« PreviousContinue »
must be civil. We have pointed out how discrepant are the laws of the three kingdoms ; to what risks and dangers this want of uniformity may tend; how well founded is the cry for a simple and general law of marriage for these islands ; and we have been venturesome enough to propose a plan for carrying our ideas and aims into practical working. To simplify conflicting laws, differences must be reconciled, toned down and harmonized; and the good in each system preserved and made part of the new entirety. Our scheme, we venture to suggest, in some part meets these requirements. While demanding a compulsory civil ceremony, it yet leaves unfettered the power and influence of those in sacred offices over this holy and revered bond ; while embracing all the more salutary provisions of the English system, it borrows suggestions from the Irish; and adopts from the Scotch all those wholesome and stringent regulations touching the consent of interested parties to the intended marriage, and the residence of the couple contemplating matrimony,which prevent hasty, secret, and improvident nuptials. If it be found impossible so to assimilate at once these conflicting laws, let us not shrink from attempting the experiment upon ourselves in England ; and if found successful, gradually to extend to the sister kingdoms the advantages which they may ultimately be willing to adopt. This probably will be the future of any such measure as we have here advocated. In conclusion, we will quote the words of Lord Selborne* on the difficulty of procuring a ready acceptance of large and important measures of reform : “ It is a misfortune of the times in which we live, that any large or comprehensive legislation on those subjects which touch most closely the highest interests of all classes of men, seem to be impossible unless some popular or political excitement can be got up about them.”
W. P. EVERSLEY.
' Debate on the Marriage Preliminaries Bill, 1878. Hansard, Vol. 142. p. I248.
IV.—ON THE jURISDICTION OF THE HIGH COURT OF jUSTICE IN DIVORCE.
THE case of Niboyet v. Niboyet, reported in the February
number of this year’s Law Reports (4 P.D. 1), has introduced so much confusion and uncertainty into the existing law with respect to the Divorce jurisdiction of the High Court of justice, that an examination of the authorities and principles relied on in the argument and in the conflicting judgments may be of advantage.
The question involved is, speaking generally, this : Can a divorce be properly pronounced by any Court which is not the Court of the matrimonial domicil, i.e., the domicil of the husband ? * More particularly : Can the English Court properly pronounce a divorce when the domicil of the husband is not English? This question may again be varied by asking: Has the English Court jurisdiction to pronounce such a divorce? The meaning intended to be conveyed by the two expressions is in fact the same. Amplifying it, it is this: Do the rules of private international law, so far as they are adopted, followed, or recognised by English Courts, authorize the English Court to pronounce a divorce in such a case? This is the question which Niboyet v. Niboyet purports to answer, and it answers it in the following way. Sir R. Phillimore and Brett, L.j., say that such an assumption of jurisdiction is unauthorised; that by the law of nations and the law of England, domicil and domicil alone is the essential circumstance which gives any Court jurisdiction to dissolve the matrimonial bond; and that inasmuch as M. Niboyet’s domicil is confessedly French, by the admission of the parties and as a matter of law (or rather, as a legal presumption of a fact), the English Court cannot, at the instance of the wife, interfere with his marriage tie. On the other hand, James & Cotton, LL.]]., are of opinion that the domicil of the husband is not the true test; that the Divorce Act (20 & 21 Vict., c. 85) was intended to give the Court which it constituted power to deal with all matrimonial matters in England, and that upon the true construction of that Ac_t the divorce of a Frenchman “ resident” in England, but retaining his French domicil, is such a matrimonial matter. Sir R. Phillimore’s opinion having been pronounced in the Court below, and not in the Court of Appeal, the judgment of Brett, L.]., has been over-ruled by the voices of james & Cotton, LL.]_]. It is almost unnecessary, however, to say that on a subject to which Sir R. Phillimore has devoted especial attention, the opinion of one of the most eminent living English experts in international law is entitled to at least as much respect as that of any other judge; and it is quite plain that some day a decision will have to be pronounced in the face of what is, so far as Niboyet v. Niboyet is concerned, an equally balanced conflict of authority.
