COUNSEL: R. O. Wilberforce Q.C. and E. I. Goulding for the first defendant
E. J. A. Freeman for the second defendant

SOLICITORS:: Bell, Brodrick & Gray; Janson, Cobb, Pearson & Co.; Thompson, Quarrell & Megaw for Bond, Pearce, Eliott & Knape, Tavistock.

DATES: 1956 June 5, 6.

Roxburgh J.

HEADNOTE: Conflict of Laws — Marriage — Property — Matrimonial domicile — Change of domicile contemplated on marriage — Law governing widow’s rights to husband’s property.

In 1932 the testator, domiciled in England, married a French- woman domiciled in France. After his marriage he retired from active service with the British army and went to live in France with his wife. They did not actually settle there until 1934, but the testator remained in France, with the exception of his residence in England during the war, until his death in 1951, when he had admittedly acquired a French domicile. His widow claimed that the testator’s estate should be administered in community of property [*594] according to the law of France on the ground that the evidence showed an intention on the part of the testator and his wife to live permanently in France immediately after their marriage, which they carried out and thus justified an inference that they intended the law of France to apply to all their personal property as from the time of their marriage.

The widow’s evidence was: “Neither before nor at the time of my marriage … nor at any time afterwards, was there any discussion or express agreement between us as to community or separation of property. It was, however, agreed between us before marriage that as soon as possible we would settle in France and establish our permanent and only home there. We carried this intention into effect":-

Held, (1) that there was a presumption that the law of the husband’s domicile (in this case English) applied to the rights of husband and wife to each other’s movables, which presumption could be rebutted by an express contract, or a tacit contract if the circumstances warranted the inference of such a contract.

(2) That, on the facts, no such inference could be drawn from the conduct of the parties as to justify an inference by the court that they had entered into a tacit contract that the law of France was to apply to their mutual property rights.

In re Martin [1900] P. 211; 16 T.L.R. 354 considered.

Statements in Dicey’s Conflict of Laws (6th ed., pp. 795, 541 and 542) and Cheshire’s Private International Law (4th ed., pp. 491, 492 and 493) discussed.

ADJOURNED SUMMONS.

On May 6, 1932, the testator, Charles Hertel Egerton, married the first defendant, Alice Marie Germaine Egerton, as his second wife. She was at that time domiciled in France and a French-woman. She survived him and he made provision for her in his will, which she regarded as unsatisfactory.

The father of the testator was born at Bunbury, Cheshire, on February 7, 1834, and he had an English domicile of origin. There was no evidence of his ever being in France before the year 1882, though he had previously travelled. On April 10, 1883, the testator’s father was married in France, and on September 22, 1884, the testator was born at Fécamp in France. His birth was registered at the British Consulate. Although the testator, many years afterwards, in 1937 and in 1938, alleged that he had been born in Kent, his Lordship found that that statement was untrue.

The testator lived at various places in France with his parents till 1891, when they brought him to England. He was educated at a school in Bedford; after which he went to the Royal Military Academy at Woolwich. From 1891 until 1903 the testator’s [*595] parents lived in England in furnished accommodation. In 1903, when the testator was 19, his parents returned to France and lived at the Ch‰teau de St. Antoine, which the testator’s mother had inherited, the testator’s father having some kind of business in France.

On January 19, 1904, the testator received a commission in the Royal Engineers, and served chiefly at foreign stations. In 1912 his parents gave up the ch‰teau and came to England and set up a home at Great Bedwyn in Wiltshire. In 1913 his father died at Great Bedwyn. On December 14, 1925, the testator married his first wife at the Garrison Chapel, Rangoon. On April 2, 1930, while the testator was on service in India, his first wife died at Great Bedwyn, at The Croft, her mother-in-law’s home. On July 15, 1930, the will of the testator’s first wife was proved. In that will she had given her address as Bulford Camp, Salisbury, and in the act of probate she was described as being of “The Croft, Great Bedwyn"; there was no suggestion anywhere that she had a French domicile. On February 29, 1932, the testator sailed for England from India. On April 16, 1932, he arrived in England to go on leave. Shortly afterwards, on May 6, 1932, he married the first defendant at the Paddington District Register Office.

