Divorce should be country of domicile. ulterior motive, is probably enough to found the foreign jurisdiction so that the foreign sentence may be allowed here. When neither the domicile or place of celebration is or has been English, a sentence pronounced by a Court of the matrimonial domicile will be deemed of effect here, and a sentence of a Court of the place of celebration is sufficient if so regarded by the law of the domicile. A foreign sentence in a matrimonial cause, as any other foreign judgment, is vitiated by fraud or collusion (l). The only fair and satisfactory rule to adopt as regards jurisdecided in the diction is to insist upon the parties in all cases referring their matrimonial differences to the Courts of the country in which they are domiciled. Different communities have different views and laws respecting matrimonial obligations, and a different estimate of the causes that should justify divorce. It is both just and reasonable, therefore, that the differences of married people should be adjusted in accordance with the laws of the community to which they belong, and dealt with by the tribunals which alone can administer those laws. An adherence to this principle will preclude the scandal which arises when a man and woman are held to be man and wife in one country, and strangers in another (m). Though there can be no doubt of the soundness of this principle, it cannot, unfortunately, be considered as absolutely established in English law (n); but after the decision of the Judicial Committee of the Privy Council in Le Mesurier v. Le Mesurier (o), it may be assumed that the House of Lords will, when the opportunity is afforded them, overrule the judgment of the Court of Appeal in Niboyet v. Niboyet. In the former case the Privy Council decided that the permanent domicile of the spouses within a territory is necessary to give to its Courts jurisdiction so to divorce à vinculo, that its decree to that effect shall, by the general law of nations, possess extra-territorial authority. Nor would it, even if firmly established, in every case prevent collision between the courts of different countries, because there would still, in each case, remain the fact of domicile to be established; and as all countries do not adopt the same rules of evidence, the evidence on this question (1) Harvey v. Farnie (1880), 8 App. Cas. 43; Turner v. Thompson (1888), 13 P. D. 37; Dolphin v. Robins (1859), 7 H. L. C. 391; Scott v. Att.-Gen. (1886), 11 P. D. 128; Briggs v. Briggs (1880), 5 P. D. 163; Lolley's Case (1812), R. & Ry. 237. See also Green v. Green, (1893) P. 89; The King v. Earl Russell, (1901) A. C. 446. Cf. Foote, pp. 109 seq., and the cases there cited. (m) Wilson v. Wilson (1872), L. R. 2 P. & D. 442. (n) Niboyet v. Niboyet (1878), 4 P. D. 1. (0) (1895) A. C. 517. In Armytage v. Armytage, (1898) P. 178, Barnes, J., treated Niboyet v. Niboyet as being no longer law. might be very different in one country from what it would be in another (p). tion to divorce. Their lordships further held, in Le Mesurier v. Le Mesurier, Domicile that a so-called "matrimonial domicile," said to be created by a necessary to give jurisdic bona fide residence of the spouses within the territory, of a less degree of permanence than is required to fix their true domicile, cannot be recognised as creating such jurisdiction. This ruling may be considered as setting at rest the doubts expressed by Lord Colonsay in the House of Lords in 1868 as to whether a domicile for all purposes is necessary to give a foreign Court such jurisdiction as will ensure the recognition of the divorce in England (q). It was not necessary to decide the point, because in the case before the Court the domicile of the parties was English; the husband' had committed adultery in England, and both parties had then gone to Scotland, and remained forty days there, simply to give the Scotch Court jurisdiction. The divorce was therefore an evasion of English law. "The result is," said Lord Westbury, “that a sentence of divorce under such circumstances may be binding in Scotland, although of no validity in the territory of England. But this disgraceful anomaly can only be removed by the Legislature" (r). The present state of the law as evolved out of a long series of contests between the English and Scotch Courts is summed up by Professor Dicey as follows: "The Scotch Courts, as represented by the House of Lords, would appear to have surrendered the claim to dissolve the marriage of persons not domiciled in Scotland, or at least to look with great doubt on the doctrine that either the locus delicti or residence for forty days gives jurisdiction in matters of divorce (s). . . . . As the English Courts have now conceded that an English marriage may be dissolved by the tribunals of any country where the parties are domiciled at the time of their divorce (t), it follows that a Scotch divorce will be held valid in England if the parties to the marriage are at the time of the divorce domiciled in Scotland, and unless they are so domiciled will in general not be held valid" (u). Princess An interesting case regarding the effect to be attributed to the Case of the second marriage of a woman in Germany, who had been previously Bibesco. married in France, where divorce was not then permitted, occurred (p) Wilson v. Wilson (1872), L. R. 2 P. & D. 442. (g) Shaw v. Gould (1868), L. R. 3 H. L. 96. See also Brodie v. Brodie (1861), 2 Sw. & Tr. 259; Shaw v. Att.-Gen. (1870), L. R. 2 P. & D. 156; Briggs v. Briggs (1880), 5 P. D. 163; Harvey v. Farnie (1880), 5 P. D. 153, 157; 6 P. D. 35, 50, 51; 8 App. Scott v. in 1875. The Princess de Bauffremont was married in France to a Frenchman, and in August, 1874, obtained a 'séparation de corps from the French Courts. In May, 1875, she was naturalized at Saxe-Altenburg, and became a subject of the German Empire. She then domiciled herself near Dresden, and in October, 1875, married the Prince Bibesco, at Berlin, according to the laws of Germany. The opinion of Prof. Holtzendorff, of Munich, was asked as to the effect of this second marriage, and he fully considers the subject in his reply (x). By the law of Germany, naturalization will not be conferred unless the applicant is capable of contracting by the law of his own country (y). This refers to a general incapacity to contract, and the incapacity of a French subject to marry after a séparation de corps' is a special