COUNSEL: Sir Edward Clarke, K.C., and Bayford, for the appellant.

Middleton, for the petitioner, the respondent on the appeal.

 

SOLICITORS: F. Evelyn Jones; Chester, Broome & Griffiths, for Crofton, Craven & Worthington, Manchester.

 

JUDGES: Cozens-Hardy M.R., Sir Gorell Barnes, President, and Kennedy L.J.

 

DATES: 1907 July 26, 27; Oct. 14; Nov. 18.

 

 

Nullity of Marriage – Bigamy – Marriage in England between Englishwoman and Domiciled Frenchman – Irregularity by French Law – Decree of Nullity by French Court on Grounds unknown to English Law – Conflict of Laws – Lex loci contractus – Jurisdiction.

 

In September, 1898, a ceremony of marriage in English form was celebrated in England between a domiciled Englishwoman and P., a domiciled Frenchman. By a decree of the French Court in November, 1901, this marriage was annulled, on the ground that the consent of the parent, as required by French law, had not been obtained. P. subsequently married a Frenchwoman in France. In July, 1903, the Englishwoman instituted a suit in England for the dissolution of her marriage with P. on the ground of his adultery and desertion. This suit was dismissed for want of jurisdiction. In October, 1904, the Englishwoman went through a ceremony of marriage in England with O., a domiciled Englishman, describing herself as a widow:-

 

Held (following Simonin v. Mallac, (1860) 2 Sw. & Tr. 67, and Sottomayor v. De Barros, (1879) 5 P. D. 94), that the lex loci contractus must prevail, and that this later marriage was bigamous and must be annulled at the suit of O.

 

Decision of Bargrave Deane J., [1907] P. 107, affirmed.

 

Quaere whether, in circumstances like the present, the Court ought not to have assumed jurisdiction in the wife’s suit for the dissolution of her first marriage by treating her as having a domicil in her own cou7ntry sufficient to support a suit of this kind.

 

APPEAL from a decision of Bargrave Deane J. (1)

 

The question raised by this appeal was the effect of a decree of nullity of marriage by a French Court on a marriage solemnized in England between a domiciled Englishwoman and a domiciled Frenchman temporarily residing in England.

 

The facts as stated by Sir Gorell Barnes in the judgment of the Court of Appeal were as follows: The appellant, an Englishwoman who was domiciled in England, and whose maiden name was Sarah Helen Williams, on September 14, 1898, went through the ceremony of marriage at the registry office at Prestwich, in the county of Lancaster, with one Léon Philip, who was a French

 

(1) [1907] P. 107. [*47]

 

subject having a French domicil. At the time of the said ceremony he was temporarily resident in England in order to study English commerce and learn the English language. The ceremony took place without the knowledge either of his parents or of her parents. According to the marriage certificate, the appellant’s age appears to have been twenty-five, and Philip’s age was stated to have been twenty-two years, but as a matter of fact he was only nineteen. For a short time after the marriage the parties cohabited in England, and then it appears that the marriage became known to the appellant’s father, who communicated with Léon Philip’s father in France. In the result Philip’s father came over to this country and took his son to France, where he has ever since remained.

 

The appellant became pregnant, by Léon Philip, of a child, which was born on July 7, 1899. Afterwards Léon Philip’s father instituted proceedings in France to have the marriage annulled in accordance with certain provisions of the French Civil Code, to which it will be necessary to refer hereafter.

 

It is to be gathered from the decree of the French Court that the appellant made a claim that the marriage should take civil effect, and for alimony, and also for an allowance for the support of the child.

 

On November 5, 1901, a decree was pronounced in the proceedings at the Civil Tribunal of First Instance of the Seine, which recorded as to Léon Philip that, having come of age, he appeared personally in the proceedings, and, dealing with M. Philip, senior’s, application to annul the marriage, the decree, after reciting that Léon Philip contracted the marriage in England at the age of nineteen years with Sarah Helen Williams, aged twenty-five years, on September 14, 1898, and that he could not by reason of his age marry without the consent of his father, his only surviving parent, and that he did not ask such consent; that, on the other hand, the said marriage was not preceded by any publication in France; that it is certain that such omission was intentional on the part of Léon Philip and Sarah Helen Williams, and with the object of eluding the requirements of French law so as to avoid the intended union being known to M. Philip, senior, and that the said marriage [*48] was therefore null according to articles 148 and 170 of the Code Civil, and that there was nothing to shew that it was afterwards ratified, either explicitly or implicitly, by M. Philip, senior; that the application to annul the marriage was admissible, seeing that Léon Philip declared that he abided by the order of the Court, and after reciting the application of the respondent, pronounced the annulment of the marriage of Léon Philip and the appellant with all its legal consequences, and declared the appellant’s claim untenable, saving as concerned the custody of the infant, and nonsuited her as to the same, but gave her the custody of the infant and ordered Léon Philip to pay a maintenance of 50 francs a month for the child’s support.

 

Although the appellant took the part mentioned in the decree in the French proceedings through her solicitors, she appears never to have been in France, and not to have been called as a witness in those proceedings.

 

After the decree Léon Philip married again in France, and thereupon the appellant, on July 21, 1903, instituted a suit in the Probate, Divorce and Admiralty Division of the High Court of Justice against Léon Philip for a dissolution of her alleged marriage with him on the ground of desertion and adultery. Her petition also asked for a declaration that her marriage was annulled. This case came on as an undefended case before Lord St. Helier (then Sir Francis Jeune) on July 5, 1904, and that learned judge dismissed the petition on the ground of want of jurisdiction. He appears to have held that, so far as the claim for divorce was concerned, he had no jurisdiction on the ground that the respondent to that suit was not domiciled in England; and, with regard to the claim for a declaration that the said marriage was annulled, it does not appear that any evidence was gone into as to the French law, nor as to the question of the validity of the marriage in England, and there seems to have been no decision whatever on the question of the validity of the marriage. It may be doubted whether the decision that the Court had no jurisdiction to entertain the claim for divorce was right, and the reason for this will be found stated towards the end of the present judgment.

 

On October 29, 1904, the appellant went through the ceremony [*49] of marriage with the present petitioner, William Henry Ogden, at a parish church in Lancashire, describing herself as a widow. She lived with Ogden for a time, and had a child by him. Later, on July 28, 1906, Ogden instituted the present suit against the appellant to obtain a decree of nullity of marriage on the ground that at the time of the ceremony of marriage between him and the appellant the said Léon Philip was alive, and that the marriage of the appellant and Léon Philip had not been annulled or dissolved for any cause competent to the law of England. There was upon the evidence in the case a dispute between Ogden and the appellant as to how much he knew, or was told, at the time he went through the ceremony of marriage with her, she asserting that she told him the whole of the facts which had occurred in relation to Léon Philip, and Ogden disputing this.

 

The appellant by her answer denied that she was lawfully married to Léon Philip, and pleaded that her marriage with him was declared null by the aforesaid decree. There was no dispute that at the time of the ceremony which took place between Ogden and the appellant Léon Philip was still alive, but according to her evidence she did not know the real age of Léon Philip at the time of the ceremony with him, and it did not appear that she had any knowledge of French law; and, as the facts appeared to the Court of Appeal, it must be taken that she had no such knowledge, and did not in fact intend to elude the requirements of that law.

 

The present case was heard before Bargrave Deane J., and on December 10, 1906, he pronounced a decree nisi, declaring the marriage between the petitioner and the appellant null and void on the ground that the appellant had a husband living at the time of her marriage with the petitioner. Bargrave Deane J. followed the cases of Simonin v. Mallac (1), and the decision of Lord Hannen in the case of Sottomayor v. De Barros. (2) From this decision the present appeal was brought.

 

The following articles from the French Civil Code were referred to in the course of the arguments and judgment:–

 

144. A man before the age of eighteen, and a woman before fifteen complete, are incapable of contracting marriage.

 

(1) 2 Sw. & Tr. 67.

 

(2) 5 P. D. 94. [*50]

 

148. The son who has not attained the full age of twenty-five years, the daughter who has not attained the full age of twenty-one years, cannot contract marriage without the consent of their father and mother; in case of disagreement, the consent of the father is sufficient.

 

149. If one of the two be dead, or disabled from manifesting his or her will, the consent of the other is sufficient.

 

150. If the father and mother are dead, or if they are disabled from manifesting their will (1), the grandfathers and grandmothers shall supply their place. If there be a disagreement between the grandfather and grandmother of the same line, the consent of the grandfather shall suffice; if the disagreement be between the two lines, this division shall have the effect of consent.

 

151. Where the children of a family have attained the majority fixed by article 148, they are required previously to contracting marriage to demand, by a respectful and formal act, the advice of their father and mother, or that of their grandfathers and grandmothers when their father and mother are dead, or disabled from manifesting their will.

