Nullity of Marriage: Jurisdiction, Choice of Law and Related Problems

STUART RYAN Port Hope, Ontario

Although a good deal has already been said about the' decision of the English Court of Appeal in De Reneville v. De Reneville,2 this, at least, may be added, that it raises more questions than it answers. Pace Mr. Chitty,3 it seems clear that the case may be cited confidently as an authority for one proposition only, namely that an English court would not entertain a petition for annulment of marriage, based on refusal to consummate or incapacity to consummate, where the respondent was neither resident nor domiciled in England and the marriage was celebrated elsewhere. One of the questions raised by that decision, whether celebration of the marriage in England would enable an English court to entertain a petition to annul a marriage for the same grounds where the respondent was resident and domiciled out of England, was answered in the negative by the judgment of the same court, differently constituted, in Casey v. Casey,4 but that judgment in itself raises fresh questions, the answers to which must be found before the situation is really clear. Taken together, these two decisions appear to establish that the bases of jurisdiction to annul voidable marriages are not in all cases the same as where the court is called upon to annul a mar riage void ab initio. To this extent, the distinction made by Bate- son J. in Inverclydev. Inverclyde 5 appears to have been confirmed, but it is by no means settled that the only court having juris- 1 In the Canadian Bar Review alone, see Gilbert D. Kennedy, Vol. 25, p. 1012 ; R. M. Willes Chitty, Vol. 26, p. 576 ; F. Kent Hamilton, Vol. 26, p. 875; John D. Falconbridge, Vol. 26, p. 907; and R. M. Willes Chitty again, Vol. 27, p. 1238. 2 [1948] P. 100, [1948] 1 All E.R.'56. a (1949), 27 Can. Bar Rev. 1238. 4 (19491 P. 420, [1949] 2 All E.R. 110. 5 (19311 P. 29.

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diction to annul a voidable marriage is that of the domicile of the husband. The law of England and Scotland with respect to jurisdiction, not only in nullity but also in divorce, has been greatly altered, since these decisions were given, by the Law Reform (Miscellane ous Provisions) Act, 1949. In Canada we shall be interested in working out the problems raised by the De Reneville and Casey decisions, although the petitioners in both cases may now and probably have already brought petitions in England under the new Act.

Mr. Chitty's strictures 6 on the jurisdiction grabbing which he at- tributes to the former English ecclesiastical courts remind us that the law administered by those courts was the foundation of the English law of marriage. Those courts before the Reformation were both English courts, in the sense that they were courts held in England for people resident in England, and international courts, in the sense that they were part of a system of church courts established throughout western Christendom and adminis- tering the canon law of the Roman Catholic Church. That law was not part of the English common law but derived its authority from the Church itself. Following the English Reformation, Eng- lish ecclesiastical courts carried on with statutory authority to administer the same canon law, in, so far as it was applicable to English conditions, but modified by statute. Speaking generally, the distinction made by English common law between void marriages and voidable marriages is and always has been unknown to canon law. We may observe this fact clear ly if we examine the modern canon law of the Roman Catholic Church. That law is administered by a hierarchy of church courts throughout the world and is binding on the conscience of any adherent of that church. In some countries it has also civil effects. By that law, with two exceptions, all marriages are valid, indissoluble and not voidable, or else "they are not marriages, or, as we say, void marriages. The two exceptions, which are unknown to English law (apart from statute), are the cases of matrimonium ratum sed non consummatum, which is valid but iincom- plete and may be declared null for good reasons, and the rare cases where the Pauline. privilege may be exercised.? Apart from s (1949), 27 Can. Bar Rev. 1238. 7 See W. L. Scott (1937-8), 2 U. of Toronto L.J. 319 . The Pauline privilege is recognized by Roman Catholic canoniste. as an anomalous case, authority for it being found in 1 Corinthians VII, 12-15, although the privilege

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these exceptional cases, when a church court of that Church declares a marriage void, whether for impotence or any other cause, the marriage is by the canon law of that Church void ab initio. On the other hand, that canon law, in practice, treats each purported marriage as presumptively valid, refuses to let the parties adjudge their own cases and treat their marriage as void even when an English lawyer would consider it void ab initio, does not accept as conclusive a judgment of a civil court annulling a marriage, does not recognize a marriage as void until it has been so declared by the sentence of its own courts, and permits only the parties to the marriage to question it, except that, if a case is of a public nature, the official promotor justiciae of the diocese may do so. Canon law, before the Reformation, followed substantially the same doctrine and practice as the canon law just outlined, so far as the points in question are concerned. In England, from shortly after the Norman Conquest, not only were the validity of all marriages and all cases of legitimacy determined by canon law, but the civil courts also acquiesced in the claim of the church courts to exclusive jurisdiction to try the issues. All petitions for annulment (divortium a vinculo inatrintonii) were presented to ecclesiastical courts. Moreover, if in a civil court a question of legitimacy arose or a question of dower or succession was found to depend on the validity of a marriage, proceedings in the civil court were stayed and the issue of legitimacy or validity was referred to the ecclesiastical court.8 After the death of one of the parties, a petition for annulment could not be brought in a church court merely to determine collateral problems such as dower. A question of legitimacy could be raised after the death of one or both parents, but the marriage could not at that time be questioned for impotence, consanguinity or affinity. If the question of legitimacy turned on whether the marriage of the parents was void because of a previous subsisting marriage of one of the parties, this question could be tried. Canon law acknowledged no difference in the quality of the marriages. English civil courts became increasingly dissatisfied with canon

may be exercised in cases not obviously contemplated by St. Paul . It is necessary that a fiat be given by the Pope in either of the exceptional cases before the petition is presented and that judgment be given by a papal court at Rome . For this reason, persons domiciled in England could not by English law take advantage of these exceptions after the Reformation . By English law, as in Roman law, matrimonium ratum sed non consummatum is valid and complete (subject to the English Matrimonial Causes Act, 1937) . Divortium causa professionis is dissolution not annulment. 8 See Adams, Nullius Filius (1945-6), 6 U. of Toronto L. J. 361 .