On August 27, 1932, the testator asked to be placed on retired pay “owing to reasons of health and private affairs.” On September 18, 1932, his leave expired and he was then granted sick leave until June 20, 1933. Some time in 1932, but later than September 19, he went to France on sick leave pending his retirement. On July 19, 1933, he wrote from The Croft, Great Bedwyn, to the War Office asking for leave to retire from December 21, 1933, and said that on medical grounds he would take up his future residence abroad, probably in the South of France. In August, 1933, he gave a power of attorney to a certain bank to receive his pay from the War Office. On September 17, 1934, he wrote a letter on a business matter to the manager of the trustee department of Barclays Bank Ltd. in which he said: “I will probably be settling shortly in the South of France for reasons of health.” His Lordship held that he did not actually settle in France until after that date, and that his earlier visits to France were of a more tentative character.

Having settled in France, the testator in due course built a house for himself called the “Villa Emenda.” The testator had to acquire land for the purpose of building the house, and he entered into three separate transactions in the purchase of [*596] that land. In one of the transactions appeared the statement that the testator was born in Kent, which was not true, and his Lordship was unable to believe that the testator thought that it was true. It was said that the purchase was effected as between the vendor and the first defendant, “acting with assistance and permission of her husband.” There were three documents of different date, but of substantially the same effect. The document of July 9, 1937, was (according to the translation) as follows: “Sale. Mr. and Mrs. Delgue and Mrs. Larroquere, widow, the appearers hereby sell by binding themselves jointly and severally amongst them to the widest ordinary factual and legal guarantees, to Mrs. Alice Marie Germaine Hertel, wife of Mr. Charles Hertel Egerton aforenamed 'Here present and who accepts, together with the assistance and permission of Mr. Egerton her husband. Mr. and Mrs. Egerton married at Paddington district of London on May 6, 1932, declare to be subject to the English régime and to make the present purchase in the name and for the personal account of Mrs. Egerton born Hertel, so that it may remain the separate property of the said dame Egerton in application of the régime and English law.'”

On one or other of the sites comprised in these three documents, which were dated February 7, 1937, July 9, 1937, and December 20, 1938, the testator built the “Villa Emenda.”

His Lordship found that by this time the testator had undoubtedly acquired a French domicile. He and the first defendant lived in France until shortly before September 1, 1939.

About September 1, 1939, the testator was called up as an officer on the reserve list, but on October 9, 1939, he was permitted to retire on account of ill-health. He returned to France, but came back to England later. On May 3, 1946, he left England, and went back to the “Villa Emenda,” which he found intact.

The testator’s mother died in 1948 in England, but the testator did not go to her funeral, or to England at all on that occasion.

On October 16, 1951, he died at the “Villa Emenda” leaving a will dated July 19, 1946.

Lloyds Bank Ltd., as executors of the testator’s will, took out the present summons asking the court to determine whether his estate should be administered on the footing that the régime of community of property as provided by the law of the Republic of France, with his widow, the first defendant, applied thereto. [*597] Raymond Walton for Lloyds Bank Ltd., executors.

R. O. Wilberforce Q.C. and E. I. Goulding for the first defendant, the testator’s widow. The first submission is that on the facts the testator’s father had acquired a French domicile of choice by the time of the testator’s birth; the testator had, therefore, a French domicile of origin. The evidence does not establish that he ever lost that domicile of Origin, and accordingly he had a French domicile at the date of his marriage to the first defendant.

The alternative submission in law is that where a person at the date of his marriage intends to acquire a French domicile after his marriage, and puts that intention into effect, that would operate to attribute the law of the intended domicile to him, so that the doctrine of community of property — which exists under French law — would obtain as from the date of the marriage.

The first question is under what system of law did these parties intend to live? The evidence is that they intended to live in France as soon as they could; that must mean that they intended to acquire a French domicile. The general rule is that parties intend their relationships in regard to their movable property to be governed by the law of the husband’s domicile at the date of the marriage; but the parties may be deemed to intend their marriage to be governed by the law of the place where they show an intention of going to live after the marriage; that law will in those circumstances replace the law of the husband’s domicile in relation to their movable property. This proposition is not laid down in any reported case, but some support for it is to be found in the textbooks: see Dicey’s Conflict of Laws, 6th ed., pp. 541- 542, and Cheshire’s Private International Law, 4th ed., pp. 491, 493. This case, it is submitted, would fall within the exception laid down by Cheshire (at p. 493), who said that there was a strong presumption that the lex domicilii of the husband at the time of the marriage governed the mutual property rights of the spouses, but that that presumption was rebutted if it were proved that they intended before marriage to establish their home in some other country and had in fact carried out this intention. In such a case the law of the new country attaches on marriage, or at any rate as soon as the parties go to their new home — in this case, France. In Lashley v. Hog1 change of domicile from English to Scottish was held by the House of Lords to carry with it the application of Scottish law to the property relations of husband and wife: see also Dicey (at p. 796).