 

152. From the majority fixed by article 148 to the age of thirty years completed for sons, and until the age of twenty-five years completed for daughters, the respectful act required by the preceding article, and on which consent to marriage shall not have been obtained, shall be twice more renewed from month to month; and one month after the third act it shall be lawful to proceed with the celebration of the marriage.

 

153. After the age of thirty years, it shall be lawful, in default of consent given upon a respectful act, to proceed, after the expiration of a month, with the celebration of the marriage.

 

Articles 165 to 169 contain provisions relating to the publications directed by article 63.

 

170. A marriage contracted in a foreign country between natives of France and between a native of France and a foreigner

 

(1) Fr. “dans l’impossibilité de manifester leur volonté.” As to the form of the “acte respectueux,” see article 154 (modified in 1907). In article 183 the masculine “époux” is understood to include the feminine. A few verbal amendments have been made in the translation. – F. P. [*51] shall be valid if celebrated according to the forms used in that country, provided that it has been preceded by the publications prescribed in article 63, under the title “Of acts of the civil power,” and that the frenchman has not infringed the regulations contained in the preceding chapter.

 

182. A marriage contracted without the consent of the father and mother, of the ancestors, or of the family council, in cases where such consent was necessary, can be impeached only by those whose consent was requisite, or by such of the two married persons as stood in need of that consent.

 

183. A suit for nullity is no longer maintainable either by the married persons, or by the relations whose consent was required, in those cases where the marriage has been approved, either expressly or tacitly, by those whose consent was necessary; or when a year has elapsed without complaint on their part, subsequently to their knowledge of the marriage. Such suit is no longer maintainable by a spouse after the lapse of a year without complaint on his part subsequently to his having attained the competent age for consenting to the marriage in his own person.

 

185. Nevertheless a marriage contracted by parties who have not yet reached the required age, or of whom one has not attained that age, is no longer liable to be impeached, first, where six months have expired since the married person or persons have attained the competent age; secondly, where the woman not having reached that age has conceived before the expiration of six months.

 

201. A marriage which has been declared null is attended, nevertheless, by civil consequences, as well with regard to the married parties as to their children, where the marriage has been contracted in good faith.

 

202. Where good faith exists only on the part of one of the married persons, the marriage is only attended by civil consequences in favour of that person, and the children of the marriage.

 

The appeal was heard on July 26 and 27 and October 14.

 

Sir Edward Clarke, K.C., and Bayford, for the appellant. A marriage celebrated according to the forms required by the local [*52] law is valid universally unless one or both of the parties is or are by the law of his, her, or their domicil incapable of contracting such marriage. It follows that a marriage celebrated in England according to the forms of that country is only valid if such party thereto is by the law of his or her domicil capable of celebrating such marriage.

 

[SIR GORELL BARNES, PRESIDENT. The language of your proposition is ambiguous. Here the man was merely incapable according to the law of his own country until he got his parents’ consent. The want of consent is not incapacity; it is want of compliance with a formality.]

 

It is submitted that under article 148 of the French Civil Code the man was under a personal incapacity to marry without that consent. In Scrimshire v. Scrimshire (1) stress is laid upon the importance of a marriage being held good or bad everywhere, and that decision is recognized in Harford v. Morris. (2) Assuming that article 148 goes to the question of capacity, Brook v. Brook (3) is in point. There a marriage contracted abroad by domiciled English subjects was held to be void because the man was marrying his deceased wife’s sister.

 

[SIR GORELL BARNES, PRESIDENT. That is an exception based on prohibited degrees.]

 

Bargrave Deane J. proceeded upon Simonin v. Mallac (4); but that case is distinguishable from the present, because there both the parties had attained the majority fixed by article 148, and the only objection to the marriage was that they had omitted to ask the consent of their relations, as required by article 151, although if they had observed the formalities required by that article they could ultimately marry without such consent: article 152; and this distinction was pointed out by Cresswell J. in that case. Therefore in that case there was no such incapacity as there is here. In Sottomayor v. De Barros (5) it was originally assumed that both parties were domiciled Portuguese, and that the marriage, which was celebrated in England, was within the prohibited

 

(1) (1752) 2 Hagg. Cons. 395, 416.

 

(2) (1776) 2 Hagg. Cons. 423, 431.

 

(3) (1861) 9 H. L. C. 193.

 

(4) 2 Sw. & Tr. 67.

 

(5) (1877) 2 P. D. 81; 3 P. D. 1; (1879) 5 P. D. 94. [*53]

 

degrees according to the law of Portugal, though not according to the law of England. On that assumption the case was tried before Sir R. Phillimore, who felt himself bound by Simonin v. Mallac (1) to hold that the Court of the place where the marriage was celebrated was not bound to recognize the incapacities affixed by the law of the domicil on the parties, and he accordingly declared the marriage valid; but his decision was reversed by the Court of Appeal, who set aside the marriage, and distinguished Simonin v. Mallac (1) on the ground that the question there was one of form, and not of capacity. The case came on again before Lord Hannen, after it had been proved that the husband at the date of his marriage was domiciled in England, and that learned judge held that the marriage was valid. It is submitted that that decision violated the principles of the previous judgment of the Court of Appeal in the same case and was wrong, and that the point was really the same as in Mette v. Mette (2), where the decision was the other way. In the judgment of the Court of Appeal in Sottomayor v. De Barros (3) it is treated as a settled principle of law that the question of personal capacity to enter into any contract is to be decided by the law of domicil. That principle applies here. Simonin v. Mallac (1) is really inconsistent with it. That case was reluctantly followed by Sir R. Phillimore, who was reversed on appeal, and was again followed by Farwell J. in Hay v. Northcote (4); but it has never been followed by the Court of Appeal, and, unless distinguishable from the present case, it is submitted that it is wrong and ought to be overruled. Scott v. Attorney-General (5) and Warter v. Warter (6) are also inconsistent with Simonin v. Mallac. (1)

 

[KENNEDY L.J. It is noticeable that the character of the incapacity in this case is such as to render the marriage voidable only, and not void: article 182. It is not like an incestuous alliance.]

 

Assuming that this marriage was valid by the English law, upon that marriage the wife acquired her husband’s domicil,

 

(1) 2 Sw. & Tr. 67.

 

(2) (1859) 1 Sw. & Tr. 416, 423.

 

(3) 3 P. D. 1, 5.

 

(4) [1900] 2 Ch. 262.

 

(5) (1886) 11 P. D. 128.

 

(6) (1890) 15 P. D. 152. [*54]

 

and the marriage has now been declared null and void by a decree of the French Court. The French Court has jurisdiction to make that decree, and the wife appeared and submitted to the decision. That was a judgment in rem, and is valid universally: Harvey v. Farnie (1); Niboyet v. Niboyet (2); Bater v. Bater (3); Pemberton v. Hughes (4); Sinclair v. Sinclair.(5) The French Court must be considered quite as competent with regard to nullity as divorce; and the judgment of a competent Court must be recognized in this Court. The status of a person must be decided by the Court of his or her domicil.

 

[SIR GORELL BARNES, PRESIDENT. In a nullity case like this the decree is only a declaration of the status of the parties in France.]

 

It was a decision on the ground of incompetence under French law, binding on all parties and on all Courts in all countries. Where the Court of the husband’s domicil has pronounced on the status of the parties, that decree is recognized as binding in this country: Armitage v. Attorney-General. (6) In Simonin v. Mallac (7) the question of the effect of the French decree was not considered, and the question of domicil was not dealt with. For present purposes there is no distinction between a sentence of nullity and a decree for divorce; each affects the status of the person, and status is properly dealt with by the Court of the domicil.

 

Middleton, for the petitioner, the respondent on the appeal. The lex loci contractus, viz., England, determines the validity of the first marriage, and that law is to prevail by which the parties intended to be bound, i.e., the lex loci. There is no reason shewn in the cases on domicil which have been cited for setting this contract aside. The “res” was never in the jurisdiction of the French Courts, and therefore the decree cannot be a declaration or judgment in “rem.” Regard will not be had to the opinion of a foreign Court on an English marriage ceremony: Sinclair v. Sinclair. (5) That the law of the place where

 

(1) (1882) 8 App. Cas. 43.

 

(2) (1878) 4 P. D. 1.

 

(3) [1906] P. 209.

 

(4) [1899] 1 Ch. 781.

 

(5) (1798) 1 Hagg. Cons. 294.

 

(6) [1906] P. 135.