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law doctrine and practice with regard to marriage and legitimacy . They found ways of - evading the exclusive jurisdiction of ecclesiastical courts to try questions of legitimacy. By the 14th cen- tury, they established the common law rule that if a marriage were annulled for any reason by an ecclesiastical court there was no dower and the issue were illegitimate. But the exclusive jurisdiction of ecclesiastical courts to pronounce on the validity of marriages was unchallenged until after the Reformation. Following the Reformation, English civil courts began to determine collateral issues, such as dower, succession and legitimacy, when marriages were questioned because of the nature of, the union, nonage, lack of mental capacity, absence - of consent, duress, mistake, fraud, pre-contract or want of form. A marriage found defective for one of these reasons was considered to have been no marriage, or, as we say,, void ab initio. The question could be raised even after the death of both parties, and children of a union found void for one of these reasons were simply illegitimate. But such an inquiry could be made by an English civil court only in proceedings other than nullity proceedings. Only an ecclesiastical court could entertain a petition to declare a marriage void. English civil courts, until Lord Lyndhu_rst's Act (1835), 5-6 William IV, c. 5, refused to inquire into the validity of marriages questioned for consanguinity or affinity. They treated such marriages as valid - unless they-had been set aside in the -ecclesiastical courts .9 After that Act they treated marriages attacked for these reasons as void in the same way as marriages attacked for pre-contract. As no such legislation- was enacted respecting marriages questioned for impotence, English civil courts treated them as valid until they were declared void by _ ecclesiastical courts . The latter courts, when annulling a marriage for impotence or for any other reason, continued, so long as they had jurisdiction, to declare the marriage void ab initio.- . When the jurisdiction of the .ecclesiastical courts in matrimonial causes was transferred to the new divorce court by the Matrimonial Causes Act, 1857, 20-21 Viet., c. 85, that court took over the canon law doctrine, and a judgment in an action of nullity based on impotence now annuls the marriage as void ab initio, Although until the judgment the marriage is treated as valid: The original basis for,the distinction made by English law

s Although in Paremouth v. Watson (1811), 1 Phillim. 355, it seems that a civil suit to ânnul a marriage between a man and his deceased wife's sister was brought by his sisters to determine succession to property.

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between void and voidable marriages was therefore one of jurisdiction and had nothing to do with the quality of the marriage. What we now call a void marriage is one which an English civil court would before 1857 have found to be void at any time in any proceedings, not necessarily involving either o£ the parties to the marriage and even after the death of both. What we in Canada call a voidable marriage, and what would in England, apart from the Matrimonial Causes Act, 1937, be still the only voidable marriage, 10 is one which before 1857 an English civil court would treat as valid until it had been declared void by an ecclesiastical court in proceedings instituted by one spouse in the lifetime of the other for the purpose of obtaining a declaration of nullity. We carry this distinction very far. A party to a voidable marriage may not adjudge his own case, although if he subsequently obtains a decree of annulment his prior acts may be validated." Children of a voidable marriage are legitimate unless it has been annulled. In England, such children are now legitimate in any event, under the Law Reform (Miscellaneous Provisions) Act, 1949. But a party to a void marriage may by our law treat himself as unmarried without going to court. Children of the union are simply illegitimate, even under the statute just mentioned." We have thus departed from canon law theory and practice, and are so far in danger of forgetting the nature of nullity of marriage that Mr. Chitty suggests 13 that ecclesiastical courts, in annulling marriages for impotence, were really arrogating to themselves in a devious way power to dissolve valid marriages. It is submitted with respect that he overlooks the fact that by canon law incapacity to consummate is incapacity to enter into a complete marriage and that a marriage is annulled for impotence because the respondent is in effect incapable of marrying. The English Matrimonial Causes Act, 1937, has introduced new grounds of annulment, which are : wilful refusal to consum- to See Halsbury (2nd ed.), Vol. X, p. 640, s. 937. However, it has been suggested that a marriage questioned for fraud or duress should be classed as voidable. See Falconbridge, Conflict, of Laws (1947) 625(d), citing,Eversley on Domestic Relations . See also Kahn-Freund (1950), 13 Mod. L. Rev. 224. Such marriages have heretofore been classed as void because an Eng- lish civil court would before 1857 have inquired into their validity without a sentence of an ecclesiastical court. ~~ Newbould v. A. G., [19311 P. 75. la In Ontario it has been held in Wright v. Ingwersen, (1948] O.W.N . 602, and McIntosh v. Thompson, (1950( O.W.N. 588, that actions to declare the nullity of a marriage void ab initio are not subject to the rules of practice governing matrimonial causes. In the latter case judgment declaring nullity was given on motion in default of defence, without evidence or trial, not- withstanding rule 792. A similar motion was refused by Gale J. in Beckman v. Beckman, [1950] O.W.N. 675. 11 (1949), 27 Can. Bar Rev. 1238 et seq.

