Date and Time: Wednesday, 15 September, 2021 11:35:00 AM MYT

Job Number: 152912123

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1. COPINGER-SYMES v COPINGER-SYMES & ANOR, [1959] 1 MLJ 196

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 COPINGER-SYMES v COPINGER-SYMES & ANOR
CaseAnalysis
| [1959] 1 MLJ 196

COPINGER-SYMES v COPINGER-SYMES & ANOR [1959] 1 MLJ 196

DIVORCE JURISDICTION IPOH

Case Summary
Divorce — Petition for decree of dissolution of marriage on ground of adultery — Proof of marriage
solemnised in Irish church — Admission of adultery — Proof of adultery — Domicile of parties — British
army officer of Irish origin — Intention not to live in Ireland — No sufficient proof of acquisition of domicile
of choice — Divorce Ordinance, 1950

Evidence Ordinance, 1950, s 82 — Certified true extract from Marriage Register of Church marriage —
Whether admissible

The petitioner is a regular British Army officer on secondment to the Federation Army. He married the respondent in Ireland in
1950. The issues to be decided were (1) whether the marriage and the adultery had been proved so as to entitle the petitioner to
a decree of dissolution, or judicial separation, and (2) the domicile of the parties to the marriage. Petitioner sought to prove his
marriage by his own sworn evidence and by production of a certified true extract from the Marriage Register of the Church in
which the marriage was solemnised signed by the clergyman; and as to adultery, he sought to prove it by written admissions
voluntarily made by the respondent and the co- respondent and by inferences to be drawn from circumstances to which he had
testified.

The petitioner was born in Ireland; his father, now deceased, was born and permanently resident in Southern Ireland, and his
mother still lives there. The petitioner's case was that when he joined the British Army in England in 1944 and became a full-
time regular soldier, he abandoned his domicile of origin and acquired a domicile of choice in the United Kingdom. In 1953 he
voluntarily became registered as a citizen of the United Kingdom and Colonies under section 6(1) of the British Nationality
Act, 1948, and this circumstance was urged as corroborative evidence of his intention permanently to sever his connection with
Ireland, and to acquire an English domicile.

Held:

(1) a certified true extract from the Marriage Register of the Church in which the marriage was solemnised signed by the
officiating clergyman is admissible in England, and therefore by virtue of section 82 of the Evidence Ordinance is
admissible also in the Courts in Malaya;
(2) confessions or admissions of adultery by a respondent are jealously scrutinised, especially if made by a spouse who
desires to be divorced, and the Court will refuse to act upon confessions alone unless the surrounding circumstances
indicate that the confession is true. In the circumstances of this case, the petitioner has proved his case;
(3) the petitioner's sworn testimony that he has formed the intention not to live in Ireland is a purely negative intention
and it is not sufficient to support the acquisition of a domicile of choice since it only discloses the existence of the
animus without establishing the necessary factum;
(4) he has not succeeded in bringing himself within the jurisdiction of the Court so far as his petition for a decree of
dissolution of marriage is concerned.
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COPINGER-SYMES v COPINGER-SYMES & ANOR

Decree of judicial separation ordered.

Cases referred to

Wallace v Wallace (1896) 74 LT 253

Whitton v Whitton [1900] P 178

Boldrini v Boldrini & Martini [1932] P 9 1317

Donaldson v Donaldson [1949] P 363 365

Wilson v Wilson (1872) 2 P & D 435 447

Hickson v Hickson [1935] MLJ 265 150 [1935] FMSLR 140

Ex parte Cunningham, In re Mitchell (1884) 13 QBD 418 422423at425

Forbes v Forbes 69 ER 145 151

Somerville v Somerville 31 ER 839 840

In re Macreight, Paxton v Macreight (1885) 13 ChD 165 168

DIVORCE

WJ Huntsman for the petitioner.

Yeoh Kian Teik for the co-respondent.

GOOD J
This is a petition for a decree of dissolution of marriage on the ground of adultery. The petitioner is a regular officer in the
British Army which he joined in 1944. He holds the rank of Major in the Royal Inniskilling Fusiliers, and is at present on a
three-year secondment to the Federation Army.