1 (1804) 4 Pat. 581[, 2 E.R. 1278].

[*598] On the documents of this case, and in all the circumstances, it should be inferred that the parties intended French law to operate on their property when they married.

Alternatively, this case would fall within the proposition of Dicey (at p. 796) that where there is no marriage contract or settlement and there is a subsequent change of domicile the rights of the husband and wife to each other’s movables, both inter vivos and in respect of succession, are governed by the law of the new domicile, except in so far as vested rights had been acquired under the law of the former domicile: see also In re Martin.2

It must be conceded that the parties here did not go to France the day following their marriage, but they went in a year or so; that was as soon as they could go. The evidence is that it was their intention before marriage to go and make their home in France; that is relevant evidence of an intention to acquire a French domicile as soon as they could. Only evidence before marriage is relevant to this question of intention. They intended, therefore, French law to operate from the time they established their domicile in France, and that would have the effect of making French law apply to their movable property as from the time of their marriage. There was, moreover, no permanent home in England from which they had to be uprooted. Although this is not a case of immediate transfer after marriage, or even very shortly after, the period between their marriage and going to France is relatively short when the marriage is looked at as a whole.

E. J. A. Freeman for the second defendant, one of the next- of-kin, was only asked to argue the second submission. Prima facie, the property rights of spouses are dominated by the law of the husband’s domicile at the date of the marriage; but it is also clear that they can agree that other law should operate in respect of them. Where there is a marriage settlement it can be an express or implied term of the settlement. In view of In re Martin3 such an agreement can also be implied by conduct, even in the absence of a settlement. But the prima facie rule can only be displaced if there is clear intention to that effect on the part of the parties. The question, therefore, is what was the intention of the parties at the time of the marriage, i.e., does the court infer on the facts as a whole that the parties intended their property rights to be other than those of the husband’s domicile?

2 [1900] P. 211; 16 T.L.R. 354.

3 [1900] P. 211.

[*599] The proposition is accepted that the law of their rights as to property should be that of the husband’s domicile.

It is possible for parties to agree before marriage that their property rights should be governed by law other than that of the husband’s present domicile, and it may be that such an agreement can be implied, but it can only be implied on the evidence as a whole. It is not really a question of domicile, since the parties might not want to acquire French domicile, but merely want to submit to the property law of France. Although it can be inferred that parties intended the law of the new country to dominate their property, it must be clear that that is so, and merely saying, as in this case, that they were going to live in France is not such evidence. The court from that evidence can infer no more than an agreement between the testator and the first defendant to go and live abroad. No inference can be drawn on this evidence to displace the normal presumption. The date of any such agreement must be before the marriage, and the court must consider the conduct of the parties as a whole and what happened after the marriage. The spouses here married in this country and remained here some time after their marriage; it cannot be suggested on the mere evidence of an intention to live abroad that they intended their property rights to be regulated by foreign law as from be date of their marriage but while still in this country. The prima facie rule is not displaced, and the law of the husband’s domicile at the date of his marriage must apply.

ROXBURGH J., having stated the facts, continued: The first question which I have to determine is not what was his domicile at the date of his death but what was his domicile at the date of his marriage on May 6, 1932. I can find absolutely nothing in his record up to that date which would suggest that he had any domicile other than English. Faced with that problem, Mr. Wilberforce developed before me what was indeed a most ingenious argument, except that I think that the first part fails. He submitted that the testator’s father was a domiciled Frenchman. His domicile of origin was, therefore, French, and there was nothing to show that he had elected to acquire an English domicile, because in truth and in fact he had been here, there, and everywhere from the time of his birth until the date of his second marriage in 1932. I think that if the premise had been well founded, that argument, though I hardly feel that it savours much of reality, would have been [*600] difficult to displace. But I think the premise is ill founded. The testator’s father was born in that most English county of Cheshire as long ago as 1834. His domicile of origin was English, and there is, in my judgment, no evidence whatever that he had abandoned his domicile of origin in favour of a domicile of choice in France by the time the testator was born in the year 1884. There is no evidence of his ever having been in France before 1882. I have no account whatever of his previous life, which had already endured from 1834. All I can say is that I am not prepared to find that the testator’s father ever had a domicile of choice in France, and, accordingly, that ingenious superstructure collapses.