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mate; mental disease of the respondent at the time of the .marriage, unknown to, the petitioner ; that the respondent was at the time of the marriage pregnant or suffering from venereal disease, unknown to the petitioner (the petitioner, one presumes, not being responsible for the condition) . The nature of these defects has not been clearly defined. The court in Hutter v. Hutter 14 at- tempted to define refusal to consummate as either a defect in marriage, an error in the quality of the respondent, or a matter pertaining to capacity to marry. The .definition is not very happy. Refusal to consummate may not arise from incapacity. It is more probable that it is a defect in consent and that English law has now by statute reached a position analogous to canon law, in which matrimonium ratum sed non consummatum is incomplete and may be set aside. A further analogy from canon law relates to canon 1081, which provides that unless the contract involves the right to actions fitted for the procreation of children there is no marriage because what the parties consented to was not a true marriage.15 ®n the whole, the- former analogy seems preferable. It is suggested therefore that by English law, as a result of the statute, consent is not complete until it has been expressed in, consummation. The other new grounds for annulment appear to be statutory "conditions precedent" implied by law in the consent. In each case the marriage appears to be voidable and not void ab initio. That annulment of a marriage for impotence has retroactive effect ab initio is illustrated by the decision in Newbould v. At- torney-General,16 in which the petitioner was declared legitimated by 'subsequent intermarriage of his parents, although a . prior marriage between his father and a woman not his mother was not annulled because of the impotence of the woman until after the petitioner was born. As the Legitimation Act, 1926, did not legitimate a person_ one of whose parents was at the time of the birth of the child married to a person not one of the parents, the petitioner would have continued illegitimate unless the decree of.nullity made after his birth had had the effect of declaring that there had been no prior marriage. It is possible for the best writers to,

14'[19441 P. 95, [194412 All E.R. 368. is We could not carry the analogy as far as canon law does, because it has been held by the Rota that if there is a condition in the consent that contraceptives are to be used at all times there is no marriage, Coram Julien, 1925, Decisiones Rotae, Vol. XV11, p. 372, while in Baxter v. Baxter, [19481 A.C . 274, the House of Lords refused to annul a marriage on similar grounds. Canon law treats such a marriage as void ab initio, but the English statute makes a marriage voidable only for refusal to consummate. 16 [19311 P. 75.

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omit on occasion to give full recognition to the retroactive effect of such a decree. Dr. Falconbridge,17 in discussing the effect of a marriage alleged to be void ab initio because of a previous marriage of one of the parties, says, "The question before the court is simply whether the previous marriage was valid, void ab initio or voidable, and, if valid or voidable, whether it was dissolved by a competent court before the celebration of the second marriage". With respect, it is suggested that if the previous marriage had been voidable and had been annulled by a competent court after the celebration of the second marriage, the second marriage would be valid. Dr. Falconbridge also draws a distinction" between the effect of an annulment for impotence, which still has the retroactive effect of a canon law annulment, and one granted for one of the new English statutory defects, which he thinks should have effect only from the date of the decree. With respect, the distinction is hard to follow. Parliament was legislating on the whole field of dissolution and annulment. It could have provided for dissolution only in those cases, but chose to declare the defects as grounds of nullity. A marriage is declared null because there never was a marriage. This is the view taken in Hutter v. Hutter and it is suggested that it is correct. At canon law a marriage entered into through duress is abso- lutely void, even if the parties have lived together and had children." The same appear to be true of English law, but it has been suggested 20 that marriages entered into through fraud, error or duress should be voidable only. In some jurisdictions, fraud is interpreted very widely. Recently I came across an unreported New York case where the marriage was annulled for fraud on the ground that the husband had, when proposing, fraudulently promised the wife that after marriage he would establish a home and raise a family and that the wife had relied on this promise when she consented to marry him, and had not discovered the fraud until after two years' cohabitation . If a marriage can be annulled anywhere for fraud of that kind, it should, it seems, be voidable only. In cases of fraud, duress or error, if the parties reside together and the marriage is not questioned by one of them, there does not seem to be any reason why it should be open to question by anybody else. Neither subsequent cohabitation

17 (1948), 26 Can. Bar Rev. 923. 18 (1944), 22 Can. Bar Rev. 467-8 and 926. is The Marlborough case, Rota Decisions (1926) A.A.S. 601 . ~° Footnote 10.

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nor any other act could ratify a nullity, and yet such "a marriage should be valid if treated as valid ,by the parties. The distinction drawn by English law between void and voidable marriages, whatever its origin, is reasonable. Some of the consequences o£ the distinction are, however, awkward. If there is no marriage, the woman does not by virtue of the ceremony acquire the domicile of her husband,21 but she may do so by choice if she lives in the country of his domicile. If the marriage is voidable, the woman is treated as the wife until, the marriage is annulled. She therefore acquires the domicile of the husband by virtue of the marriage and cannot be treated as halving a separate domicile before annulment.22 And yet, if the marriage is annulled, and if she has never lived in the country of her husband's domicile, the decree must have the effect of declaring retroactively that she was never domiciled in that country . These problems of domicile complicate questions of nullity jurisdiction.