 

(7) 2 Sw. & Tr. 67. [*55]

 

the contract is made is to prevail is clear from a long chain of authorities, and this is recognized in Scrimshire v. Scrimshire (1), Harford v. Morris (2), and Middleton v. Janverin.(3) In nullity cases domicil is not the test: Linke v. Van Aerde (4) and Roberts v. Brennan (5), which shews that Niboyet v. Niboyet (6) still applies to nullity cases. Simonin v. Mallac (7) and Sottomayor v. De Barros (8) cover this case, and are in favour of the petitioner. The respect shewn to the lex loci contractus is also shewn in Dalrymple v. Dalrymple (9) and Kent v. Burgess.(10) That the consent of the parents of Léon Philip was not essential seems clear from Sottomayor v. De Barros. (8) The lex loci is the governing rule in deciding upon the validity or invalidity of all personal contracts: Warrender v. Warrender. (11) The intention of the parties when entering into the contract must be looked at in order to arrive at the law by which the contract must be construed: Hamlyn & Co. v. Talisker Distillery. (12)

 

The cases relied on for the appellant are all distinguishable; in none of them was the validity of the marriage disputed. Those cases merely shew that this Court recognizes the authority of a foreign Court to dissolve an English marriage for some cause which has accrued since the marriage, when also the domicil of the parties has been changed since the marriage.

 

Sir Edward Clarke, K.C., in reply. If the marriage was not a nullity from the first, why should the French Court make any declaration of its nullity, as was done in Andrews v. Ross? (13) In that case their judgment altered the status of the parties, just as much as a decree for divorce does.

 

The provisions in the French Civil Code against marriage without consent impose a personal incapacity to contract, and the marriage was invalid because Léon Philip was incapable of

 

(1) 2 Hagg. Cons. 395, at p. 412.

 

(2) 2 Hagg. Cons. 423.

 

(3) (1802) 2 Hagg. Cons. 437.

 

(4) (1894) 10 Times L. R. 426.

 

(5) [1902] P. 143.

 

(6) 4 P. D. 1.

 

(7) 2 Sw. & Tr. 67.

 

(8) 5 P. D. 94.

 

(9) (1811) 2 Hagg. Cons. 54.

 

(10) (1840) 11 Sim. 361.

 

(11) (1835) 2 Cl. & F. 488, at p. 529.

 

(12) [1894] A. C. 202.

 

(13) (1888) 14 P. D. 15. [*56]

 

entering into the marriage contract. Capacity to contract must be tested by the law of the domicil; and the Court of the domicil has decided that this marriage was null and void for all purpose’s everywhere, and that decree is binding on this Court and all other civilized Courts.

 

Cur. adv. vult.

 

Nov. 18. The judgment of the Court (Cozens-Hardy M.R., Sir Gorell Barnes, President, and Kennedy L.J.) was delivered by

 

SIR GORELL BARNES, PRESIDENT. This is an appeal in a case of considerable importance and interest, more especially to persons in this country who have entered into, or contemplate entering into, matrimonial relations with foreigners. The facts which give rise to the question are these. [Having stated the facts as above set out, his Lordship continued:-] The case was very fully and ably argued by counsel on behalf of the respective parties, and two points were made for the appellant by her counsel, Sir Edward Clarke; the first, that her marriage with Léon Philip was not valid, inasmuch as, although the marriage was celebrated according to the forms required by the law of England, it was invalid both in this country and in France, because Léon Philip was, by the law of France, being the law of his country and his domicil, incapable of contracting the marriage; the second, that the effect of the French decree was to annul the marriage, both in France and in this country. If both or either of these points were established in favour of the appellant, the contention on her part which followed as a matter of course was that at the time of the ceremony of marriage between herself and Mr. Ogden she was free to contract a marriage with him, and that, therefore, her marriage with him was valid, and his petition should be dismissed.

 

Evidence was given at the trial of the French law upon which the appellant relied. The French Civil Code was put in, and various sections of that Code were referred to on the argument of this appeal, to some of which it is necessary to draw attention. By article 1, s. 3, the laws relating to the condition and privileges of persons govern Frenchmen although residing in a foreign [*57] country. By Title II., s. 63, two publications with an interval of eight days between them have to be made, containing particulars of the proposed marriage. Title V. contains (inter alia) provisions which, translated into English, are as follows. [Having read the articles from the French Civil Code set out above, his Lordship proceeded:–] It would seem from these provisions that a marriage without the necessary consent or publication is not made by the Code void from the outset, but will only be declared void if proceedings for that purpose are taken by the proper parties in proper time, and will be valid unless the declaration is made.

 

These being the facts and the points raised, counsel for the appellant endeavoured to support his first point by urging before the Court certain propositions which were wider than that which it is necessary to consider for the purpose of determining the present case. It is not necessary in this case to consider what are the principles which ought to govern a decision in England upon the question of the validity in this country of a marriage celebrated therein between two foreigners domiciled abroad and incapable by the law of their domicil of marrying each other at all. It is not even necessary for the decision of this case to consider what has been or ought to be decided as to the validity of a marriage entered into in England between two foreigners domiciled abroad where they have come to this country in order to avoid a difficulty with regard to formalities which are required by the law of their domicil for the celebration of a valid marriage in their own country.

 

The simple question for determination in the present case upon the first point is whether or not a marriage taking place in England between an English person domiciled in England with a foreigner temporarily residing in this country, which it was not disputed would be held in England to be a valid marriage if celebrated between two inhabitants of this country, ought to be held invalid on the ground that the foreigner was by the statute law of his country subjected to the necessity of complying with certain formalities in order to be at liberty to enter into the marriage. It is desirable to state this limited proposition very clearly, because, with regard to questions which may be raised [*58] as to the validity of marriages in England between persons domiciled abroad, certain cases have been decided (to which reference will be made further on in this judgment) which do not necessarily involve the consideration of the particular point already indicated, or any decision thereupon; and it is desirable, therefore, to avoid the confusion which appears to have arisen sometimes between the consideration of the principles which have been laid down for determining the validity of a marriage where the ceremony alone was in question, and of those which have been considered, in determining whether it was lawful for the parties to intermarry at all.

 

Now, the argument for the appellant in the present case was that, although the marriage between her and Léon Philip was celebrated according to the forms required by the English law, it was invalid universally because Léon Philip was a minor in France, and under a disability by the law of France from contracting such marriage without the consent of his father, and without complying with the other formalities required by the law of France. In substance this contention amounted to this – that in regard to entering into a marriage in England with an inhabitant thereof, Léon Philip carried with him into this country an incapacity, which ought to be recognized by the law of England, to enter into matrimonial relationship with such inhabitant without complying with the provisions of the French Code. It was urged that this principle had been recognized in this country, and cases were cited which it was said supported the contention. The cases cited, however, do not support it, and in truth the argument on behalf of the appellant appears to be based upon views which have been expressed by foreign jurists, but which have not been adopted in this country, where the English Courts have not been very ready to admit a personal law of status and capacity dependent on domicil, and travelling with the person from country to country, although there has been, perhaps, less unwillingness in later years to give effect to the lex domicilii to some extent: see, for instance, In re Goodman’s Trusts. (1)

 

It may be doubted whether there is much substantial difference

 

(1) (1881) 17 Ch. D. 266. [*59]

 

of opinion between foreign and English jurists as to the general rule that between persons sui juris the validity of the marriage is to be decided by the law of the place where it is celebrated. There are certain exceptions, as, for instance, when the lex loci celebrationis violates the precepts of religion, or of public morals, as in the case of bigamy, or where the marriages are such as are generally recognized as incestuous. When, however, the competency of the parties to contract marriage is considered, there appears to be a diversity of opinion, not merely between foreign jurists and English jurists, but amongst the foreign jurists themselves, certain foreign jurists, but not all, maintaining that a person who is in his minority by the law of his native or acquired domicil is to be deemed everywhere in the same state or condition. This appears to be based upon the conception that the laws which have for their object the regulation of the capacity of persons are to be treated as personal laws and of absolute obligation everywhere when they have once attached upon the person by the law of his domicil. This conception would appear to result from the application of principles derived from sources of law different from those from which the English common law has been derived, and from considerations which have not had the same force in this country as abroad. Story J., however, notices that many exceptions are admitted to exist as to the operation of personal laws, and that the practice of nations by no means justifies the doctrine in the extent to which it is ordinarily laid down by many foreign jurists. (1) That learned writer discusses this question at great length in the work to which reference has been made, and makes the following general observations in s. 76 on the inconvenience of allowing the law of the domicil to govern contracts made in other countries. He says: “How are the inhabitants of any country to ascertain the condition of a stranger dwelling among them as fixed by the law of a foreign country where he was born or had acquired a new domicil? Even Courts of justice do not assume to know what the laws of a foreign country are; but require them to be proved. How, then, shall private persons be presumed to have better means of knowledge? On the other hand, it may be said, with

