppose that the divorce jurisdiction applied to British subjects generally. It only applied to those of English domicile. He contended that the domicile of the respondent was Egyptian - not Anglo-Egyptian. The question was whether the respondent resided in Egypt with the intention of residing there for an unlimited time., i.e., domicile in fact. The respondent went out to Egypt for his health 22 years ago, and had been there ever since with the exception of certain holidays. He was married in Egypt to a lady who had never been out of Egypt, so far as was known. Because he was a member of a firm which had a business in Manchester that did not give him an English domicile. From his wife also it was quite clear that the respondent intended to reside permanently in Egypt. Whatever the law might be, an Englishman in fact could acquire a domicile in Egypt.
  Mr. Murphy submitted that the respondent was qualified to elect an Egyptian domicile in December, 1914, when the suzerainty of Turkey was abolished, and as the Order in Council was not made until February. 1915, the respondent was able to clothe himself with an Egyptian domicile in that interval.
  Mr. Justice Horridge said that he had come to the conclusion that the law of Egypt included the law promulgated on behalf of British subjects, and that the law of Egypt was the law of the territory to consider, and not the law of England.
  At this stage the Court adjourned.

See also [1919] A.C. 145.

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