The fact that a distinction is made in English law and not in canon law be void marriages and voidable marriages is responsible in part for the uncertainty of our law on the subject of nullity jurisdiction. Jurisdiction to annul a marriage was originally accorded by canon law, and still is by Roman Catholic canon law, to the court of the diocese or other ecclesiastical division in which the respondent had his domicilium. This word was taken over by canon law from Roman law and was used in the sense of "fixed place of abode" or "residence", and this meaning has become the basis of jurisdiction of the surrogate courts exercising in Ontario the testamentary jurisdiction which the former ecclesiastical courts had in England. Since the Reformation the meanings of the words "domicile" and "residence" in English law have moved far apart. The "domicile" of modern English law is unique and in some respects unreal. Residence, on the other hand, has become more loosely defined, and means different things for different purposes. One may "re-

21 It has been suggested that for purposes of jurisdiction and application of the rule in Salvesen (or Von Lorang) v. Austrian Property Commusioner, [19271 A. C. 641, the decree of the court of the husband's domicile should be treated as if the wife had by virtue of the purported marriage acquired the domicile of the' husband . This suggestion has not yet been adopted . On the other hand, the rule here stated has been relied on to permit the "wife" to sue in England when the "husband" was domiciled elsewhere . 22 De Reneville v. De Reneville and Casey v. Casey. The suggestion to the contrary in Easterbrook v. Easterbrook, [19441 P.10, [194411 All E.R . 90, must be taken as disapproved.

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side" in several countries at once, at least for the purpose of being taxed. One could have only one domicilium. If a man had two or more places of residence, his domicilium was at his principal estab- lishment. English ecclesiastical courts followed the development of both terms, and it appears that in 1857 they were exercising jurisdiction based on either domicile or residence in the modern sense, and also, when other grounds failed, on celebration of the marriage within the jurisdiction.23 The assumption of jurisdiction on the last mentioned ground was a departure from the strict theory of canon law, but was established before the setting up of the new divorce court. The new court took over canon law rules of jurisdiction, and it seemed at first that they would be applied not only to nullity proceedings but also to the new remedy of divorce. It was not until 1895 that it was conclusively established that domicile was the sole basis of divorce jurisdiction.24 No distinction was made before 1931 between jurisdiction to annul void marriages and to annul voidable marriages, and domicile, residence and place of celebration were all, on occasion, accepted as bases of jurisdiction.25 English courts have therefore entertained petitions in cases in which the concurrent jurisdiction of a foreign court would have been recognized as well as cases in which, if a foreign court had in a converse case exercised jurisdiction, an English court would not have recognized its right to do so. In keeping with the principle that no nullity decree is final at canon law,26 English courts in cases such as Simonin v. Mallac21 and Stathatos v. Stathatos 23 at first refused to accept a foreign judgment affirming or denying the validity of a marriage as conclusive outside the jurisdiction of the court that pronounced it. An important change in the attitude of English courts to the subject was marked by the decision of the House of Lords in Salvesen (or Von Lorang) v. Austrian Property Commissioner.29 Regarding status as a res, the Lords established the principle that

23 Halsbury (2nd ed.), Vol. VI, p. 303, s. 357. . 24 Le Mesurier v. Le Mesurier, [1895] A.C. 517. 25 Halsbury, loc cit. Simonin v. Mallac (1860), 2 Sw . & Tr. 67, Sottomayor v. De Barros (1877), 3 P.D. 1, and Ogden v. Ogden, [1908] P. 46, were cases in which jurisdiction was assumed on the basis of celebration of the marriage in England. 26 Illustrated by Sinclair v. Sinclair (1798), 1 Hag . Con. 294 . The Roman Catholic Codex Canonici Juris provides that such a decree may be set aside at any time on proper evidence. 87 (1860), 2 Sw. & Tr. 67. 28 [19131 P. 46. 29 [1927] A.C. 641.

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a judgment of nullity pronounced by the foreign court of the domicile is a judgment in rem conclusive throughout the world by - English law, if the proceedings do not offend against British notions of substantial justice, even when the marriage was celebrated in- another .foreign' country and was declared void ab initio for defect of form, the proper law being the lex loci celebrationis and not the foreign lex fori. In that case, both the man and the woman had in fact changed their domiciles to the country of the forum, and the fact that the marriage was void ab initio had no effect on the domicile of the woman. This judgment is not an authority for the proposition that the court of the domicile has exclusive jurisdiction, although Lord Phillimore's speech indicates that he thought it should have. Lord Phillimore's view was the basis of decision in Inverclyde v. Inverclyde,30 where Bate- son J. refused to entertain a petition on the ground of impotence because the parties were domiciled in Scotland by English law, the respondent having residences in both England and Scotland. , This was the first case in which the distinction, now so much discussed, between jurisdiction where the marriage is alleged to . be void ab initio and jurisdiction to annul a voidable - marriage was raised by an English court. Bateson J. was of the opinion that status with respect to validity of marriage should be determined by the court of the domicile. That is a step beyond saying that this status is determined by the lex domicilii and is based on a desire to treat annulment of voidable marriages as equiva- lent to dissolution of valid marriages." It is difficult to understand Mr. Chitty's remark" that the courts have accepted Inverclyde v. Inverclyde without hesitation . There does not seem to have been a subsequent English case in which the respondent was resident in England and jurisdiction has been refused on the ground that he was domiciled abroad.33 The Inverclyde rule was not followed - in Easterbrook v. Easter- brook and Hutter v. Hutter where residence of the respondent was accepted. In Robert v. Robert34 the court went so far as to enter- 10 [19311 P. 29: 31 There may have been a good ground for refusing to entertain Lady Inverclyde's petition without making domicile the sole test of jurisdiction . The respondent's principal place of residence was apparently in Scotland. The fact that he also maintained a residence in England would perhaps not have been sufficient to constitute residence in England in the sense of the canon law domicilium . 32 (1948), 26 Can. Bar Rev. 1242. 33 The legal profession in England has never -been reconciled-to it. See criticisms cited by Halsbury (2nd ed.), Vol . VI, pp. 303-4(g) and Vol . X, p. 640(r) . See also Kahn-Freund (1950), 13 Mod. Law Rev. 227-9 and Jackson, id., 246 . Mr. Chitty himself mentions Dicey's criticism . 34 [19471 P. 164, [194712 All E.R. 22.