 

(1) Story on the Conflict of Laws, s. 54. [*60]

 

great force, that contracts ought to be governed by the law of the country where they are made, as to the competence of the parties to make them, and as to their validity; because the parties may well be presumed to contract with reference to the laws of the place where the contract is made and is to be executed. Such a rule has certainty and simplicity in its application. It ought not, therefore, to be matter of surprise if the country of the parties’ birth should hold such a contract valid, or void, according to its own law, and that nevertheless, the country where it is made and to be executed should hold it valid or void, according to its own law. It has been well observed by an eminent judge that ‘with respect to any ignorance arising from foreign birth and education, it is an indispensable rule of law, as exercised in all civilized countries, that a man who contracts in a country engages for a competent knowledge of the law of contracts of that country. If he rashly presumes to contract without such knowledge, he must take the inconveniences resulting from such ignorance upon himself, and not attempt to throw them upon the other party who has engaged under a proper knowledge and sense of the obligation which the law would impose upon him by virtue of that engagement.’” And again, in s. 75, he quotes from a judgment of Porter J. in the case of Saul v. His Creditors (1) as follows: “Suppose, as is the truth, that our law placed the age of majority at twenty-one; that twenty-five was the period at which a man ceased to be a minor in the country where he resided, and that at the age of twenty-four he came into this State, and entered into contracts, would it be permitted that he should, in our Courts and to the demand of one of our citizens, plead as a protection against his engagements the laws of a foreign country, of which the people of Louisiana had no knowledge? And would we tell them that ignorance of foreign laws in relation to a contract made here was to prevent them from enforcing it, though the agreement was binding by those of their own State? Most assuredly we would not.” And again, in s. 90, he observes: “The difficulty of applying any other rule as to the capacity and incapacity of the person, in respect to the class of nuptial contracts, will become still more clear by attending to the great

 

(1) (1827) 5 Martin, N. S. (La.), 569, at pp. 596-8. [*61]

 

extent of the parental power recognized by the Continental nations of Europe, and derived by them from the civil law. Parental restraint upon the marriage of minors exists to a very great extent in Germany, Holland, France, and other civil law countries; to so great an extent indeed that the marriage of minors without the consent of their parents, or at least of their father, is absolutely void “(sed quaere, should not the learned author have said voidable; see observations above), “and the disability of minority is in these countries carried to a much greater age than it is by the common law. In some of these countries majority is not attained until thirty, and until a very recent period, even in France, the age of majority of males was fixed at twenty-five and of females at twenty-one. It is now fixed at twenty-one in all other cases except for the purpose of contracting marriage, and a marriage cannot even now be contracted in France by a man until twenty-five years of age, and by a woman until twenty-one, without the consent of their parents, or at least of their fathers, if the parents differ in opinion. Yet France has ventured upon the bold doctrine that the marriages of Frenchmen in foreign countries shall not be deemed valid if the parties are not by its own law competent to contract by reason of their being under the parental power. There can be little doubt that foreign countries where such marriages are celebrated will follow their own law and disregard that of France.”

 

It would needlessly lengthen this judgment to set out the passages from foreign jurists bearing upon this subject, and it is not necessary to examine at length those cases or those passages in the above-mentioned work or other commentaries which deal with cases in which a marriage is entirely prohibited by the laws of the domicil of both or either of the parties, and yet is permitted by the laws of the place of celebration, for we are concerned in this case only with the question of a disability imposed by foreign law upon one of the parties to the marriage in respect only of want of parental consent, and compliance with certain formalities required by such foreign law.

 

There appears to be no case in this country (certainly no case was cited to us in argument on this appeal) in which in such a case as last mentioned the view has been expressed that such a [*62] marriage would be held invalid in this country. We know of no principle recognized by English law which would justify the Court in coming to the conclusion that such a marriage ought to be held invalid; for, although to a certain extent the lex domicilii is recognized in this country, for instance, in the familiar case where it is held that mobilia sequuntur personam, yet such recognition appears never to have been extended to the case of a matrimonial engagement entered into in this country between an inhabitant of another country and an inhabitant of this country. In such a case, where there are two different systems of law, one may well ask, which is to prevail? Why should it be recognized that a person who comes over to this country and validly enters into a marriage with one of its inhabitants according to English law should be held unable to do so here because of the regulations of a foreign system of jurisprudence which places upon him a personal incapacity to contract unless he complies with formalities required by the foreign law? It may be observed here that the 3rd section of article 1 of the French Civil Code ordains that the French laws relating to the conditions and privileges of persons are to govern Frenchmen although residing in a foreign country, so that it would seem from this provision that the French rule as to competency by reason of minority is not based upon domicil, but upon nationality, and therefore that even in the case of a Frenchman domiciled in England celebrating a marriage with a domiciled Englishwoman the French Courts would be at liberty, if the question arose before them, to declare such a marriage null and void, on the ground that it was governed by the laws of France, although celebrated in this country; but it could hardly be contended in England, if both persons parties to a marriage were domiciled in this country, that our Courts ought to hold such a marriage invalid because one of the parties by the laws of his or her nationality may not have adequate competency to enter into the contract.

 

It is necessary now to refer to some of the cases which were cited in the course of the argument, though none of them when examined can be considered to support the contention of the appellant upon the first question, but before doing so it should be observed that the Court has, in a suit for nullity, by s. 22 of [*63] the Matrimonial Causes Act, 1857, to “proceed and act and give relief on principles and rules which in the opinion of the said Court shall be as nearly as may be conformable to the principles and rules on which the Ecclesiastical Courts have heretofore acted and given relief.” Upon the question, however, of validity of marriage under consideration there is no reason for supposing that there was any difference between the principles and rules applicable to the question in the ecclesiastical Courts and in the Courts of common law.

 

The first case to refer to is Herbert v. Herbert (1), where Lord Stowell in his judgment said: “It being an established principle that every marriage must be tried according to the law of the country in which it took place; this is according to the jus gentium: whatever the regulations may be, according to which the marriage has been had, if they are what the canonical law of the foreign country supports, the canonical law of this country must enforce it.” The language of this judgment as reported in 2 Hagg. Cons. at p. 271 is not quite the same, but is substantially to the same effect.

 

The case of Scrimshire v. Scrimshire (2) appears to have been heard in 1752, but is reported from a manuscript note of Sir Edward Simpson communicated by Dr. Swabey. The question raised in it was as to the validity of marriages of British subjects contracted abroad. Sir William Wynne, in Middleton v. Janverin (3), states that he remembered to have heard that the judgment was founded on great deliberation, and that Lord Hardwicke L.C. was consulted on it. In the course of that judgment Sir Edward Simpson said: “From the doctrine laid down in our books – the practice of nations and the mischief and confusion that would arise to the subjects of every country from a contrary doctrine, I may infer that it is the consent of all nations, that it is the jus gentium, that the solemnities of the different nations with respect to marriages should be observed, and that contracts of this kind are to be determined by the laws of the country where they are made. If that principle is not to govern such cases, what is to be the rule where one party is

 

(1) (1819) 3 Phill. 58, at p. 63.

 

(2) 2 Hagg. Cons. 395, 416.

 

(3) 2 Hagg. Cons. 437, at p. 446. [*64]

 

domiciled and the other not? The jus gentium is the law of every country, and is obligatory on the subjects of every country. Every country takes notice of it; and this Court, observing that law in determining upon this case, cannot be said to determine English rights by the laws of France but by the law of England, of which the jus gentium is part. All nations allow marriage contracts, they are juris gentium, and the subjects of all nations are equally concerned in them; and from the infinite mischief and confusion that must necessarily arise to the subjects of all nations with respect to legitimacy, successions, and other rights, if the respective laws of different countries were only to be observed, as to marriages contracted by the subjects of those countries abroad, all nations have consented, or must be presumed to consent, for the common benefit and advantage, that such marriages should be good or not, according to the laws of the country where they are made. It is of equal consequence to all that one rule in these cases should be observed by all countries, that is, the law where the contract is made. By observing this law, no inconvenience can arise; but infinite mischief will ensue if it is not.” And further on: “Suppose two French subjects, not domiciled here, should clandestinely marry, and there should be a sentence for the marriage, undoubtedly the wife, though French, would be entitled to all the rights of a wife by our law. But if no faith should be given to that sentence in France, and the marriage should be declared null because the man was not domiciled, he might take a second wife in France, and that wife would be entitled to legal rights there, and the children would be bastards in one country and legitimate in the other. So that in cases of this kind the matter of domicil makes no sort of difference in determining them; because the inconvenience to society and the public in general is the same, whether the parties contracting are domiciled or not.”