The petitioner married the respondent in the Republic of Ireland in 1950, and there is one child of the marriage. There is no
application for custody in the present proceedings (and I was informed that the child is out of the jurisdiction). The petitioner
has abandoned his claim for costs against the co-respondent, and only two issues remain to be decided: (1) whether the
marriage and the adultery have been proved so as to entitle the petitioner to a decree of dissolution, or of judicial separation,
as the case may be; and (2) the domicile of the parties to the marriage. The jurisdiction of this Court to make a decree of
dissolution being limited to cases where at the time when the petition was presented both parties were domiciled either in the
Federation or in the United Kingdom, and there being some doubt as to the petitioner's domicile, the petitioner has
included in his petition an alternative prayer for a decree of judicial separation.

The marriage between the petitioner and the respondent is proved by the petitioner's own sworn evidence and by the production
of a certified true extract from the Marriage Register of the Church in which the marriage was solemnised signed by the
officiating clergyman. The question arises whether this document is admissible in a Federation Court under the law of the
Federation. Section 82 of the Evidence Ordinance, 1950, provides:—

"When any document is produced before any Court, purporting to be a document which by the law in force for the time being in
England or Northern Ireland would be admissible in proof of any particular in any Court of Justice in England or
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COPINGER-SYMES v COPINGER-SYMES & ANOR

Northern Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by
the person by whom it purports to be signed — [*197]

(a) the Court shall presume that such seal, stamp or signature is genuine, and that the person signing it held at the time when he
signed it the judicial or official character which he claims;

(b) the document shall be admissible for the same purpose for which it would be admissible in England or Northern Ireland."

It therefore becomes necessary to determine whether Exhibit P.2 would be admissible in I proof of the marriage in a Court of
Justice in England without proof of the officiating clergyman's signature, and without proof that when he signed the certificate
he was the incumbent of the office of Rector of the parish. This question arose in Wallace v Wallace (1896) 74 LT 253 and
in Whitton v Whitton [1900] P 178. In both those cases, the proof of the marriage was tendered in precisely the same form as
it has been tendered in the present case. In Wallace v. Wallace a copy of an entry, taken from the Register of Marriages
solemnised at St. Kevin's Church, Dublin, in the year 1866, was put in. The copy purported to be signed and certified as a true
copy by the clergyman of the parish. In Whitton v. Whitton a copy of an entry in the Register of Marriages, certified by the
Curate of the Mariners' Church, Kingstown, in the County of Dublin, was put in. In Wallace v. Wallace, Barnes, J. said: "Is
that sufficient in the case of an Irish marriage? I rather think that the Registrar-General's certificate is requisite in such cases."
In Whitton v. Whitton, Jeune, P. said: "Is that sufficient to prove a valid marriage? Must there not also be evidence that the
marriage in question was a good and valid marriage according to the law of Ireland? The point is technical, and may seem
rather absurd from a popular point of view; but in matters of such importance as marriage and divorce, we must be strictly
regular." In both cases Counsel for the petitioner relied on sections 10 and 14 of Lord Brougham's Act (14 & 15 Vict. c.99),
and the learned Judge and President respectively were satisfied and admitted the certified copy of the entry without further
proof. That the position has in no way been altered by constitutional changes which have taken place in Ireland since those
cases were decided appears clear from section 2(1) of the Ireland Act, 1949, by which it is expressly declared that the
Republic of Ireland is not a foreign country for the purposes of any law in force in the United Kingdom. From this it would
appear to follow that the application of the relevant provisions of Lord Brougham's Act is saved from extinction
notwithstanding the metamorphosis which has overtaken the constitutional relationship between the two countries, and I see no
reason to suppose that the Courts in England since the 18th of April, 1949, when the twenty-six counties then known as Eire
became a Republic, would not follow Wallace v. Wallace and Whitton v. Whitton, and continue to admit such certified
entries in proof of marriages solemnised in the territory comprised in the Republic of Ireland. It follows that if such a certified
entry is admissible in England, as I think it is, it will by virtue of section 82 of our Evidence Ordinance be admissible also in
the Courts of this country, and I accordingly admit it and find that the fact of the marriage has been proved.