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tain a petition when the petitioner only was resident in England and the respondent both resident and domiciled in Guernsey. The trial judge in the De Reneville case" refused to follow Robert v. Robert, but did not go so far as to adopt the rule in Inverclyde v. Inverclyde. All these cases were decisions of single judges. Then came the decision of the Court of Appeal in De Reneville v. De Reneville. The court disapproved Roberts v. Brennen36 and Robert v. Robert. Of course, as explained by Prof. Moffat Hancock,37 Roberts v. Brennan had been incorrectly cited as an authority for jurisdiction based on the residence of the petitioner only, but if it had been such an authority it is not so now. Inverclyde v. Inver- clyde was cited with approval in the De Reneville case, but not made the basis of the decision. The Easterbrook and Hutter cases, in both of which the respondent was resident in England, were distinguished but not overruled. Cases of nullity ab initio were likewise distinguished. The judgments of Lord Greene M.R. and Bucknill L.J. were both expressly limited to the case where the respondent was resident and domiciled abroad and the marriage was celebrated abroad. Reference was made to the assumption of jurisdiction in a proper case on the ground of "hardship", whatever that may mean. If there was any possibility that celebration of the marriage in England was a sufficient basis for jurisdiction of an English court to annul a voidable marriage where the respondent was both domiciled and resident out of England, that possibility seems to have been removed by the subsequent decision of the English Court of Appeal in Casey v. Casey. The judgments in this case, containing a fresh review of the authorities, are as interest- ing as those in De Reneville v. De Reneville. Both judgments clearly distinguish between jurisdiction in cases of nullity ab initio and in cases of voidable marriages. Bucknill L.J., with whom Cohen L.J. agreed, inclined to the view that domicile should be the basis of jurisdiction to annul voidable marriages, with a possible exception where both parties reside in the jurisdiction . Somervell L.J. took the stand that the rule in Inverclyde v Inverclyde was not the basis of decision in the De Reneville case, and that residence of the respondent was a sufficient ground of jurisdiction, with domicile as an alternative ground. Both judgments expressly declared the point to be unsettled. The court does not seem to

35 1194712 All E.R. 112. 36 [19021 P. 143. 37 (1943), 21 Can. Bar Rev. 154.

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have considered that denial of jurisdiction would work a "hard- . ship" on the petitioner. The judges do not appear to have been aware that she would have had no cause of action anywhere in Canada. If they had known this, it would probably have made no difference. Another point appears to have been decided by inference. The respondent was resident and domiciled in "Can- ada", but "Canadian" law was not alleged or proved. Bucknill L.J. toyed with the idea that by "Canadian" law a marriage might be void ab initio for refusal to consummate. Assuming, what we know to be incorrect, that such a marriage would be void by "Canadian" law, would it have made any difference in the result? If the marriage had been void, no change in domicile of the. petitioner would have taken place, and jurisdiction might have been exercised on the same basis as in White v. White," Hussein v. Hussein39 and Mehta v. Mehta.11 The court in Casey v. Casey, although discussing the suggestion, passed it over, cor- rectly it is submitted, and classified the marriage, for the purpose of determining whether it had jurisdiction, by English law. The court must classify the marriage as void or voidable by the lex fori before it can determine whether it has jurisdiction .41 For the same reason, the court in the De Reneville case decided that it had no jurisdiction by classifying the marriage by English law, and refused a subsequent motion to- permit French law to be proved, even though both judges agreed that the validity of the marriage would have been tried by French law. The record in England falls somewhat short of acceptance without hesitation of the rule in Inverclyde- v. Inverclyde . In Can- ada, likewise, the reception of the case has been mixed. I have been referred to no decisions on the point in the Mari- time Provinces. The Inverclyde case was approved in Ontario in Fleming v. Fleming.42 That case involved the question of recogni tion of an annulment granted in California when the respondent husband was neither domiciled nor resident in that state, but Macdonnell J.A., at trial, expressly made domicile the test. It was followed also in Manitoba in Diachuk v. Diachuk.43 The point does not seem to have arisen in a reported case since 1931 in Saskatchewan or Alberta. In the former province, before the In- verclyde decision, jurisdiction to annul marriages for impotence

33 [19371 P. 111, [193711 All E.R. 708. 30 [1938) P. 159, (1938] 2 All E.R. 344. 40 [194512 All E.R. 690, 174 L.T. 63. 41 This classification is for the purpose of determining jurisdiction only 42 [19341 O.R. 588, [19341A D.L.R. 90. 43 [19411_2 D.L.R. 607, [194412 W.W.R. 599, 49,Man. R. 102.