 

The terms of article 1, s. 3, of the French Code shew how these principles differ from those upon which it is based.

 

The principle indicated in this judgment appears to have been adopted in the judgment of Lord Brougham in the House of Lords in the case of Warrender v. Warrender. (1)

 

(1) 2 Cl. & F. 488, at p. 529. [*65]

 

The case of Brook v. Brook (1) was much relied upon by the appellant’s counsel. That case, however, so far from supporting the contention of the appellant, is when carefully considered a decision adverse to her. The case raised a similar point to that which had been raised in Mette v. Mette (2), with two distinctions – first, that the man in the latter case was not a natural born subject of the realm, although domiciled in England and naturalized by Act of Parliament; secondly, that the deceased wife’s sister was a native of Frankfort, and until her marriage domiciled there. The facts in the case of Brook v. Brook (1) are shortly stated in the head-note to the report as follows: “A. and B., British subjects, intermarried. B. died. A. and C. (the lawful sister of B.), both being at the time lawfully domiciled British subjects, went abroad to Denmark, where by the law the marriage of a man with the sister of his deceased wife is valid, and were there duly, according to the laws of Denmark, married, and it was held that under the provisions of 5 & 6 Will. 4, c. 54, the marriage in Denmark was void.”

 

In consequence of the recent Act legalizing marriage with a deceased wife’s sister, these two cases have become unimportant so far as they affected such a marriage, but the grounds upon which they were decided are still applicable to marriages within other degrees of consanguinity or affinity declared void by the aforesaid statute, and on these grounds, in the case of De Wilton v. Montefiore (3), Sir James Stirling held that a marriage solemnized abroad according to Jewish rites between a niece and her natural uncle, both being domiciled British subjects and adherents of the Jewish faith, was invalid, although it was valid by the law of the place of celebration and by Jewish law.

 

The decisions in those cases did not depend upon the question which is now under consideration, but upon whether or not the marriages, entirely prohibited, at the time, by the law of this country, were to be held valid because the parties thereto had entered into marriage relationship in a country where such marriages were permitted. It would not follow from these decisions that the marriages would have been held invalid in the

 

(1) 9 H. L. C. 193.

 

(2) 1 Sw. & Tr. 416.

 

(3) [1900] 2 Ch. 481. [*66]

 

countries in which they were celebrated. The case of Brook v. Brook (1) was a decision binding in this country, but it may be noticed that it has not met with approval in America, where it was very fully discussed and criticized in a learned judgment by Gray C.J. in the case of the Commonwealth v. Lane. (2) In that case a man, who had been lawfully married in Massachusetts and whose wife had obtained a divorce from him on the ground of adultery, in which case he was prohibited by the statutes of the State from marrying again without the leave of the Court, and who, without having obtained the leave of the Court, and being still a resident in Massachusetts, was married to another woman in another State according to its laws, and afterwards cohabited with her in the State of Massachusetts, the first wife being still alive, was indicted for bigamy, but was held not guilty without proof that the second wife was resident in the State of Massachusetts, and that he and she went into the other State to evade the provisions of the statutes of the State of Massachusetts. This proof was required by s. 6 of Gen. Sts. c. 106, which would seem to have been passed with the express object of preventing such second marriages, if such proof could be given.

 

There are several cases of a similar nature in America, amongst them Ponsford v. Johnson (3), Van Voorhis and Brintnall (4), and Moore v. Hegeman. (5)

 

It is possible that those cases might have been decided upon principles analogous to those applied in Scott v. Attorney-General (6) – distinguished in Warter v. Warter (7) – viz., that the restriction upon a second marriage was penal in its character, and as such was inoperative out of the jurisdiction under which it was inflicted. But Gray C.J., in his judgment in Commonwealth v. Lane (2), appears to have based his decision upon the broad ground of the second marriage being in accordance with the lex loci contractus.

 

The reason why the case of Brook v. Brook (1) may be considered to be adverse to the appellant is that the distinction is

 

(1) 9 H. L. C. 193.

 

(2) (1873) 113 Mass. 458.

 

(3) (1847) 2 Blatchford’s Rep. 51.

 

(4) (1881) 86 N. Y. 18.

 

(5) (1883) 92 N. Y. 521.

 

(6) 11 P. D. 128.

 

(7) 15 P. D. 152. [*67]

 

there drawn between the question of the validity of a marriage absolutely prohibited by the law of the domicil of both parties and the case in which a marriage, valid by the law of the place of celebration if it took place between two inhabitants of that place, is called in question because one of the persons is domiciled abroad, and has not complied with certain forms and obtained certain consents required by the law of the place of his or her domicil. The Lord Chancellor (Lord Campbell) said (1): “There can be no doubt of the general rule that ‘a foreign marriage, valid according to the law of a country where it is celebrated, is good everywhere.’ But while the forms of entering into the contract of marriage are to be regulated by the lex loci contractus, the law of the country in which it is celebrated, the essentials of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated. Although the forms of celebrating the foreign marriage may be different from those required by the law of the country of domicil the marriage may be good everywhere. But if the contract of marriage is such, in essentials, as to be contrary to the law of the country of domicil, and is declared void by that law, it is to be regarded as void in the country of domicil, though not contrary to the law of the country in which it was celebrated.” Again, in commenting upon the case of Simonin v. Mallac (2) next hereinafter referred to, Lord Campbell remarks (3): “The objection to the validity of the marriage in England was merely that the forms prescribed by the Code Napoleon for the celebration of a marriage in France had not been observed. But there was no law of France, where the parties were domiciled, forbidding a conjugal union between them; and if the proper forms of celebration had been observed, this marriage by the law of France would have been unimpeachable. The case” – that is, the case of Simonin v. Mallac (2) – “therefore comes into the same category as Compton v. Bearcroft (4) and Steele v. Braddell (5), decided by Dr. Radcliff. None of these cases can shew the validity of a marriage

 

(1) 9 H. L. C. 193, at p. 207.

 

(2) 2 Sw. & Tr. 67.

 

(3) 9 H. L. C. 193, at p. 218.

 

(4) (1769) 2 Hagg. Cons. 444, n.

 

(5) (1838) Milw. Ecc. Rep. (Ir.) 1. [*68]

 

which the law of the domicil of the parties condemns as incestuous, and which could not, by any forms or consents, have been rendered valid in the country in which the parties were domiciled.”

 

It was contended that Simonin v. Mallac (1) was wrongly decided, and therefore it is desirable to refer to it in some detail. It was a suit for a declaration of nullity of marriage. The ceremony of marriage took place on June 21, 1854, between the petitioner and Léon Mallac at the parish church of St. Martin’s-in-the-Fields, Middlesex, Léon Mallac being of the age of twenty-nine years, and the petitioner aged twenty-two. They came over to London for the purpose of being married, and returned to France the next day. The marriage was not consummated, and the petitioner asked Mallac to marry her again in France, but he refused, and she instituted a suit before the Civil Tribunal of First Instance of the Seine to procure a decree of nullity of the alleged marriage. On December 1, 1854, a decree was made, by default, against the respondent, who did not appear, declaring the marriage null and void on the ground that by the words of article 170 of the French Code the marriage ought to have been preceded by the publication in France prescribed by law, and that there must not have been any contravention of the provisions of articles 144 and following of the said Code, and that, although the nullity provided for by article 170 was not absolute, it ought to be pronounced when an omission of formalities had taken place with the formal intention of eluding the law, it being the province of the Tribunal to appreciate the circumstances thereof, and that the marriage was celebrated without the consent of the parents and without having been preceded in France by the publications prescribed by article 63 of the Code, and that the parties were French subjects domiciled in France who had only proceeded to England for the purpose of contracting a marriage in order to evade the prescriptions of French law, and that the marriage had not been consummated. Afterwards the petitioner came to reside in England, and petitioned the Court for Divorce and Matrimonial Causes for a decree of nullity of marriage. The petition and citation were served on the respondent at Naples, but he put in no answer, and the case came on before the Full Court as an undefended case. It was

 

(1) 2 Sw. & Tr. 67. [*69]

 

argued by Dr. Phillimore, evidently at great length and with great learning. Numerous authorities, both English and foreign, were cited, but the Court, composed of Sir Cresswell Cresswell, Channell J. and Keating J., dismissed the petition. In the course of the judgment Sir Cresswell Cresswell (delivering the judgment of the Court), in dealing with the second question to be determined – viz., whether the marriage was to be held null and void – said that, so far as the Court had been able to ascertain, the question was one prim3Ú4 impressionis, that no decision upon the point was cited, and they had not had the benefit of any other diligence save their own in the attempt to discover precedents for their guidance. The case was a stronger case in favour of the petitioner than the present case is in favour of the present appellant, for both the parties in that case were French subjects and of French domicil.