incapacity, and one not contemplated in the German law. Henca the naturalization of the Princess was valid in Germany. The French code (z) provides, without any limitation, that the quality of French subject is lost by naturalization abroad, and by the common law of Germany a séparation de corps' is looked upon as equivalent to a divorce (a). Thus Prof. Holtzendorff argued that the Princess, having rightfully ceased to be a French, and having become a German subject, also acquired the right of marrying again, and that the marriage was certainly valid in Germany. Whether the marriage would be recognised in France appears to be an open question, but there is some authority for supposing that it would (b). And in a case where the husband and wife, both domiciled in Ireland, were married in that country, and there resided for about two years, and subsequently acquired a domicile at the Cape, and the wife was divorced from her husband by a sentence of the proper Court at the Cape, and later came to England with the intention of remaining here, and contracted a marriage here; it was held by the English Court that this second marriage was valid, although the law prevailing in the colony prohibited the re-marriage of a guilty party as long as the innocent party remained unmarried (as the facts were). For, it was said, the wife having become by the foreign divorce an unmarried person, she was free to acquire, and had acquired, a new domicile, by which her capacity to re-marry was to be regulated (c). (x) See Revue de Droit Inter- (y) Law of 1st June, 1870. (a) Schulte, Handbuch des Katho- (b) Merlin, Questions de Droit, Di vorce, 11, p. 350. Story, § 214. (c) Scott v. Att.-Gen. (1886), 11 P. D. 128; and see Warter v. Warter (1890), 15 P. D. 152; Story, p. 117, note (a); Moore v. Hegeman, 92 N. Y. 521; Thorp v. Thorp, 90 N. Y. 602. 241 CHAPTER III. NATIONAL CHARACTER AND DOMICILE. between domicile, and QUESTIONS relating to national character and domicile are of Distinctions such importance in private international law, and have so fre- national quently arisen since Wheaton published the last additions to his character, text, that some account of the present state of the law on these allegiance. points seems necessary. The question of domicile as it affects the property of merchants during war is considered in a subsequent part of this work (a). It has been distinguished from domicile. jure gentium during peace (b). It is necessary at the outset to distinguish clearly what is meant by the terms national character and domicile. The distinction was explained by Lord Westbury in the House of Lords as follows:-"The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions; one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance. and which may be called his political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status. The political status may depend on different laws in different countries; whereas the civil status is governed universally by one single principle, namely, that of domicile, which is the criterion established by law for the purpose of determining civil status (c). For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage succession, testacy or intestacy must depend" (d). The political status of the individual is called his national character, his civil status is referred. to by the term domicile. Domicile and residence are two distinct (a) See post, pp. 443 seq. Moo. (b) Per Dr. Lushington in Hodgson v. De Beauchesne (1858), 12 P. C. 313. The two are very different; the distinction between them has been demonstrated, and they have been accurately and carefully contrasted by Professor Dicey, Conflict of Laws (1908), Appendix, Note 7, (c) It is the criterion in English Definitions of domicile. things. Residence is a matter of fact, although it is difficult to define what amounts to it (e), but domicile is an idea of law. It is a relation which the law creates between an individual and a particular country in which the individual is said to have his domicile (f). National character is also an idea of law, but it is quite distinct from domicile. A person may be invested with the national character of one country and be domiciled in another (g). Allegiance is a term synonymous with national character. By it is understood the obligations of fidelity and obedience, which an individual owes to the State whose national character he bears (h). It is remarkable that no definition of domicile has as yet been universally accepted (i). It has been said to be "A residence at a particular place accompanied with positive or presumptive proof of an intention to remain there for an unlimited time" (k). This explains what constitutes a domicile, perhaps better than it can otherwise be expressed, but is not strictly a definition. The actual fact of residence makes it probable the party is domiciled there, but on the other hand a person may be domiciled in a country he seldom visits. In its ordinary acceptation a person's domicile means the country where he lives and has his home (1), and if he has been married and has not been separated from his wife, the country of his domicile will probably be the one where his wife lives--that is, where his chief establishment for the purposes of habitation is. But the presumption thus created may be repelled by evidence that it was not the person's intention to remain there for an indefinite time (m). Two ingredients are essential to domicile. There must be the fact that an abode which can in some shape or other be considered a home exists in the country, and there must be the intention that this abode shall not cease to be the home within any definite period. The domicile of a wife during (f) Bell v. Kennedy (1868), L. R. 1 Sc. & Div. 307; Abd-ul-Messih v. Farra (1887), 13 App. Cas. 431, 439. (9) Per Lord Chancellor Hatherley (h) Foote, ibid. his text (p. 82) runs as follows: "The domicile of any person is, in general, the place or country which is in fact his permanent home, but is in some cases the place or country which, whether it be in fact his home or not, is determined to be his home as a rule of law." Cf. Foote, p. 48. (k) Guyer v. Daniel, Binney, 349, note; Mitchell v. U. S., 21 Wallace, 352. (1) Story, Conflict of Laws, § 41; and see Craignish v. Hewitt, (1892) 3 Ch. 180. (m) Forbes v. Forbes (1854), Kay, 364; Aitchison v. Dixon (1870), L. R. 10 Eq. 589; D'Etchegoyen v. D'Etchegoyen (1888), 13 P. D. 132. |