CHAPTER XXI.

DIVORCE-FOREIGN SENTENCE.

CCCCXCI. THAT portion of Private International Law which relates to Divorce ought, perhaps, strictly speaking, to form a part of the consideration of the effect given by Comity to the sentences of Foreign Tribunals (a), a subject which is treated of in a later part of this volume. But it seems more practically convenient to examine this question in connection with the Law on Marriage.

CCCCXCII. The Contract of Marriage differs from all others (b) in this, among other incidents, that it cannot be broken at the mere will and pleasure of the parties who entered into it (c).

In every Christian State, which permits either the entire or the partial dissolution of the Marriage Bond, the intervention of the public authority, in the shape of a judicial sentence, is necessary.

CCCCXCIII. Christian States have been unanimous in recognizing, subject to the limitations and exceptions which have been mentioned, the general principle, that Marriage celebrated according to the lex loci contractús is

(a) So Merlin mentions under Questions de Droit-Divorce, viii. : "Les tribunaux Français peuvent-ils annuler un Divorce prononcé par jugement en pays étranger?" but refers to l'article "Jugement," xix.

[(b) "Marriage . . . is indeed based upon the contract of the parties, but it is a status arising out of a contract, to which each country is entitled to attach its own conditions, both as to its creation and duration." Per Sir James Hannen, in Sottomayor v. De Barros, L. R. 5 P. D. at p. 101.]

(c) See note at the end of this chapter as to the Roman Law on Divorce.

valid everywhere. But Christian States have been and are far from unanimous in recognizing the principle that a dissolution of the contract pronounced by the tribunal of one State is valid in another. Marriage has been said to be a contract juris gentium, but the dissolution of it has not been considered as jure gentium binding on all States.

It is, indeed, a question of private right, but one indissolubly united with public order. The religious and moral elements which are the basis of the Marriage Contract (d) bring the Law relating to its dissolution under the category of those exceptional restrictions to the admission of Foreign Law which have been mentioned at the outset of this volume (e). The question is one more of Status than of Contract.

CCCCXCIV. Upon this difficult and most important matter there has obtained, and still obtains, great and lamentable discord, both in the opinions of jurists and the decisions of Courts.

CCCCXCV. This discord has principally appeared in the consideration of the following questions :—

1. What forum ought to take cognizance of the question of Divorce-the forum of the Matrimonial domicil— of the Actual domicil—of the husband only—or of the wife only-or of either?

2. What Law ought the forum, if it entertain the suit, to apply? The lex fori, or that of the matrimonial or the actual domicil? If the latter, that of the husband or the wife?

(d) It is said by a judge of the United States of North America, that "regulations on the subject of Marriage and Divorce are rather parts of the criminal than the civil code, and apply not so much to the contract between the individuals as to the personal relation resulting from it, and to the relative duties of the parties, to their standing and conduct in the society of which they are members; and these are regulated with a principal view to the public order and economy, the promotion of good morals, and the happiness of the community."— Mr. Justice Sewell in Barber v. Root, 10 Mass. Rep. at p. 270.

(e) Vide suprà, §§ xii, xiii, xiv, xv.

3. Ought a State, the Law of which does not permit divorce, to recognize a divorce, decreed in another State between persons belonging to that State ?(f)

4. Ought a State, the Law of which does permit divorce, to recognize a foreign divorce between its own subjects, or between one of its own subjects and a foreigner?

5. Ought a State, the Law of which permits divorce upon certain grounds, to recognize a foreign divorce which had been obtained upon other grounds by its own subjects ?

CCCCXCVI. (1) Savigny (g) lays it down as an incon- 、 trovertible proposition that the only competent forum is that of the actual domicil of the husband; and the only Law to be applied, that of his domicil. His opinion is founded on considerations of the moral element of laws relating to Divorce, which clothes them with a rigorous and positive character; he considers them as belonging to that class of laws which appertains to the public policy of each State; laws which each State therefore enacts without regard to other States.