 

The argument was very much the same as that which was addressed to this Court, viz., that the law of the country of the domicil placed on the parties an incapacity to contract marriage without attending to the formalities prescribed, and that such incapacity travelled with them everywhere, and rendered them incapable of making a valid contract in any other country, especially where the intention was to evade the law of their own country. In the course of the judgment it was noticed that according to the evidence the incapacity to contract was not absolute, but conditional only, and that the marriage, having been contracted between a man and woman of the respective ages of twenty-nine and twenty-two without attending to the formalities prescribed by the Code Napoléon, articles 151, 152, 153, and 154, might receive a different consideration from one absolutely prohibited by article 148 by parties respectively under those ages. The Court, however, dealt with the case on the broad ground that by the decree of the French Court, as evidenced by the law of France, the marriage was void, and the question considered was whether the marriage was to be judged of here by the law of France or by the law of England. The learned judge said: “In general the personal competency or incompetency of individuals to contract has been held to depend upon the law of the place where the contract is made. But it was and is contended [*70]

 

that such rule does not extend to contracts of marriage; and that parties are, with reference to them, bound by the law of their domicil. This question, of so much importance in all civilized communities, has been largely discussed by jurists of all nations, but they all apply their observations to controversies arising, not in the countries where the marriage was celebrated, but in other countries where it is brought in dispute, and of which the parties were domiciled subjects. That a marriage good by the law of the country where solemnized should be held good in all other countries, and the converse, is strongly maintained as a general rule by nearly all writers on international law. But, according to the same authorities, it is subject to some few exceptions, viz., marriages involving polygamy and incest; those positively prohibited by the public law of a country from motives of policy, e.g., by our Royal Marriage Act.” He then refers to the third exception mentioned by Story in s. 113A, viz., “marriages celebrated in foreign countries by subjects entitling themselves under special circumstances to the benefit of the laws of their own country”; and continues: “In several instances, learned judges presiding in our Ecclesiastical Courts have stated the general rule, without mentioning the exceptions, whence it has sometimes been contended that they meant to controvert their existence. But inasmuch as none of the cases referred to fell within the exceptions above mentioned, it cannot justly be inferred that those learned persons intended their words to bear so extensive a meaning; for they would hardly have repudiated the doctrine of several learned writers whose works are always received as worthy of great attention, without condescending to advert to it in terms, and assigning some reasons for dissenting from it.” He proceeded further to refer to the cases of Scrimshire v. Scrimshire (1) and Middleton v. Janverin (2), and the writings of some of the jurists, especially Huber, De Conflictu Legum, from which he quotes, at p. 81, a passage upon which he remarks that Huber does not suggest the slightest doubt as to the marriages of minors without consent, celebrated in countries whither they had gone for the purpose of evading the laws of the country of domicil, being held good in the country where solemnized; but,

 

(1) 2 Hagg. Cons. 395.

 

(2) 2 Hagg. Cons. 437. [*71]

 

with reference to the second class, vindicates the country of the domicil against the charge of violating the laws of nations by refusing to recognize them. He then refers to certain other cases, and thus proceeds: “The French tribunal in this case appears to have held the marriage null and void, not because it was absolutely prohibited by the law of France, but because the parties contracted it in England with the formal intention of evading the prescriptions of the French law. …. Every nation has a right to impose on its own subjects restrictions and prohibitions as to entering into marriage contracts, either within or without its own territories, and if its subjects sustain hardships in consequence of those restrictions, their own nation only must bear the blame; but what right has one independent nation to call upon any other nation equally independent to surrender its own laws in order to give effect to such restrictions and prohibitions? …. Assuming then that a French subject comes to England and there marries, without consent, the subject of another foreign country by the laws of which such a marriage would be valid, which law is to prevail? To which country is an English tribunal to pay the compliment of adopting its law? As far as the law of nations is concerned each must have an equal right to claim respect for its laws. Both cannot be observed. Would it not then be more just, and therefore more for the interest of all, that the law of that country should prevail which both are presumed to know and to agree to be bound by? Again, assume that one of the parties is English; would not an English subject have as strong a claim to the benefit of English law as a foreigner to the benefit of foreign law?” After pointing out the difficulties which would arise if parties were called upon to prove their ages, the consent of certain relations, or the non-existence of certain relations, or that they have not come to this country to evade the laws of their own, and other difficulties, he concludes thus: “The great importance of having some one certain rule applicable to all cases; the difficulty, not to say impossibility, of having any rule applicable to all cases, save that the law of the country where a marriage is solemnized shall in that country at least decide whether it is valid or invalid; the absence of any judicial decision or dictum, or of even any opposite opinion [*72] of any writer of authority on the law of nations, have led us to the conclusion that we ought not to found our judgment in this case on any other rule than the law of England as prevailing amongst English subjects. France may make laws for her own subjects, and impose on them all the consequences, good or evil, that result from those laws; but England also may make laws for the regulation of all matters within her own territory. Either nation may refuse to surrender its own laws to those of the other, and if either is guilty of any breach of the comitas or jus gentium, that reproach should attach to the nation whose laws are least calculated to ensure the common benefit and advantage of all.” That case is in accordance with the general views to be found expressed in the English decisions, and has met with approval in this Court and in the House of Lords, or at least it may be said that where mentioned in those tribunals it has not been dissented from.

 

The case principally relied on by the appellant was the case of Sottomayor v. De Barros (1), before Sir Robert Phillimore, and afterwards on appeal before the Court of Appeal, where the petitioner and respondent, Portuguese subjects and first cousins, came to reside in England in 1858. In 1866 they went through a form of marriage before the registrar of the district of the City of London, and in 1873 they returned to Portugal, and continued to reside there. By the law of Portugal a marriage of Portuguese subjects, being first cousins, without dispensation, wheresoever contracted, is invalid. The wife afterwards, while residing with her parents at Lisbon, filed a petition in this country for a declaration of nullity of marriage. The respondent appeared, but did not file an answer, and the matter came on unopposed before Sir Robert Phillimore, who directed that the papers should be sent to the Queen’s Proctor, in order that he might argue the questions raised, and the Queen’s Proctor thereupon appeared. The questions were argued, and in the result Sir Robert Phillimore felt himself bound by prior decisions, and especially that in Simonin v. Mallac (2), and dismissed the petition.

 

The petitioner appealed to the Court of Appeal. The judgment

 

(1) 2 P. D. 81; 3 P. D. 1.

 

(2) 2 Sw. & Tr. 67. [*73]

 

of the Court, consisting of James, Baggallay, and Cotton L.JJ., was delivered by Cotton L.J., and one of the principal arguments addressed to us upon this appeal was based upon that judgment. The decision of the Court below was reversed. The basis of that judgment is to be found in the following sentence at p. 5 of the report: “But it is a well-recognized principle of law that the question of personal capacity to enter into any contract is to be decided by the law of domicil. It is, however, urged that this does not apply to the contract of marriage, and that a marriage valid according to the law of the country where it is solemnized is valid everywhere. This, in our opinion, is not a correct statement of the law. The law of a country where a marriage is solemnized must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted; but, as in other contracts, so in that of marriage, personal capacity must depend on the law of domicil; and if the laws of any country prohibit its subjects within certain degrees of consanguinity from contracting marriage, and stamp a marriage between persons within the prohibited degrees as incestuous, this, in our opinion, imposes on the subjects of that country a personal incapacity, which continues to affect them so long as they are domiciled in the country where this law prevails, and renders invalid a marriage between persons both at the time of their marriage subjects of and domiciled in the country which imposes this restriction, wherever such marriage may have been solemnized.”