But that is by no means the end of the case, because Mr. Wilberforce has propounded an argument which might almost be said to set the professors by the ears. To start on a safe foundation, I will first read rule 171 in Dicey’s Conflict of Laws, 6th ed., p. 795, which says: “Where there is no marriage contract or settlement, and where no subsequent change of domicile on the part of the parties to the marriage has taken place, the rights of husband and wife to each other’s movables, whether possessed at the time of the marriage or acquired afterwards, are governed by the law of the matrimonial domicile, without reference to the law of the country where the marriage is celebrated or where the wife is domiciled before marriage.” That is indisputable law. So that, prima facie, the law applicable in the present case, on the finding of fact which I have just made, is English law. I have deliberately used the phrase “prima facie.” I can disregard the words of the rule “where no subsequent change of domicile on the part of the parties to the marriage has taken place.” In truth there was a subsequent change in the domicile in the present case. But I need not pursue that question further because, for reasons connected with French law, which I need not elaborate but which Mr. Wilberforce found quite compelling, he did not base any argument on the subsequent change of domicile.

What Mr. Wilberforce did was to explore the problem which has been the subject of debate between Dr. Morris, the author of the note that I am going to read, and Dr. Cheshire. The particular note refers to a somewhat different position, namely, where there is a marriage contract, but for the present purpose that is not important because it is really a discussion of the phrase “matrimonial domicile.” The passage in the text of [*601] Dicey (at p. 541) is as follows: “The marriage contract, or settlement, will be construed with reference to the proper law of the contract, i.e., in the absence of reason to the contrary, by the law of the husband’s actual domicile at the time of the marriage. The husband’s actual domicile at the time of the marriage is hereinafter termed the 'matrimonial domicile.'” I have read that passage in order to explain the note, because it is the note and not the passage which really raises the issue. Dr. Morris says this (at p. 542): “Whether in this Exception and in the rest of this Digest the term 'matrimonial domicile' ought to be extended, so as to mean the intended domicile of the husband, when, as occasionally happens, he, though domiciled in one country, intends, to the knowledge of both parties to the marriage, to become immediately domiciled in another country (e.g., France),” — and I stress at once the word “immediately” — “is a question on which there is no decisive English authority. On the theory, however, of a tacit or express contract between the parties about to marry, that their mutual property rights shall be determined by the law of their matrimonial domicile, the extension of that term so as to include the country in which they intend to become, and do become, domiciled immediately after their marriage” and I again stress that word — “seems to some authorities reasonable. For instance, if H, domiciled in England, marries in England W, domiciled in South Africa, and H and W sail to South Africa immediately after the ceremony” — and again I stress the word “immediately” — “intending to make it their permanent home, it would seem reasonable at first sight to hold that South Africa, and not England, was their matrimonial domicile. The difficulty is, however, that there is no conclusive English authority in favour of this view, and there are practical difficulties in its application. What if H and W do not sail to South Africa until a month — or a year — after the ceremony? Where is the line to be drawn? Are the rights of the spouses to be in suspense until they actually acquire a new domicile in pursuance of their pre-matrimonial intention? It is submitted that the safer rule to adopt is that the matrimonial domicile means the husband’s domicile at the time of the marriage. In a clear case where the parties change their domicile very shortly after the marriage” — and I do again stress the words “in a clear case” — “in pursuance of a pre-matrimonial intention to that effect, the change of domicile might well be a 'reason to the contrary' within the meaning of the exception. [*602] This way of looking at the matter has the advantage of avoiding the use of a term of ambiguous meaning which suggests either that a change of domicile can be effected by mere intention, or that 'matrimonial domicile' means something different from 'domicile' simpliciter.”