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had been assumed in G. v. G.44 and Reid v. Francis45 on the ground of celebration within the jurisdiction, but we may question whether these cases would be followed to-day. In British Columbia, the Inverclyde decision was made the basis of judgment at trial in Shaw v. Shaw,41 but the Court of Appeal47 found it necessary to say only that the defendant was not domiciled or resident within the province and the marriage had been celebrated elsewhere. In fact, the Court of Appeal appears to have preferred the Hutter judgment to that in the Inverclyde case. In Sheppard v. Sheppard,48 the British Columbia court did not apply the Inverclyde rule. Finally, in the same province, Farris C.J., in a judgment which is said to have been approved by all the judges, Gower v. Starrett,49 denied any distinction in jurisdiction between annulment of voidable marriages and declarations of nullity of void marriages, and re-asserted for all cases of nullity the familiar grounds of jurisdiction, namely, domicile, residence or celebration. There is, therefore, no more firm evidence of unhesitating acceptance of Inverclyde v. Inverclyde in Canada than there is in England. Power considers the point unsettled,59 as well he may. None of the cases cited on the question of jurisdiction to annul voidable marriages has suggested any limitation on the right of the court to assume jurisdiction to make a declaration of nullity on the basis of residence of the respondent within the jurisdiction where the marriage is void ab initio. It is agreed by all that the court of the domicile of both parties has such jurisdiction where both parties have the same domicile. In White v. White, Hussein v. Hussein and Mehta v. Mehta, already mentioned, all cases of nullity ab initio, the court went a step farther. Although in each case the woman was the petitioner and the respondent was domiciled and resident abroad and the marriage had been celebrated out of England, the court found by an argument by anticipation that, if the marriage was void, the petitioner was domiciled in England.51 If so, she had a right to have her status determined by the court of her domicile. On inquiry the court found the marriage to be void, and, therefore, that it had jurisdiction. The same reasoning was followed in Alberta in the Finlay case, re- 44 (1928), 22 Sask. L.R. 376, [192811 W.W.R. 651 . 45 [1929] 4 D.L.R. 311, [1929] 3 W.W.R. 102, 24 Sask . L.R. 1. 45 [194511 W.W.R. 156, [194511 D.L.R. 413 . , 47 [194613 W.W.R. 577, [194611 D.L.R. 163. 41 [1947] 2 W.W.R. 826. 4s [194811 W.W.R. 529, [194812 D.L.R. 853. 50 power on Divorce (1948) 292. 5i These cases have been severely criticized . See Falconbridge, Conflict of Laws (1947) 676(c). However, they were mentioned without disapproval by the English Court of Appeal in the De Reneville and Casey decisions.

1950] Nullity of Marriage - 977

ported along with Spencer v. Ladd.52 In .Manitoba, in Hutchinggs v. Hutchings,53 and in Ontario, in Manella v. Manella,54 this kind of reasoning did not find favour. In fact, by a reverse argument by anticipation, the plaintiff in each action being the man, the courts found that if the marriage was void the defendant was not domiciled within the jurisdiction, and since she was not in either case resident there, the suits were not entertained. In the Mani- toba case, the plaintiff appears to have obtained by inference the declaration he wanted. The Ontario case is not a satisfactory authority, for several reasons. The trial judge dismissed the action because mental incapacity of the defendant to marry, which was the ground of nullity relied on, was not proved to his satisfaction: The plaintiff appealed, and the Court of Appeal informed him that all proceedings after delivery of the statement of claim were null and void because no guardian ad litem of the defendant had been appointed. When written reasons for judgment were de- livered, Middleton J.A. dealt first with the failure to have â guardian appointed, then found that mental incapacity at the time of marriage was not proved, and, near the end, added for good measure that the court had no jurisdiction anyway, because the wife had not changed herdomicile as a result of the husband's acquiring a domicile of choice in Ontario; giving as the apparent reason for this statement the fact that the husband had not changed his domicile until after the wife became insane As this fact could have no effect on the wife's domicile, it would seem that the court's remarks on it bear the same relation to the issues as the criticism of the wife's parents with which the judgment was concluded. In each of the Hutchings and Manella cases, it is suggested that if the plaintiff was domiciled within the jurisdiction, he should have been entitled to a declaration of his status by the court of his domicile, just as he would have been entitled to bring an action for divorce in that court, and that the Manitoba and Ontario courts went the wrong way about in reaching their conclusions. Spencer v. , Ladd was disapproved by Farris C.J.S.C. in the British Columbia case of Gower v. Starrett. Yet, as White v. White and Hussein v. Hussein have been mentioned with apparent ap proval by the English Court of Appeal in the De Reneville and Casey decisions, Spencer v. Ladd would appear to be a better precedent than Gower v. Starrett. However, a judgment of nullity, 52 [194712 W.W.R. 817, [194811 D.L.R. 39. sa [193014 D.L.R . 673, [193012 W.W.R. 565, 35 Man. R. 66. bA [19421 O.R. 630, [194214 D.L.R. 712.