 

Now this Court hearing this appeal is bound by the decision of the Court of Appeal in this case of Sottomayor v. De Barros. (1) It is not necessary, even if we were at liberty to do so, to consider whether that case was rightly decided, but it is permissible to point out that the commencement of the paragraph above set out could scarcely be considered correct in stating that “it is a well-recognized principle of law that the question of personal capacity to enter into any contract is to be decided by the law of domicil,” for, if so, it would logically seem to follow that that part of the judgment which indicates that the opinion of the Court was confined to cases where both the contracting parties

 

(1) 2 P. D. 81; 3 P. D. 1. [*74]

 

were, at the time of their marriage, domiciled in a country, the laws of which prohibited their marriage, should not have expressed that limitation, and that the case of Simonin v. Mallac (1) should have been overruled, and yet that case, according to our reading of the judgment, is approved. The probability is that that sentence should be read with the context, and be confined to the case present to the minds of the Court in relation to marriages which could not be contracted at all by the laws of the country of domicil. Even then it may be questioned whether that sentence is correct, and whether the question of capacity is really raised at all in such a case; that is to say, where both the parties are capable of entering into a marriage but may not marry each other because such a marriage would be illegal in their own country. That is rather a question of illegality than of capacity, and it may, perhaps, not be unreasonable for one country to refuse to recognize a marriage contracted in it between two persons by the laws of whose domicil a marriage between them is illegal, and yet it may be quite proper and reasonable for a country, in which a marriage takes place between persons domiciled in another country, to recognize it as a valid marriage when it would be legal in such other country if contracted after compliance with all formalities required in such other country, and, further, to protect its citizens in all cases of marriages where one of the contracting parties is domiciled in the country first referred to – that is to say, where the marriage takes place – and the other is domiciled in a foreign country, and there is a conflict between the laws of the two countries as to the validity of the marriage. The passage in the judgment expressly confining the decision to the case then before the Court is as follows: “It was pressed upon us in argument that a decision in favour of the petitioner would lead to many difficulties if questions should arise as to the validity of a marriage between an English subject and a foreigner in consequence of prohibitions imposed by the law of the domicil of the latter. Our opinion on this appeal is confined to the case where both the contracting parties are, at the time of their marriage, domiciled in a country the laws of which prohibit their marriage. All persons are legally bound to

 

(1) 2 Sw. & Tr. 67. [*75]

 

take notice of the laws of the country where they are domiciled. No country is bound to recognize the laws of a foreign State when they work injustice to its own subjects, and this principle would prevent the judgment in the present case being relied on as an authority for setting aside a marriage between a foreigner and an English subject domiciled in England on the ground of any personal incapacity not recognized by the law of this country.”

 

It was upon this passage that, when the case subsequently came before Lord Hannen, he was able to decide in favour of the marriage being valid notwithstanding the fact that one of the parties was domiciled in Portugal.

 

The concluding passage in the judgment of the Court of Appeal is as follows: “It only remains to consider the case of Simonin v. Mallac. (1) The objection to the validity of the marriage in that case, which was solemnized in England, was the want of consent of parents, required by the law of France, but not under the circumstances by that of this country. In our opinion this consent must be considered a part of the ceremony of marriage, and not a matter affecting the personal capacity of the parties to contract marriage, and the decision in Simonin v. Mallac (1) does not, we think, govern the present case.”

 

That may perhaps be considered only a dictum by the learned Lords Justices, but it is really a very strong statement that Simonin v. Mallac (1) is clearly distinguishable from the case before them, and we regard it as an approval of the decision in that case, and, if so, it is an authority adverse to the contention of the appellant on the present appeal. The case having been thus argued in the Court of Appeal by the Queen’s Proctor, under the provisions of s. 5 of the Matrimonial Causes Act, 1860, was remitted to the Probate Division in order that the question of fact raised by the Queen’s Proctor’s plea should be considered. It was then heard before Lord Hannen, who found, as a fact, that the respondent, the husband, was domiciled in England, but that the domicil of the petitioner was Portuguese.

 

In the course of his judgment he pointed out how the passage in the judgment of the Court of Appeal expressly confining the decision to the case then before the Court left him free to consider

 

(1) 2 Sw. & Tr. 67. [*76]

 

whether the marriage of the respondent, who was domiciled in England, with a woman subject by the law of her domicil to a personal incapacity not recognized by English law, must be declared invalid by the tribunals of this country, and he commented (1) upon the passage in the judgment which formed the basis of the decision, and remarked that it appeared to him to put forward a novel principle for which, up to the present time, there had been no English authority. He then cited the case of Male v. Roberts (2), in which the contract upon which the defendant was sued was made in Scotland, the defence being that the defendant was an infant, and where Lord Eldon held the defence bad, saying, “If the law of Scotland is that such a contract as the present could not be enforced against an infant, that should have been given as evidence. The law of the country where the contract arose must govern the contract”; and after referring to the cases of Scrimshire v. Scrimshire (3) and Simonin v. Mallac (4) and other cases, he held that the marriage between the petitioner and respondent was valid, and dismissed the petition.

 

It appears to have been suggested that the papal dispensation of which the law of Portugal recognizes the validity could not be distinguished in principle from the consent of a parent; but Cotton L.J. stated in his judgment that it could not, in the opinion of the Court, be held that such a dispensation is a matter of form affecting only the sufficiency of the ceremony by which the marriage was effected. Mr. Foote’s remarks upon this question in his book on Private International Jurisprudence, 3rd ed. p. 367, are much in point: “Dispensation with a law is, in principle, a very different thing from compliance with its directions, though in practice the effect of the two may sometimes be similar. In such a case as Sottomayor v. De Barros (5) the law of Portugal does not say that, when first cousins wish to intermarry, they shall obtain the written consent of the Pope to their doing so. It says they shall not marry at all, and such a prohibition by a domiciliary law is not the less complete, as far as other tribunals are concerned, because the same domiciliary

 

(1) 5 P. D. at p. 100.

 

(2) (1799) 3 Esp. 163.

 

(3) 2 Hagg. Cons. 395.

 

(4) 2 Sw. & Tr. 67.

 

(5) 2 P. D. 81; 3 P. D. 1. [*77]

 

law, under certain circumstances, allows itself to be dispensed with.”

 

The last case in which the case of Simonin v. Mallac (1) has been referred to was the case of Hay v. Northcote (2), in which Farwell L.J. (then Farwell J.) followed that case.

 

In the United States of America the doctrine that the laws of the country or State where a marriage is celebrated will, in general, govern the question of its validity has been very clearly expressed. Several cases on the subject have been mentioned above, and in addition thereto and to the work of Story J., reference may be made to the cases of Medway v. Needham (3), which was commented on in Brook v. Brook (4); Stevenson v. Gray (5), Commonwealth v. Graham (6), and Everett v. Morrison (7); and to Mr. Bishop’s Commentaries on the Law of Marriage and Divorce, ss. 353-370. In s. 359 the latter writer discusses the inconveniences which arise from applying a different rule, and after expressing the opinion that the decision of the Court of Appeal in Sottomayor v. De Barros (8) is contrary to the old ideas of the supremacy of English law on English soil, he states that: “No American Court has ever yet permitted any classes of foreigners, except Sovereigns and their diplomatic agents and attendants, to be thus exempt from subjection to our laws on American soil.” He then proceeds to discuss (ss. 371-389) limitations to the doctrine, which are also referred to in Story J.’s work (ss. 89, 113A et seq.), but do not bear directly upon the question of minority. He also cites the case of the Commonwealth v. Lane (9), above referred to, and does not consider that the decision in Brook v. Brook (4) should be followed in America.

 

After very careful consideration of the present case we have come to the conclusion that the first point must be decided against the appellant, and that the marriage between her and Léon Philip must be declared valid in England.

 

(1) 2 Sw. & Tr. 67.

 

(2) [1900] 2 Ch. 262.

 

(3) (1819) 16 Mass. 157.

 

(4) 9 H. L. C. 193.

 

(5) 17 B. Monr. (Ky.) 193, 210.

 

(6) (1892) 157 Mass. 73.

 

(7) (1893) 69 Hum. (N. Y.) 146.

 

(8) 2 P. D. 81; 3 P. D. 1.

 

(9) (1873) 113 Mass. 458. [*78]

 

That leaves for consideration the second question, as to the effect of the French decree. The argument upon this point for the appellant was that the decree had an effect similar to that of a decree of dissolution of marriage in a country in which both parties are domiciled, and that there was no distinction between the case of a decree of nullity and a decree of dissolution of marriage in its binding effect. Without doubt it has now been clearly established that the Courts of this country, wherever a marriage has been celebrated, recognize a decree of dissolution made by a proper tribunal of the country in which the parties are domiciled as universally binding and putting an end to the marriage, and it is no real exception to this principle that, in cases where a wife has been deserted in the country of the domicil by her husband in circumstances entitling her to sue for divorce, it has been held that she might sue in the Courts of the country of the domicil notwithstanding the fact that the husband has left the country and might possibly have done so with the intention of acquiring a domicil in another country. The decree in such a case is justified, either by considering that the husband cannot be heard to say that he has changed his domicil, or, as some have thought, that the wife must ex necessitate be entitled to treat the country of the previous matrimonial domicil as still being the country of her domicil, and to require its Courts to do justice to her, because otherwise it would be impossible for a wife so situated to obtain a decree, as the respondent might keep changing his abode from place to place, asserting that he had abandoned his original domicil, and any domicil with which it were sought to fix him.