Different, however, is the approach of Dr. Cheshire in Private International Law. The passage is too long for me to read in extenso, and I am only going to read extracts. It begins with these words (4th ed., at p. 491): “Although there is no clear- cut and decisive authority, the prevalent view is that the determining domicil is that which the husband possesses at the time of the marriage. On the whole it is an unobjectionable view, for in the vast majority of cases the parties retain the husband’s domicil immediately after the marriage. Nevertheless, a rule better calculated to function more justly and more conveniently in every case is one which selects the country of the intended matrimonial home. This is equivalent in the normal case to the domicil at the time of the marriage, but its merit is that it meets the not unusual case where the parties intend to settle immediately after marriage in another country.” After leaving something out, I read again (at p. 492): “It is respectfully submitted, however, that the just and reasonable view to take” — on the facts, which he had just mentioned — “is that the law of the country in which the parties intended to settle immediately, in which in fact they did settle, and in which so far as they could foresee they would remain for the rest of their married lives, should be allowed to govern their mutual proprietary rights. The reasonable inference from the circumstances is that they intended to submit themselves in toto to the matrimonial régime, proprietary as well as personal, obtaining in their future home.” Then he says (on p. 493): “The view that the matter should be governed by the law of the intended matrimonial home lacks neither doctrinal analogy nor juristic support.” Then he says later: “It is undeniable, of course, that the practical application of the doctrine of the intended matrimonial home may in some cases encounter considerable difficulties… . How quickly must the intention to settle in the specified country be implemented? What if there is unforeseen delay or some accident which frustrates the design? Will effect be given to the alleged intention if it remains a secret locked in the breasts of the parties? These difficulties are no more insuperable than those which often attend the ascertainment of intention in a disputed case of [*603] domicil. Everything hinges on intention, but the dominion of the lex domicilii of the husband at the time of the marriage is not displaced unless the intention to acquire a new home is established by irrefragable evidence. In fact, the suggested rule goes no further than this: There is a strong presumption that the lex domicilii of the husband at the time of the marriage governs the mutual proprietary rights of the spouses. This presumption is rebutted if it is proved that they intended before the marriage to establish their home in some country other than the husband’s domicil and that they have in fact carried this intention out. The presumption may be rebutted, though not lightly, if the question fails to be considered before the intention has been carried out.” If that suggested rule is in fact a rule of English law, then I think there is no doubt that Mr. Wilberforce’s client would succeed in the present case, because the first defendant has deposed to the following statement in an affidavit, she has not been cross-examined on it, and it is a statement which I accept. She says this: “Neither before nor at the time of my marriage to the testator, nor at any time afterwards, was there any discussion or express agreement between us as to community or separation of property. It was however agreed between us before marriage that as soon as possible we would settle in France and establish our permanent and only home there. We carried this intention into effect, and neither of us ever had a permanent home outside France after the date of our marriage.”

I have, therefore, to approach this controversy between Dr. Morris and Dr. Cheshire with that caution and respect which they both deserve. I think a good starting point is a passage in the judgment of Vaughan Williams L.J. in the Court of Appeal in In re Martin,1 where he says this2: “In my opinion, the effect of the husband’s domicile on the matrimonial property is based on the presumption that you must read the law of the husband’s domicile into the marriage contract as a term of it, unless there is an express agreement to the contrary.” I must respectfully differ from those last words “unless there is an express agreement to the contrary,” because I see no reason why, if the facts warrant it, an agreement which is sometimes erroneously called “a tacit agreement” might not be as effective as an express agreement. What I am referring to is concisely described in Anson’s Law of Contracts (15th ed., p. 22), which says: “The description which I have given of the possible

1 [1900] P. 211; 16 T.L.R. 354.

2 [1900] P. 211, 240.

[*604] forms of offer and acceptance shows that conduct may take the place of written or spoken words, in offer, in acceptance, or in both. A contract so made is sometimes called a tacit contract; the intention of the parties is a matter of inference from their conduct, and the inference is more or less easily drawn according to the circumstances of the case.” For my part, I see no reason why an appropriate agreement excluding the presumption could not be inferred from the conduct of the parties if the circumstances of the case justify such an inference, and it is, I think, something of that kind which Dicey must have contemplated when he used the somewhat wide phrase “in the absence of reason to the contrary.”

There is one point which I must consider which I do not remember meeting before, and on which no authority has been cited to me, and which is very material in this case. Mr. Wilberforce has submitted that in deciding whether or not an agreement is to be inferred from conduct, the only conduct which can be considered is conduct earlier than or contemporaneous with the date on which the alleged contract was made. I see no reason for such a limitation, which I should have thought would put the court into blinkers and preclude it from doing palpable justice in some cases. I will give an example, though perhaps a fanciful one. Supposing that it might be relevant to determine whether there was to be inferred from the conduct of two parties an intention to make a voyage to South Africa, and supposing that the evidence before the date of the journey was that they had consulted tourist offices, obtained particulars of fares, possibly even booked some accommodation, had written to friends and said that they were coming, and supposing that it was quite uncertain at that date whether there was any reason to go to South Africa other than what was to be inferred. Then when the departure comes, they go to New Zealand. It would be ridiculous to exclude from the circumstances from which the inference had to be drawn the circumstance that in the end, at any rate, they went to New Zealand. That is perhaps an extreme case. But I certainly take the view that if it is a question of inferring something from conduct, the court must look at the conduct as a whole and not stop its investigation at any particular date. That approach, as I think, gets rid of all the difficulties.