The adultery is proved by written admissions voluntarily made by the respondent and the corespondent, and inferences which,
it seems to me, must necessarily be drawn from the circumstances to which the petitioner has testified. The relationship
between the respondent and the corespondent during the material time referred to in the Petition is demonstrated by the
evidence of the petitioner, which I have no hesitation in accepting, to have been of such a character that the inescapable
conclusion is that it was adulterous. Confessions or admissions of adultery by a respondent are, as the learned author of Rayden
on Divorce says at page 137 of the 7th Edition, jealously scrutinised, especially if made by a spouse who desires to be
divorced. The Court will refuse to act upon confessions alone unless the surrounding circumstances indicate that the confession
is true. The petitioner's evidence of the circumstances in which he found the respondent and the corespondent when he
followed his wife to the co-respondent's house on the night of the 27th October, 1957, and the fact that from that date until the
2nd of November when she went to stay in a hotel in Kuala Lumpur she went out every night and did not return until the small
hours of the morning (the inference being that she spent the time with the co-respondent since it is unlikely in the
circumstances that she spent it with anyone else), to my mind combine to provide the corroboration for which the Court as a
matter of common prudence, to put it no higher than that, should look before accepting a confession by the guilty party.

I am satisfied that the case for the petitioner has been proved; that the petitioner has not in any manner been accessory to, or
connived at, or condoned the adultery; and that the petition has not been presented or prosecuted in collusion with the
respondent or the co-respondent. The petitioner is therefore entitled to a decree of dissolution of marriage, or to a decree of
judicial separation, whichever the circumstances of his domicile permit.

The petitioner was born in 1925 in County Mayo, Eire, (now the Republic of Ireland). His father, now deceased, was born and
permanently resident in Southern Ireland. His mother still lives there. The petitioner's case is that when he joined the British
Army in England in 1944 and became a full-time regular soldier in the Service of the British Crown, he abandoned his domicile
of origin and acquired a domicile of choice in the United Kingdom. In 1953 he voluntarily
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became registered as a citizen of the United Kingdom and Colonies under section 6(1) of the British Nationality Act, 1948,
and this circumstance is urged as corroborative evidence of his intention permanently to sever [*198]
his connection with Ireland, and to acquire an English domicile. During his military service he has been stationed mainly in the
United Kingdom, but from time to time he saw service overseas in Egypt and Malaya with his Regiment, or with Army units to
which he was temporarily attached. He paid occasional visits to his parents in Ireland about once in every 2¼ years, and during
the period from July, 1953, when he returned to the United Kingdom from Egypt, until February, 1957, when he was posted to
Malaya, he paid one visit to Ireland to see his parents.

Whatever may be the petitioner's intention with regard to the abandonment of his domicile of origin (and he says that he
will never return to Ireland permanently but will on retirement settle down either overseas or in England), he has not yet taken
any overt step, except to join the British Army, from which there could be inferred an intention to acquire a new domicile of
choice. All the authorities are unanimous in holding with Lord Handworth, M.R. in Boldrini v Boldrini and Martini [1932] P
9 13,17 that the matter "must be decided animo et facto." Lawrence, L.J. in the same case said: "What had to be shown is that
when the petitioner presented his petition he was residing in England with the fixed intention of making England his home."
And in Donaldson v Donaldson [1949] P 363 365 Ormerod, J. said: "Counsel for the respondent must satisfy me that at
the time of this divorce (i.e. a divorce between the same parties in the United States) … the respondent was not only residing in
Florida but had made up his mind to reside there permanently and had thereby acquired a domicile of choice." The person
claiming to have acquired a new domicile of choice must, for his claim to succeed, have "burnt his boats." He must have settled
in the country of his choice, or at least have taken some step indicating an intention to take up permanent residence there, such
as the purchase of a house for his own occupation, the transfer of his effects (as an ancient Roman would have removed his
Lares and Penates) or the like.

In Wilson v Wilson (1872) 2 P & D 435 447 which is referred to in the local case of Hickson v Hickson [1935] MLJ 265
150 [1935] FMSLR 140 the Judge Ordinary said: "Change of domicile is to be inferred, as it seems to me, from the man's own
oath, coupled with the circumstance that there is not sufficient evidence to induce the Court to disbelieve it." Applying that test
I have no hesitation in this case in accepting the petitioner's sworn testimony that he has formed the intention not to live in
Ireland, but this is a purely negative intention and it is not sufficient to support the acquisition of a domicile of choice since it
only discloses the existence of the animus without establishing the necessary factum.

