CHAPTER XXII.

FOREIGN DIVORCE-ENGLISH LAW.

DIX. THE English Law upon Divorces obtained by the sentence of a Foreign Tribunal has been reserved, on account of its moment and peculiarity, for consideration in this chapter.

The fundamental public policy of England, with respect to the question of Divorce, has recently undergone an entire change; the bearing of which ought, it should seem, upon all sound principles of Comity, materially to affect the decisions of her tribunals upon the validity of Foreign Divorces.

The question, of course, still remains whether England will allow an English Marriage between English persons, or between an English person and a foreigner, to be dissolved upon other grounds than those which in her recent legislation she has declared to be proper causes of Divorce; but the argument that any Divorce is contrary to the public policy—an argument hitherto of no mean weight—is in all reason, justice, and common sense entirely taken away.

DX. There are three divisions under which the English Law with respect to the validity of a Foreign Sentence of Divorce may be considered.

a. Foreign Sentences of Divorce a mensâ et toro.

B. Foreign Sentences of Divorce a vinculo matrimonii before the recent Statute legalising Divorce.

y. Foreign sentences of Divorce since the passing of the Statute.

DXI. (a) Upon the question of the effect due in Eng

land to a Foreign Sentence of Divorce a mensâ et toro, it is safe to use the language of Lord Stowell:

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Something" (he observed)" has been said on the doc"trine of law regarding the respect due to foreign judg"ments; 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 solemnised, "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 uni

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versally 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. Had there been a sentence against the wife for adultery in Brabant, it might have prevented her from proceeding with any effect against her husband here; but "no such sentence anywhere appears" (a).

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DXII. In an earlier case, the sentence of the Parliament of Paris, declaring a Marriage null, had been pleaded, not as a bar, but as evidence of the French Law on a Marriage

(a) Sinclair v. Sinclair, 1 Consist. Rep. p. 297.

Lord Hardwicke is reported to have said that the sentence of a competent Court in France on the validity of a marriage was, by the Law of Nations, conclusive.

Roast v. Garwin, 1 Vesey's Rep. p. 157.

contracted in France. The suit in England was for a Restitution of Conjugal Rights (b): it was dismissed.

DXIII. The effect of a Foreign Sentence was also much discussed before the Arches Court of Canterbury, and the Judicial Committee of the Privy Council in the very important case of Connelly v. Connelly.

In this case, the wife pleaded in bar to a suit for a restitution of conjugal rights by the husband, that she and her husband had both, subsequently to their Marriage, entered into religious orders, and agreed to live apart; and that the Court of Rome had decreed their separation.

It was contended on the other side

1. That being Americans by origin, and not domiciled at Rome, the Court there had no jurisdiction;

2. That the pretended sentence was no sentence of a Court;

3. That the sentence of a third country was not binding here;

4. That the husband had a right to enforce the original obligations of the Nuptial Contract.

No objection, it should be observed, had been taken to the jurisdiction of the English Court. The Court of Arches rejected the plea in bar. The Appellate Court of the Privy Council allowed the wife to amend her plea, by stating that she and her husband were domiciled at Rome at the time when the alleged sentence was passed; and that by the Law of their American Domicil (the lex loci contractûs), that sentence would be holden valid; but gave no opinion as to what the effect of such further pleading might be (c).

DXIV. (8) With respect to Foreign Sentence of Divorce a vinculo before the passing of the recent Statute.

The Courts in England have refused to acknowledge the validity of any sentence of Divorce a vinculo matrimonii, pronounced upon an English Marriage celebrated in England

(b) Scrimshire v. Scrimshire, 2 Consist. Rep. p. 411, a.d. 1752. (c) 7 Moore's Privy C. Rep. p. 438.

between English-born subjects (d). They have, however, indirectly recognised the validity of a Scotch sentence of Divorce a vinculo matrimonii (e), in a case where the Marriage had been celebrated in England, and the parties to it were a Scotchman by birth, property, and connections, though frequently resident in England, and an Englishwoman. They had been separated for some time, and at the time of the Divorce, the husband was living almost wholly in Scotland, and the wife in France.

Perhaps, quite strictly speaking, there cannot be said to have been any direct English decision upon a case in which the parties were married in England, and having afterwards acquired a bonâ fide Domicil animo et facto in another country, were there, after the acquisition of such Domicil, divorced a vinculo matrimonii according to the lex loci by a competent tribunal (ƒ).

In the celebrated case of Lolley, the husband went from England to Scotland, and, without having acquired a Domicil (g), procured a Divorce a vinculo there, and then married another wife. Lolley was found guilty of bigamy by the twelve judges, and a part of the criminal punishment was actually inflicted upon him.

DXV. In subsequent cases, both Lord Chancellor Eldon (h) and Lord Chancellor Brougham (i) appear to have

(d) Lolley's Case, 1 Russ. & Ry. C. C. Rep. 237.

(e) Warrender v. Warrender, 9 Bligh's Rep. 69; 2 Cl. & Fin. 488; vide post.

(f) See Dr. Lushington's remarks in Conway v. Beazley, 3 Haggard's Rep. p. 646.

This case, as well as that subsequently alluded to of Macarthy v. Decaix, were decided in the early part of 1831.

But Dr. Lushington and Lord Brougham appear in these cases to have taken rather different views of the extent of the decision in Lolley's Case.

(g) See Lord Cranworth's remarks in Dolphin v. Robins, 7 H. L. C. p. 390; 3 Macqueen's H. L. C. p. 563.

(h) Tovey v. Lindsay, 1 Dow's Rep. pp. 124, 125.

(i) Macarthy v. Decaix, 2 Russ. & Myl. Rep. pp. 619, 620.

considered the judgment in Lolley's case as going the whole length of deciding that a Foreign Divorce could not operate to dissolve an English Marriage; and the additional condition of the divorce being between English parties does not appear to have been engrafted upon that decision till the case of Warrender v. Warrender.

DXVI. It has been observed that for more than a century the Scotch Courts have holden that, without reference to the country where the Marriage was celebrated, if the parties were resident, this residence may fall far short of a legal Domicil (k). In Scotland it has, since the Reformation at least, been competent to the Scotch Court to divorce a vinculo matrimonii; and since the decision (1) of the House of Lords and of the twelve English judges, the fifteen judges of Scotland have, nevertheless, expressly re-affirmed this to be the Law of Scotland.

DXVII. The observations of Lords Brougham and Lyndhurst in Warrender v. Warrender (m), it can hardly be denied, shook, to a certain extent, the doctrine of Lolley's case, though the authority of that case was, as will be presently seen, recognised in the recent case of Dolphin v. Robins.

DXVIII. But, at all events, the case of Warrender v. Warrender, decided in 1835, contains the opinion of Lord Brougham, that a sentence of Divorce a vinculo matrimonii, pronounced by the country where the parties were domiciled, ought, even in the case of an English Marriage, upon principles of Comity, to be recognised in this country. The reasoning of the learned judge applies more forcibly to the case of a Scotch Divorce of a Scotch Marriage between

See, however, Lord Brougham's explanation, in Warrender v. Warrender, of his remarks in this case of Macarthy v. Decaix.

(k) Conway v. Beazley, 3 Haggard's Rep. 646.

(1) The case of Edmiston referred to by Lord Lyndhurst in Warrender v. Warrender, 9 Bligh, 150–51.

(m) The Lords in Warrender v. Warrender considered themselves as a Scotch Court of Appeal from a Scotch Court.