I would, first of all, like to consider — though it is obiter in this case — the case where the parties agreed before the marriage to change their domicile immediately. I can well conceive that in certain circumstances that mere fact might be enough to lead [*605] the court to infer that the parties intended their proprietary rights to be regulated by the law of the new domicile from the moment of their marriage. Take, for example, the case of two comparatively poor persons, one, the woman, having a few National Savings Certificates, and the man being a weekly wage earner. They both decide to emigrate to Australia. I can well believe that the court might think that that was enough in those circumstances to lead to the inference that they intended their proprietary rights (which at that stage were nugatory, but which might thereafter become of great value), to be regulated from the beginning of their married life by the law of Australia. I can well believe that the court might in those circumstances draw some such inference. However, take the case of an elderly widower who was a director of half a dozen companies in England and held shares and debentures and exchequer bonds and various things in England. He marries a young wife, and being ill and in need of a warm climate, agrees to leave immediately to take up his home in South Africa. I cannot imagine that any court would ever draw the inference from the mere fact that they had decided immediately to leave for South Africa to make it their permanent home, and did so, that he intended that all his proprietary rights should, as from the date of their marriage, be governed by the law of South Africa. I have only given those illustrations to show that what inference the court might or might not draw from the circumstances of an immediate change of domicile would depend on all the circumstances of the case. There does not seem to me to be any particular difficulty. Indeed, I think that I am, roughly speaking, adopting the solution which Dr. Morris has suggested, though in place of the somewhat vague phrase “reason to the contrary” I should prefer to put it that an inference was to be drawn from all the circumstances of the case that the law of the new domicile was intended to apply as from the date of the marriage.

But I am not really concerned with that case, because the evidence of the first defendant is “We would settle in France as soon as possible.” That very phrase, in my view, connotes that circumstances might not make it possible to settle there immediately, and indeed there were circumstances which did stand in the way of an immediate departure. There were certain circumstances connected with the testator’s release from the army, and there may have been — though there is no evidence of that — financial and business reasons. The evidence is singularly meagre in this case. I think that the difficulties of inferring [*606] anything of that sort are very much greater because, if it is once conceded that the parties contemplated that a period of time is to elapse before they change their domicile, it is most improbable that they intend the new law, or rather, the law of the new domicile, to apply before they actually change their domicile. If, therefore, any inference of this nature is to be drawn, a dichotomy of property rights appears to result, so that they would have some property subject to the law of the matrimonial domicile, that is to say, the husband’s domicile at the time of the marriage, and some property subject to the law of the State in which they had a newly acquired domicile. Such an agreement could be made — I see no juristic difficulty — but it seems to me to be an improbable arrangement and, therefore, strong evidence would be required to justify any such inference merely from conduct and without any express agreement, written or oral.

In the present case there is no evidence of any intention to substitute the new law, that is to say, the law of the changed domicile, for the law of England. All the matters on which Mr. Wilberforce relies are equivocal and could not possibly be said to be evidence which would justify any such inference. I have deliberately said that, because, even if I am wrong in thinking that I am entitled to have regard to the declarations in the three documents to which I have referred, I should still hold that there was not enough evidence to justify the inference which Mr. Wilberforce asks me to make. But if, as I think, I am entitled to look at those documents, then there is strong evidence that no agreement between these parties is to be inferred from their conduct that the law of France was to apply as soon as they took up their residence in France. I myself should have thought that if any kind of change of that sort was in contemplation the testator would, at some stage, have been bound to have discussed it with the first defendant, and her evidence is that he never did. In my opinion, in the circumstances of this case, it would be quite fantastic to infer from what is merely the change of domicile that it was arranged at the time of the marriage, tacitly or by conduct, that French law should apply to their property rights as soon as they settled in France, and I decline to draw any such inference.

If that be the right basis in law, that is, of course, the end of the matter. If, however, Professor Cheshire’s view is to be adopted, then I think that Mr. Wilberforce would succeed, but I can find no foundation in the authorities for Professor [*607] Cheshire’s view. In my judgment, it is reasonably plain that there is a presumption that the law of the husband’s domicile applies to a marriage, and that the presumption can be rebutted. It can certainly be rebutted by express contract, and, in my judgment, it could also be rebutted by what is loosely called a tacit contract, if the circumstances warrant the inference of such a tacit contract. Therefore, in substance, I adhere to the view expressed by Dr. Morris. The widow, the first defendant, is not entitled to have the estate administered under the régime of community of property in accordance with French law.

Declaration accordingly.