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where jurisdiction had been assumed by a foreign court apparently on the basis of domicile of the husband only, was not accepted as conclusive in England in the recent divorce case of Chapelle v. Chapelle.6b This case involves the principle of the circulas inextri- cabilis, and may be called "the writer's dream". Cheshire had said :56 "It is impossible to say what course an English court will adopt when confronted with a problem of this nature". The petitioner husband had obtained a decree of nullity in Malta where he was then resident and domiciled, at a time when the respondent wife was resident and apparently domiciled in Eng- land, if she were treated as unmarried. The marriage, which had been celebrated in England, where the wife was domiciled at the time, would have been valid by English domestic law, but the husband had been domiciled in Malta and the Maltese court had applied Maltese domestic law, by which the marriage was void ab initio, for defect of form. Maltese law would also have held the marriage intrinsically invalid because the wife had been divorced and her former husband was alive at the time of the second ceremony. It is not clear why the Maltese court did not deal with this aspect of the case. If it had done so, its decree would have been on a sounder basis. The husband later acquired a domicile in England, and, being in doubt whether the Maltese decree was valid, sued the wife in England for divorce on the grounds of adultery and desertion. The wife, in defending the divorce petition, pleaded that there was no marriage to dissolve because of the Maltese decree. She relied on the Salvesen case, but was met by the argument that: (1) the marriage, if void, was void ab initio; (2) therefore, if it was void, she was not domiciled in Malta by operation of law, as a married woman, and it appeared that, as a feme sole, she was domiciled in England when the Maltese decree was made; (3) therefore, if the marriage was void, the Maltese decree was not made by the court of her domicile, and the Salvesen rule did not apply. Willmer J. refused to dismiss the petition on preliminary argument of the point, and said that at the trial the wife might be able to prove that she was domiciled in Malta, as a feme sole, when the Maltese decree was made. On the other hand, an analysis of the husband's argument would have led to the con- clusion that if the wife was not by English law domiciled in Malta at the time of the Maltese decree it was only because the marriage was void ab initio. If the Maltese decree was not conclusive be- ss [19501 1 All E.R. 236. See discussion by Joseph Jackson (1950), 28 Can. Bar Rev. 679, where the facts are analysed and proposals for reciprocity are made. 56 (3rd. ed.) 464.

1950] Nullity of Marriage ,979

cause her domicile was not then in Malta, the decree must have been correct in declaring that the marriage was void. If the Maltese decree was incorrect in declaring the marriage void, then the wife's domicile was in Malta by English law, and the decree was a judgment in rem declaring her status made by the court of the common domicile and must be accepted under the Salvesen rule as annulling the marriage. By any argument, it would seem that the Maltese decree should have been accepted. There was no question of denial of substantial justice by the Maltese court, since the wife was represented at the trial. By English law, the Maltese court had jurisdiction if the judgments in White v. White, Hussein v.. Hussein and Mehta v. Mehta were correct. It is true that the Salvesen rule, baldly stated, does not extend to the Chapelle situation, but it should be extended to cover it. There seems to have been no case in which it was expressly held as the ratio decidendi that the celebration of marriage within theas=sumptionjurisdiction, without more, is an insufficient ground for of jurisdiction to declare the nullity of a void marriage, but it appears now to be by itself an unreliable basis. Criticism of this ground, of jurisdiction is discussed by Dr. Falconbridge in his Conflict of Laws.57 Bucknill L.J. dealt with the point, obiter, in the De Reneville case : "The only other court, in cases of nullity ab initio, and where there is no common or matrimonial domicile in fact,- seems to be the court of the country where the marriage was celebrated. But such a court might be extremely inconvenient-to both parties, and if neither party were domiciled or resident in the country it is difficult to see what interest that country would have in his or her matrimonial status." In his judgment in Casey v. Casey, 'he took care to explain that the decisions in Sottomayor v. De Barros are of authority now only on the question of the choice of law, and not on the question of jurisdiction . In the Casey decision Somervell L.J. suggested that, where the marriage is alleged to be void ab initio for defect in celebration, the court of the place of celebration may have jurisdiction, but did not approve basing jurisdiction on the place of celebration-in other cases of either void or voidable marriages. To this extent he may be taken as approving the assumption of jurisdiction in Simonin v. Mallac or Ogden v. Ogden (if the defect was properly characterized in these cases), but not in Sottomayor v. De Barros. It remains, in theory, possible that celebration within the jurisdiction, coupled with residence of one party there, might induce 67 (1947) 627.

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the court to assume jurisdiction to declare a marriage void ab initio for defect of "intrinsic" validity. If place of celebration is allowed to confer jurisdiction where the alleged defect is in celebration, it will be necessary to determine what is included in the term "celebration". Does it refer only to the formalities of celebration, or does it include any special qualities or conditions of the consent, such as those discussed in connection with canon law? Simonin v. Mallac and Ogden v. Ogden are the authorities for including consent of parents among the formalities by English law but, as will be seen, these cases are of limited authority. The De Reneville and Casey decisions suggest a narrow interpretation of the term "celebration". In Way v. Way and three other cases decided together," Hodgson J. held that the proper law to determine the validity of consent is the law of the domicile of the parties, from which we would judge that "consent" is not in all respects part of the formalities, although the manner of expressing consent may be. In keeping with the principle of the Salvesen case, the English court, in De Massa v. De Massa," accepted as conclusive a judgment of nullity, for want of consent of parents, pronounced by the French court of the domicile of both parties. In the Casey decision, Somervell L.J. comments that Simonin v. Mallac would be decided differently to-day. He referred, of course, to the fact that in that case the marriage had been declared void by the French court of the domicile of both parties. In the absence of the decree of the French court, we are not free to assume that an English court would characterize consent of parents differently to-day, although it has been reasonably suggestedso that it should do so in some cases. From the foregoing it cannot be said that all problems of jurisdiction in nullity actions are settled, but certain conclusions maybe drawn:- l. A distinction has been established between jurisdiction to annul voidable marriages and to make declarations of nullity of

