His lordship observed that if the divorce was obtained in fraudem legis, it would not be given effect to in England. "But if you put the case of parties resorting to Scotland with no such view, and being resident there for a considerable time, though not so as to change the domicile for all purposes, and then suppose that the wife commits adultery in Scotland, and that the husband discovers it, and immediately raises an action of divorce in the Court in Scotland, where the witnesses reside, and where his own duties detain him, and that he proves his case and obtains a decree, which decree is unquestionably good in Scotland, and would, I believe, be recognized in most other countries, I am slow to think that it would be ignored in England, because it had not been pronounced by the Court of Divorce here" (q). The other law lords do not appear to have shared in this opinion. It was, however, 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). § 151d. 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 in 1875. The Princesse 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-Altenbourg, 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 Herr Holtzendorff, a professor at Munich, was asked as to the effect of this second marriage, and he fully considers the subject in his reply (s). By the law of Germany, naturalization will not be conferred unless the applicant is capable of contracting by the law of his own country (t). 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. Hence the naturalization of the Princess was valid in Germany. The French code (u) 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 (a) [Shaw v. Gould, L. R. 3 H. L. 96. See also Brodie v. Brodie, 2 Sw. & Tr. 259; Shaw v. Att.-Gen., L. R. 2 P. & D. 156; Briggs v. Briggs, 5 P. D. 163; Harvey v. Farnie, 5 P. D. 153, 157; 6 P. D. 35, 50, 51; 8 App. Cas. 43, 56.] (r) [Shaw v. Gould, at p. 88.] (t) [Law of 1st June, 1870.] Scott v. Att.- divorce (x). Thus Herr 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 recognized in France appears to be an open question, but there is some authority for supposing that it would (y). And in a recent 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 (z). (x) [Schulte, Handbuch des Katho- (z) [Scott v. Att.-Gen., 11 P. D. 128; Story, p. 117, note (a); Moore v. Hegeman, 92 N. Y. 521; Thorp v. Thorp, 90 N. Y. 602.] CHAPTER IIA. NATIONAL CHARACTER AND DOMICILE. between § 151 A. QUESTIONS relating to national character and domicile, are of such Distinctions importance in private international law, and have so frequently arisen national since Mr. Wheaton published the last additions to his text, that some character, account of the present state of the law on these points seems necessary. allegiance. domicile, and 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. 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" (c). 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 things. Residence is a matter of fact, although it is difficult to define what amounts to it (d), but domicile is an idea of law. It is a relation (a) [See post, §§ 318 to 339.] (b) [Per Dr. Lushington in Hodgson v. De Beauchesne, 12 Moo. P. C. 313. The two are very different; the distinction between them has been demonstrated, and they have been accu rately and carefully contrasted by Mr. (d) [King v. Foxwell, 3 Ch. D. 520.] § 151 B. Definitions of domicile. § 151 C. Domicile of origin and of choice. A NATIONAL CHARACTER AND DOMICILE. which the law creates between an individual and a particular country in which the individual is said to have his domicile (e). National character is also an idea of law, but it is quite distinct from domicile. person may be invested with the national character of one country and be domiciled in another (f). 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 (g). It is remarkable no definition of domicile has as yet been universally accepted (h). 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" (i). 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 (k), 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 (7). 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 shail not cease to be the home within any definite period. The domicile of a wife is that of her husband (m); but if the husband and wife live apart, without being judicially separated, it seems that the wife may acquire a separate domicile from that of the husband (n). It is a settled principle that no man shall be without a domicile, and to secure this result the law attributes to every individual as soon as he is born the domicile of his father, if the child be legitimate, and the domicile of the mother if illegitimate. This has been called the domicile of origin, and is involuntary. Other domiciles, including domicile by operation of law, as on marriage, are domiciles of choice. For as soon as an individual is sui juris, it is competent to him to elect and (e) [Bell v. Kennedy, L. R. 1 Sc. & (ƒ) [Per Lord Chancellor Hatherley in (g) [Field, Int. Code, 261.] (h) [Maltass v. Maltass, 1 Robertson, 74.] (i) [Guyer v. Daniel, 1 Binney, 349, note; Mitchell v. U. S., 21 Wallace, 352.] (k) [Story, Conflict of Laws, § 41.] (1) [Forbes v. Forbes, Kay, 364; Aitchison v. Dixon, L. R. 10 Eq. 589; D'Etchegoyen v. D'Etchegoyen, 13 P. D. 132.] (m) [Story, § 46; Firebrace v. Firebrace, 47 L. J. P. D. & M. 41; Harvey v. Farnie, 8 App. Cas. 43, 50, 51.] (n) [Le Sueur v. Le Sueur, 1 P. D. 139.] assume another domicile, the continuance of which depends upon his act and will. When another domicile is put on, the domicile of origin is for that purpose relinquished, and remains in abeyance during the continuance of the domicile of choice; but as the domicile of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principles on which it is by law created and ascribed, to suppose that it is capable of being by the act of the party entirely obliterated and extinguished. It revives and exists whenever there is no other domicile, and it does not require to be regained or reconstituted animo et facto, in the manner which is necessary for the acquisition of a domicile of choice. Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicile, not a definition of the term. There must be a residence freely chosen and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed, not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case, so soon as the change of purpose, or animus manendi can be inferred, the fact of domicile is established. The domicile of origin may be extinguished by act of law, as, for example, by sentence of death or exile for life, which puts an end to the statis civilis of the criminal; but it cannot be destroyed by the will or act of the party. Domicile of choice, as it is gained animo et facto, so it may be put an end to in the same manner. When put an end to, the domicile of origin revives and continues until the individual acquires another domicile of choice. Suppose a natural born Englishman to settle in Holland and acquire a Dutch domicile. After a time he quits Holland and travels in France or Italy without settling anywhere. he quits Holland, his English domicile of origin revives, and continues till he acquires another domicile of choice (o). As soon as What is a man's domicile is a question of fact; the consequences of being invested with it, when ascertained, are a question of law. The intention of a person to acquire a domicile of choice must be collected from various indicia incapable of precise definition (p). When a domicile has been acquired it is presumed to continue until it is shown to be renounced, and when a change is alleged, the burden of proof rests (o) [See judgment of Lord Westbury in Udny v. Udny, L. R. 1 Sc. & Div. 4579; Lauderdale Peerage case, 10 App. Cas. 692; Bradford v. Young, 29 Ch. D. 617, 623; Re Marrett, 36 Ch. D. 400; Re § 151 D. Domicile of choice. § 151 E. Change of domicile. |