"other that has silently accepted them, the courts of this cc country, I presume, would not incline to shake their "validity upon these large and general theories, en"countered as they are by numerous exceptions in the "practice of nations." (q). CCCCXXXIX. Lastly, upon this subject of the formalities being governed lege loci contractús, the opinion of Savigny (r) should be mentioned. He is of opinion that the rule locus regit actum, is applicable to the forms of marriages; but still he thinks it a grave question, whether, when the Law of the domicil requires an Ecclesiastical ceremony, and the lex loci contractús demands a proceeding before the Civil Magistrate only, a compliance with the latter Law would satisfy the Law of the domicil: and he advises parties who have been so civilly united, to be ecclesiastically married afterwards at the place of their domicil. This proceeding, he says, must, according to the Common Law of Germany, validate retrospectively the marriage. His advice is, of course, inapplicable, as he says, to the case of foreigners who, being previously married, become domiciled in the land which requires the religious ceremony. [CCCCXXXIX.A. Although in India, Ceylon, and other parts of the British Empire, where Christianity is not the prevalent religion, polygamous marriages, and the relations arising from them, are acknowledged and regulated by the Law, yet in this country, it must be remembered, the Law attaches to the words "marriage" and "wife" a narrower signification. In Bethell v. Hildyard (s) the issue raised was the legitimacy of the child of C. Bethell, a domiciled Englishman, and Teepoo, (q) Ruding v. Smith, 2 Haggard Consist. Rep. p. 390. [(s) L. R. 38 Ch. D. p. 220.] niece of the chieftain of the Baralongs-a tribe inhabiting a portion of South Africa outside the British dominions— amongst whom polygamy prevailed. Some ceremony of marriage according to Baralong custom was gone through, and the parties lived together amongst the tribe until just before the death of Bethell, which took place in Bechuanaland in an encounter with the Boers. Two decisions, by the Courts of Lower Canada and of Missouri, which supported the contention that the Baralong marriage was a valid one, and the child legitimate, were cited. Mr. Justice Stirling, however, basing his opinion on the judgments of Lord Brougham in Warrender v. Warrender (t), and of Lord Penzance in Hyde v. Hyde and Woodmansee (u), held "that a union formed between a man and a woman in a foreign country, although it may there bear "the name of a marriage, and the parties to it may there "be designated husband and wife, is not a valid marriage "according to the law of England unless it be formed on "the same basis as marriages throughout Christendom, and "be in its essence the voluntary union for life of one man "" and one woman to the exclusion of all others." 66 6 [(t) 2 Clark and Finnelly Rep. pp. 530-533.] 999 [(u) L. R. 1 Prob. and Matrimonial, p. 130, in which Lord Penzance, on a petition for the dissolution of a marriage that took place in Salt Lake City between two English Mormons then residing in the Territory of Utah, refused to recognize it as a valid marriage, on the grounds that marriage as understood in Christendom might, for the purposes under consideration, be defined as "the voluntary union for life of one man and one woman to the exclusion of all others," and that "the matrimonial law of this country is adapted to the Christian marriage, and is wholly inapplicable to polygamy." But his decision was expressly confined to the petition before him. "This Court," he observed, "does not profess to decide upon the rights of succession or legitimacy which it might be proper to accord to the issue of the polygamous unions, nor upon the rights or obligations in relation to third persons which people living under the sanction of such unions may have created for themselves. All that is intended to be here decided is that as between each other they are not entitled to the remedies, the adjudication, or the relief of the matrimonial law of England."] It may be added that, whilst a marriage, in order to be recognized by the English Courts, must have the basis above defined, the parties to such a marriage can claim relief whether they be Christians or not (v).] [(v) Vide infrà, § cccclxxxvii.] CHAPTER XIX. MARRIAGE EFFECTS ON PROPERTY (a). CCCCXL. THE maxim of the Roman Law, that the home of the husband becomes, immediately on marriage, the domicil of the wife, was expressed in very forcible language. The woman, said that law, if she be absent, cannot be married by letter or by proxy, "deductione enim opus esse in mariti, non in uxoris domum, quasi in domi"cilium matrimonii" (b). 66 It is well said by Savigny, that in this language is expressed not any peculiar characteristic of the positive Law of Rome, but a recognition of the relation which necessarily, and universally, springs from the general nature of the institution of Marriage. All States, accordingly, Christian and Heathen, appear to have founded their Marriage Laws upon this principle, as their basis-that the home of the husband is the domicil of the wife. CCCCXLI. It may be useful to state the various questions of law which have been raised, and variously solved by various jurists, on the effect of Marriage upon the property of the wife. (a) Rocco, p. 294. Savigny, R. R. viii. s. 379. Folix, liv. ii. t. i. c. ii. ss. 90, 91. Story, c. vii. Marriages-Incidents to. 1 Burge, Comm. on For. and Col. Law, Pt. I. c. vii. Effect of marriage on the property of the husband and wife, and c. vi. s. 2. Westlake, p. 352, &c. (b) Dig. lib. xxiii. t. ii. 5. Disabilities of American Women married abroad, by W. B. Lawrence, LL.D., New York, 1871. CCCCXLII. These questions of law presuppose, however, a certain state of facts with respect to the Marriage, the Property, and the Domicil of the parties, which it is of importance to notice. Firstly, as to the Marriage :— The Marriage has taken place either,- 2. After the marriage. Thirdly, as to the Domicil : 1. It is either the same as it was when the marriage was contracted; or, 2. It has been changed, and a new one acquired subsequently to the marriage. CCCCXLIII. Upon one or other of these states of facts, the following questions of law have been raised : 1. Assuming that the marriage has taken place without express contract, is the law which governs the property of married persons a Real or a Personal Statute? in other words, is it the lex rei sita, or the lex domicilii of the husband? 2. Is the law founded on the doctrine of a tacit contract between husband and wife? or does it spring, proprio vigore, from the relations of Marriage? 3. Does this law affect property acquired after, as well as before, the marriage? 4. If, after the marriage, a new domicil shall have been acquired in a State which has a law respecting the property of married persons other than, and dfferent from, the law of the State which was the domicilium matrimonii—is the Law of the old or the new domicil to govern the question? 5. If the Law of the new domicil, does it govern both kinds of property-that acquired before, and that acquired after, the marriage? |