It was upon this principle that when, in 1814 and 1816, Prussia introduced her Code for the first time into her newly acquired provinces beyond the Elbe, it was ordered that, with respect to existing marriages, divorces should be governed by this Code, and not by the Law in force when the marriage was celebrated: the order was indeed accompanied by an exception (praised by Savigny on account of its justice and moderation) that a divorce should

(f) Mr. Burge says of Marriage: "As its dissolubility or indissolubility is no part, express or implied, of the contract of marriage, but is an incident to the status of husband and wife after it has been constituted by such a contract, it must be determined by the law to which the status is subject.”—Comm. vol. i. p. 688.

Cf. ib. pp. 102, 244.

(g) R. R. viii. s. 379, num. 6, s. 396, s. 399.

The decision in Yelverton v. Yelverton, 1 Swab. & Tristr. Rep. p. 574 (1859), by the Judge Ordinary, in England, arrives at Savigny's conclusion, through other premisses-viz. "actor sequitur forum rei.”

not be allowed in those cases in which the fact constituting the ground of the divorce, and admitted to do so by the Code, should have taken place under the jurisdiction of the Foreign Law, which did not recognize this fact as constituting a ground of divorce.

When the French Code was introduced into Belgium and Piedmont, during the period of their incorporation into the French Empire, it was decided by the tribunals of these States, that a divorce ought to be granted under the provisions of that Law on account of facts which had happened previously to the introduction of it (h).

CCCCXCVII. Savigny's position rests, no doubt, upon sound principle, and is supported by the best legal analogies; but it requires, nevertheless, explanations, and cannot in justice be always, and in all circumstances, rigorously applied.

In the first place, what is meant by the actual domicil of the husband ?-a forensic domicil; that is, one more easily acquired than a testamentary domicil-one which certainly does not require the intention to remain permanently in a particular place, and yet, perhaps, one which is not satisfied by a mere residence adopted for the purpose of founding a jurisdiction; to establish, indeed, this distinction in practice is, in the absence of any positive law on the subject, extremely difficult.

What are the criteria which establish a bona fide residence as distinguished from domicil () ? Where are they laid down ?

It is not easy to answer these questions. The French Law, as will presently be seen, attaches great importance to foreign naturalization, admitting that in such cases the Status of the Frenchman is lost.

(h) Merlin, Rép. Effet Rétroactif, III. § ii. art. vi.

Westlake, s. 48.

(i) See Yelverton v. Yelverton, 1 Swabey & Tristram Rep. p. 574 (1859).

In Scotland a positive law specifies the duration of residence which renders a foreigner amenable to a suit for divorce in a Scotch Court (). Here, the distinction between domicil and residence is remarkable. A plea that the residence was in fraudem legis domestica is inadmissible in Scotland, for by specifying the duration of residence it shuts out all consideration of Foreign domicil (k).

In England a positive law requires a certain amount of residence before a marriage can be solemnized by Episcopal license or banns, but no positive law as to the time of residence requisite to found the jurisdiction of an English Court. The subject is at present in a state of much perplexity and uncertainty in England; but, according to a judgment (kk) of the Divorce Court, the residence of the wife alone is insufficient to found the jurisdiction of an English Court in a suit against a husband, who has not been and is not residing within the limits of the State to which the Court belongs. It should be added that in this case the marriage also had been contracted out of England.

In the United States of North America a contrary doctrine has been maintained by their tribunals; and surely such a doctrine may be maintained with no small show of reason.

The general doctrine, that the domicil of the wife is legally that of her husband, rests upon the basis that it is the legal duty of the wife to dwell with her husband wherever she goes; but if he commits such an offence against the marriage state as renders her cohabitation morally, and perhaps also physically impossible, he has

(5) After forty days' residence, a citation may be legally served on his dwelling-place; but he may be personally cited the moment he sets foot in Scotland.-Utterton v. Tewsh, Fergusson's Consist. Rep. p. 23. (k) See Geils v. Geils, 1 Macqueen's H. L. C. p. 275.

(kk) Yelverton v. Yelverton, ubi suprà [cited more at length infrà, § dvi.A. See further § dvi.в, and the cases there cited and referred to.]