' The cases where a wife may, after dcscrtion by her husband, retain or even acquire a domicil distinct from his for such purposes (see Le Sucur v. Le Sucur, L.R. r. P.D. :39) are omitted from the consideration of the present subject. They are not pertinent to that branch of it which is discussed here.
It may be convenient to mention here, very briefly, the few material facts of the particular case. The husband was French by nationality and domicil of origin, and married the petitioner, an Englishwoman by birth and domicil, at Gibraltar, in I856. From 1862 to I869, the husband filled the post of French Vice-Consul at Sunderland, and, from I875 till the institution of the suit, the post of French Consul at Newcastle. The alleged adultery was committed in England. The husband had admittedly never acquired an English domicil, but he and his wife (so far as these expressions are legally consistent) were resident in England, except so far as residence implies or includes domicil. The admission by the petitioner that the domicil of the husband had remained French was probably based on the rule of international law that a consul does not, by residence qnd consul, acquire a domicil in the country where he so resides.* It may, however, be incidentally remarked on this point that there is nothing in the rule of law referred to to prevent the acquisition by the husband of an English domicil by any residence or stay in England during the interval between his two terms of consular office; and that if he did in fact reside in England during any portion of that interval, the petitioner was hardly wise to admit that her husband’s domicil had always remained French. A domiciled Englishman can act as consul for France in England, just as a foreigner can act as consul for England abroad, without his legal domicil being in any way affected; and M. Niboyet, if he had acquired an English domicil between 1869 and 1875, would not have lost it by accepting the office of French consul in the latter year, any more than if he had been born within the sound of Bow Bells.’r This is, however, a by-point, it being an admitted fact on the pleadings in Niboyet v. Niboyet that the husband’s domicil did continue French, and that the statement of his “ residence” in England must be taken, subject to the first admission. Under these circumstances, it is proposed to show that the English Court had no jurisdiction to entertain a petition for his divorce at the instance of his wife. To establish this, an attempt will be made to 'prove (i.) that domicil is, by authority and analogy, the only and the necessary test of jurisdiction; (ii.) that the distinction drawn by the majority of the Court of Appeal between domicil and home is, from a legal point of view, a false and vicious one.
(i.) The first of these propositions is the natural result of four minor ones, which may be stated as follows :—
I. N0 English Court has ever recognised the validity of a foreign divorce, whether the marriage was one contracted in
* Maltass v. Maltass, i Rob. E. 79. Heath v. Sampson, r4 Beav. 441. 1' See Sharpe v. Crispin, L.R. I, P. 8: M., 6n.
England or not, where the domicil of the parties was English at the time the divorce was pronounced.
2. N o English Court will refuse to recognise the validity of a foreign divorce, the parties were at the time it was pronounced domiciled within the jurisdiction of the foreign C ourt pronouncing it.
3. N 0 English Court, before the present case, has ever assumed to pronounce a divorce in any instance where the domicil of the husband was not English at the time, with a single exception. In that instance,’ the husband, though after deserting his wife he had acquired an American domicil, was and remained English by nationality.
4. No foreign Court, and no foreign jurist, of any repute, would recognise the validity of a divorce pronounced by an English Court, unless the condition of English domicil were satisfied. If that condition were satisfied, the English divorce would in all cases be recognised.
The foregoing propositions, if established, will place the last decision of the Court of Appeal in the following light. English Courts have hitherto regarded domicil as the one necessary condition to found the jurisdiction for a foreign divorce. Foreign Courts have hitherto regarded domicil as the one necessary condition to found the jurisdiction for an English divorce (and, it may be added, for a foreign one). According to Niboyet v. Niboyet, English Courts are not henceforward to regard English domicil as an essential condition to found jurisdiction for an English divorce. That is to say, the English Court is to assume jurisdiction which it refuses to admit that a foreign Court, under similar circumstances, is entitled to assume; and which foreign Courts neither assume themselves, nor recognise if assumed by others.
It is quite plain, that if this is the true effect of the decision animadverted upon, it is absolutely destructive of the whole principle upon which international law, private as well as
' Deck v. Deck, 2 Sw. & Tr. 90.