The sole question that remains to be determined is whether the fact that the petitioner joined the British Army operates to effect
a change of domicile in his case. His Counsel fairly and frankly admitted the difficulty in which he found himself, but stated
that he relied, as authority for the proposition that soldiers in the service of a foreign power are in a special position with
regard to the acquisition of a domicile of choice, on the observation of Cotton, L.J. in Ex Parte Cunningham In re Mitchell
(1884) 13 QBD 418 422423at425 where the learned Lord Justice said: "No doubt, if a foreigner enters the British Army and
resides in England his domicile will be in England." This was obiter dictum since the precise point did not fall to be decided
in that case, but in the context in which it was said and in the light of the judgments of the other members of the Court of
Appeal and of passages quoted from earlier cases, I might feel obliged to follow it in the present case if it could be shown that
when he joined the British Army the petitioner had the status of an alien under the law of England. Counsel for the petitioner
also relied on a number of cases in which the domicile of covenanted servants of the old East India Company had to be
determined and which the Court of Appeal in Mitchell's case was invited to follow. Forbes v Forbes 69 ER 145 151 will
suffice to demonstrate the principle which these cases established. In that case, Page Wood, V.C. said:

"I apprehend that the question does not turn upon the simple fact of the party being under an obligation by his commission to serve in
India; but when an officer accepts a commission or employment, the duties of which necessarily require residence in India, and there is
no stipulated period of service, and he proceeds to India accordingly, the law, from such circumstances, presumes an intention
consistent with his duty, and holds his residence to be animo at facto in India … and I think it concluded by authority, in which
conclusion my reason entirely, acquiesces, that a service in India, under a commission in the Indian Army, of a person having no other
residence creates an Indian domicile."

Baggallay, L.J., in Mitchell's case, commenting upon the line of cases of which I take Forbes v. Forbes to be representative,
said:

"There are some anomalous cases in which a subject of the Queen had entered into the service of the old East India Company, and it
was held that he had acquired what was called an Anglo-Indian domicile. Such cases can hardly arise now, because the separate
government of the East India Company is at an end, and the army in British India is now part of
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COPINGER-SYMES v COPINGER-SYMES & ANOR

the Queen's army. Perhaps they rather depended on the notion that the officer had entered into the service of a quasi foreign power."

Cotton, L.J. in the same case expounded the ratio decidendi in Forbes v. Forbes in the following words:

"The ground of the decisions in those cases was that the officer was residing in India under circumstances which shewed that he
intended to abandon his domicile of origin, under circumstances which rendered it his duty to reside there permanently. It was not the
entering the service, but the residence in India under circumstances which required him to remain there, which caused the change of
domicile."

and he goes on to say:

"A Scotchman entering into the British army does not by that fact alone acquire a different domicile. His residence in England is only a
temporary one for the purpose of discharging his military duties." [*199]

Following Cotton, L.J., Lindley, L.J. says:

"But, when we are asked to say that, by merely entering into the English Army, an Irishman loses his domicile of origin, I think there is
no authority for the proposition."

Lindley, L.J. had earlier in his judgment considered the cases involving the question of Anglo-Indian domicile and his
comments seem to be very much in point there. He said:

"It is not suggested that those cases have been overruled, but reliance has been placed on the cases relating to Anglo- Indian domicile.
Those cases were anomalous and exceptional, and the theory of them is not very clear. I think it was correctly explained by Turner, L.J.
in Jopp v. Wood.[4 D.J. & S. 623.] He said: 'At the time when those cases were decided the government of the East India Company
was in a great degree, if not wholly, a separate and independent government, foreign to the government of this country; and it may well
have been thought that persons who had contracted obligations with such a government for service abroad could not reasonably be
considered to have intended to retain their domicile here. They in fact became as much estranged from this country as if they had
become servants of a foreign government.'"