 

But there are differences between suits for dissolution of marriage, and those in which a declaration of nullity of marriage is claimed. The question raised in the latter class of suits is whether a valid marriage ever took place at all. Of course, if it took place, the domicil of the wife becomes the domicil of the husband. But, if it did not take place, the mere fact that a ceremony was gone through would not change the domicil of the wife, and she would not, therefore, necessarily have the same domicil as her intended husband. The Courts have recognized the distinction in several cases. In the case of Sinclair v. [*79] Sinclair (1) there was a suit for divorce a mensa et thoro brought by the wife against the husband by reason of cruelty and adultery, by which he appeared under protest, alleging in bar of the proceedings that the suit could not be entertained by the Court, for that the marriage had been celebrated at Paris, and had been since dissolved by a sentence of the Court at Brussels on proceedings instituted by him, for nullity and divorce by reason of the adultery of the wife. It was clear that the Brussels decree was only on the ground of nullity. Lord Stowell, in giving judgment, said: “Something has been said on the doctrine of law respecting the regard due to foreign judgments, and undoubtedly a sentence of separation in a proper Court for adultery would be entitled to credit and attention in this Court; but I think the conclusion is carried too far when it is said that a sentence of nullity of marriage is necessarily, and universally, binding on other countries. Adultery and its proofs are nearly the same in all countries. The validity of marriage, however, must depend in a great degree, on the local regulations of the country where it is celebrated. A sentence of nullity of marriage, therefore, in the country where it was solemnized would carry with it great authority in this country; but I am not prepared to say that a judgment of a third country on the validity of a marriage not within its territories, nor had between subjects of that country, would be universally binding. For instance, the marriage alleged by the husband is a French marriage. A French judgment on that marriage would have been of considerable weight; but it does not follow that the judgment of a Court at Brussels on a marriage in France would have the same authority, much less on a marriage celebrated here in England.” His Lordship, therefore, declared the protest insufficient, and directed the respondent to appear absolutely and answer the general charges of the wife’s suit. It seems clear, from this judgment, that Lord Stowell did not consider that a sentence of nullity in Brussels would have been conclusive.

 

Again, in the case of Simonin v. Mallac (2) the Court did not regard the French decree as binding upon them, and dismissed the petition for nullity.

 

(1) 1 Hagg. Cons. 294.

 

(2) 2 Sw. & Tr. 67. [*80]

 

In the case of Niboyet v. Niboyet (1) the late Lord Esher, in his judgment, intimates that, in his opinion, the rule as to jurisdiction in divorce does not apply to suits for declaration of nullity of marriage; and the late Lord St. Helier, in Roberts v. Brennan (2), expressed his view, and decided the case upon that view, that residence, and not domicil, is the test of jurisdiction in nullity cases.

 

A further distinction is to be noticed between the two classes of suits, namely, that our Courts regard the Courts of the domicil as having in general exclusive jurisdiction in a case of divorce, though the Courts of this country will recognize the binding effect of a decree of divorce, obtained in a State where the husband was not domiciled, if the Courts of the country or the State of his domicil will recognize the validity of the decree: Armitage v. Attorney-General (3); but it has frequently been held that, although the Courts of the domicil of the parties might entertain the question of the validity of their marriage, yet that the Courts of the country in which the marriage was celebrated will also entertain a suit to determine the same question: see Linke v. Van Aerde. (4) It may possibly be that if a suit were brought for nullity on the ground of impotence, and the facts were established in favour of the petitioner, either in the Court of the domicil of the parties or in the Court of the country in which the marriage was celebrated, it might be reasonable to hold that such a decree ought to be treated as universally binding, but it does not at all follow, where the only matter in dispute is whether a marriage ought to be held valid in the country where it was celebrated, and its validity is challenged on the ground of want of compliance with the formalities required by the laws of another country, that the Courts of the former country are to be bound by a decision on the question of the validity of the marriage given in the other country, even though it be the country of the domicil of one of the parties.

 

It certainly would be somewhat startling if this Court, having come to the conclusion that the marriage in question between the appellant and Philip was valid in England, should yet hold

 

(1) 4 P. D. 1, at p. 19.

 

(2) [1902] P. 143.

 

(3) [1906] P. 135.

 

(4) 10 Times L. R. 426. [*81]

 

that the French decision that it was not a valid marriage was binding upon it. The fact is that a conflict of law exists between the laws of the two countries, owing to the difference between the rules of law adopted, and, as we hold, reasonably adopted, in England, and the provisions of the French Code. This is an entirely different case from a case of an application to dissolve a marriage, which begins with proof that a marriage has been validly contracted and celebrated, and the question is whether or not, on account of matters arising subsequently to the marriage, it has been, or can be, validly dissolved by a particular Court.

 

Moreover, in the present case it is obvious from the terms of the decree that all that the decree has purported to declare is that the marriage is null according to articles 148 and 170 of the French Civil Code, which amounts merely to a declaration that the marriage is null and void where French law can prevail.

 

In our opinion, therefore, the second point ought to be deter. mined against the appellant. In arriving at these conclusions we are fully conscious of the hardship on the appellant, because the effect of them is to hold that, although Léon Philip is free himself from her in France, she still remains in England his legal wife, and therefore not the wife of the petitioner; but we must arrive at the decision of this case by applying general principles which ought to be considered in any case which may arise where a marriage has taken place in this country between an English subject domiciled in England and a foreigner domiciled abroad, and the right remedy to look forward to is a recognition by the agreement of civilized countries of the principle that the omission of formalities required by the law of one country, but not by the law of the country where a marriage is celebrated, ought not to be allowed to affect the validity of the marriage in the country requiring such formalities.

 

It was stated that some changes have recently (1) been made in

 

(1) [In 1907. There are alterations in the formalities of publication and the requirements as to consent. The matrimonial age of majority is made uniform (21) for both sexes. The “acte respectueux” is no longer required from a person more than 30 years old. An account of the new group of laws affecting marriage, by Mr. George Barclay, licencié en droit, is forthcoming in the Journal of the Society of Comparative Legislation. – F. P.] [*82]

 

French law, but the exact nature and extent of the changes did not appear. The observations made in this judgment are directed to questions arising in connection with the formalities required on entering into a marriage, and are not to be understood as necessarily advocating an interference with any views which may be held in any country as to marriages which are absolutely prohibited by the law of that country.

 

With regard to the decision dismissing the appellant’s suit for a divorce, it may be observed that her position after the French decree and after Philip had left her and married again would be intolerable unless some remedy in her favour existed, for by reason of the conflict of laws she would be a wife in England and not a wife in France, and in regard to such an observation it may not unreasonably be suggested that the remedy may be to allow her to obtain a divorce in England. She was not allowed to do so, because it was held that the Court had no jurisdiction in such a case, as Philip was not domiciled in England, but the real basis for not allowing a divorce suit to be maintained except in the country where the married couple are domiciled is that, in order to prevent difficulties, inconveniences, and scandals which may arise from different decisions in different countries, “it is both just and reasonable” (in divorce cases) “that the differences of married people should be adjusted in accordance with the laws of the commonity to which they belong, and dealt with by the tribunals which alone can administer those laws”: per Lord Penzance, Wilson v. Wilson. (1) This, of course, assumes the existence of a marriage the validity of which is recognized in the country where the suit is brought, and that both persons are domiciled there. Now, if the country of the husband’s domicil refuse to recognize the marriage, and therefore cannot and will not entertain a suit for divorce against him, the justice and reasonableness of the international rule just mentioned cease to be apparent, and the wife having no right of suit whatever against the husband in his country, and having been left in the

 

(1) 1872) L. R. 2 P. & D. 435, at p. 442. [*83]

 

country of her original domicil where the marriage was celebrated and is recognized as binding upon both her and him, it would seem reasonable to permit her to sue in the latter country for the dissolution of the tie which is recognized therein, though not in the foreign country, in case she has grounds of suit which would entitle her to a divorce if her husband had been domiciled in her country; in other words, to treat her as having a domicil in her own country which would be sufficient to support a suit. No general rule of law would then really be infringed. The necessities of the case would call for the intervention of the Courts of her own country in order to do her justice and release her from a tie recognized in the one country though not in the other. This way of regarding the matter does not seem to have been presented on behalf of the appellant to Lord St. Helier. From the shorthand notes of the trial before him there appears to have been a very short discussion, and it seems to have been treated as if, the domicil of Philip being French, no claim for a divorce in a suit in this country was possible.

 

It is not necessary to come to a final conclusion on this important point, which was not discussed before us, for it would not help the appellant in the present case, as her suit for divorce was dismissed without any appeal being brought from the decision, and as she has subsequently gone through the ceremony of marriage with Mr. Ogden without having been released in this country from her previous tie.

 

In our judgment, therefore, this appeal must be dismissed, but in the circumstances without costs.

 

Appeal dismissed.