The position becomes clear in the light of the comments of the Court of Appeal in Mitchell's case. It is not the fact of being a
soldier, but the fact of having entered the service of a foreign or quasi-foreign government in circumstances incompatible with
the retention of the domicile of origin, that formed the ratio decidendi of the cases on which the petitioner relies. Those cases
are, to adopt the description applied to them by Lindley, L.J., "anomalous and exceptional" and if the petitioner is to succeed he
must show that his is an anomalous and exceptional case on all fours with the East India Company cases, in which event the
principle established by those cases might have to be applied here, since they have never been overruled and they would
be applicable if the circumstances of the present case could be shown to be identical. But in order to show this the petitioner
would have to satisfy the Court that at the time of joining the British Army he was an alien or quasi-alien since the
authorities seem to be unanimous that a British subject having a domicile outside England does not acquire English domicile
by joining an English regiment. In support of this proposition, I refer (a) to Ommaney v. Binaham which is unreported but
which is fully discussed in Somerville v Somerville 31 ER 839 840; (b) to In re Macreight Paxton v Macreight (1885) 13
ChD 165 168 in which Pearson, J. said:

"A British subject does not by merely entering into the British army abandon his domicile, and his remaining in the army is no evidence
of an intention to abandon the domicile which he had at the time when he entered it."

and (c) to the observations of Cotton and Lindley, L.J., in In re Mitchell, as to the position of Scotsmen and Irishmen who join
the British Army, which I have already quoted.

It now becomes necessary to ascertain whether the force of the decisions in the three cases last cited has been in any way
impaired, or their applicability limited, by the constitutional changes which have taken place in Ireland, and in this connection
it is necessary to determine the national status of the petitioner at the time when he joined the British Army. In Halsbury, 3rd
Edition, Volume I, page 357, paragraph 1033, under the heading 'Citizens of the Republic of Ireland', the position before 1949
is summarised as follows:

"Under the law in force before 1st January, 1949, (i.e. the British Nationality and Status of Aliens Acts. 1914 to 1943) any person born,
or whose father was born, anywhere in Ireland, including the twenty-six counties now forming the Republic of
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COPINGER-SYMES v COPINGER-SYMES & ANOR

Ireland, was a British subject. Furthermore any person born after 6th December, 1922 (i.e. the date on which the Constitution of the
Irish Free State came into operation) in the part of Ireland now forming the Republic of Ireland was also, under the law of that country,
a citizen of Eire."

It follows that in 1944 the petitioner was not in English law a foreigner. He was a British subject domiciled in Eire which was
then a part of His Majesty's dominions. It ceased to be so on the 18th April, 1949, by virtue of section 1(1) of the Ireland Act.
1949. The fact that he was also a citizen of Eire did not make him an alien or even a quasi- alien (the non-alien status of
citizens of Eire having been recognised by the British Nationality Act, 1948, which made special provision for enabling
citizens of Eire who were also British subjects to claim to remain British subjects and for certain categories of persons
born on or after 6th December, 1922, who lost their status as British subjects by reason of the passing of the Act, to be
reinstated as British subjects by becoming registered as citizens of the United Kingdom and Colonies). The petitioner took
advantage of these provisions and became registered as a citizen of the United Kingdom and Colonies. Whatever his status
may have been (and for the purposes of this case it is unnecessary to determine it) between the coming into force of the British
Nationality Act, 1948, on the 1st day of January, 1949 and the taking of a positive overt step to obtain his registration as a
citizen of the United Kingdom and Colonies under that Act which he obtained on the 26th May. 1953, it is at all events clear
that he was a British subject when he joined the British Army; that he was a British subject when he presented his Petition; and
that he is a British subject now. It is clear, therefore, that the law as propounded by Pearson, J. in Macreight's case and by
Cotton and Lindley, L.J. in Mitchell's case is applicable to the petitioner and that he has not by joining the British Army lost
his domicile of origin in the territory now known as the Republic of Ireland since he did not acquire an English domicile ipso
facto by joining the British Army.

Since I have already come to the conclusion that he has done no other act which would entitle him to claim the acquisition of a
new [*200]
domicile elsewhere than in the Republic of Ireland, I am consequently obliged to hold that he has not succeeded in bringing
himself within the jurisdiction of this Court so far as his Petition for a decree of dissolution of his marriage is concerned. Since
my jurisdiction only arises if it is shown that both parties were domiciled in the Federation or the United Kingdom at the time
of the presentation of the Petition I cannot make a decree of dissolution of marriage in favour of the petitioner; I can only give
him a decree of judicial separation, and I order accordingly.

Order accordingly.

Solicitors: Maxwell, Kenion, Cowdy & Jones; Gibb & Co.

End of Document