88 [194912 All E.R. 959. The court assumed jurisdiction without question, although, if the marriages had been void, the respondents would have been domiciled as well as resident in the U.S.S.R. where the marriages had been celebrated. Contrast Manitoba and Ontario decisions in the Hutchings and Manella cases. c° The Times, March 31st, 1931, followed in Galene v. Galene, [1939] P. 237, [193912 All E.R. 148. so Falconbridge, Conflict of Laws (1947) 48-58, where it is shown that the context and provisions of the proper law will indicate that in some cases parental consent is part of the ceremony and in other cases want of consent creates an incapacity .

1950] Nullity of Marriage . . 98-1

marriages void ab initio, and this distinction must apparently be accepted whether it was originally correct or not. 2. With respect to jurisdiction to annul voidable marriages, (a) domicile is a sufficient basis, the domicile of the husband being also that of the wife until the annulment is decreed ; (b) residence of both parties, and probably residence of the respondent alone, within the jurisdiction should be and will probably be accepted as a sufficient basis, but residence of the petitioner alone is insufficient, except possibly in a case of "hardship" ; (c) celebration of the marriage within the jurisdiction is not enough, by itself or coupled with residence there of the petitioner alone, if the respondent is both domiciled and resident abroad, except possibly in a case of "hardship" . 3. With respect to jurisdiction to make a declaration of nullity of a marriage void ab initio; (a) residence of the respondent within the jurisdiction is sufficient ; (b) domicile of either party within the. jurisdiction is apparently sufficient (it appears uncertain, that this rule will be accepted in Ontario, Manitoba or British Columbia unless it is so determined by the Supreme Court of Canada) ; (c) residence of the petitioner alone within the jurisdiction is not enough, except possibly in a case of "hardship" ; (d) celebration of the marriage within the jurisdiction is not enough by itself, except possibly, but doubtfully, where the defect is in the ceremony ; (e) celebration within the jurisdiction coupled with residence of the petitioner there may perhaps be accepted as sufficient. 4. "Hardship" is likely to be a broken reed as a foundation for assumption of jurisdiction, and will probably be whittled down to nothing. 5. The court will classify the marriage as void or voidable, for the purpose of determining whether it has jurisdiction, in accordance with the lex fori. 6. The court will accept as conclusive a judgment of nullity pronounced by the court of the foreign country in which both ,spouses were domiciled at the time the decree was made, even where the ground of nullity is not part of the lex fori.. This rule applies whether the marriage was void or voidable, but if the marriage was void ab initio the judgment may be conclusive-onlk if the wife would have been domiciled in the foreign country as

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a feme sole, and the husband was also domiciled there. It is suggested, however, that if the husband was domiciled in the foreign country, the court of which made the judgment, it should be accepted. Such a judgment is not conclusive in cases of void marriages if only the wife was domiciled within the jurisdiction of the foreign court which pronounced the decree.s1

IV The United Kingdom Law Reform (Miscellaneous Provisions) Act, 1949, has been referred to as the most important act of Parliament passed in connection with conflict of laws. Its effect on jurisdiction in divorce as well as in nullity may perhaps be noted here. Jurisdiction of English courts in divorce was previously based only on domicile, except that :- (a) If the spouses were at one time after marriage domiciled in England and the husband had deserted his wife or had been deported while so domiciled, the English court had and still has jurisdiction under the Matrimonial Causes Act, 1937, residence o£ either party in England at the time of suit not being essential. This provision is similar to that of the Divorce Jurisdiction Act of Canada, 1930, chapter 15, in so far as desertion is concerned. (b) The wife could petition in divorce in England, and still may for five years after a day to be appointed, if the marriage was celebrated on or after September 3rd, 1939, and she was domi ciled in England immediately before the marriage and the husband was domiciled out of the United Kingdom, but only if the wife had not at any time during the marriage resided with the husband in the country of his domicile. This privilege was created by "The G.I. Bride's Magna Charta", otherwise known as the Matrimonial Causes (War Marriages) Act, 1944. (The exception with respect to residence with the husband in the country of his domicile was probably the reason why the petitioner in Casey v. Casey claimed an annulment instead of a divorce.) The new statute preserves existing grounds of jurisdiction in both divorce and nullity and adds that a wife residing in England may petition in England, and a wife residing in Scotland may si Dicey (6th ed.) 383 (d) says that "if the husband domiciled abroad obtains in the court of his own domicile a decree of nullity in respect of a marriage void ab iniiio the English Court will accept the foreign decree as bind- only if the Court is itself satisfied that the marriage is void in the sense Mat no decree of the court would have been required to avoid it" . But, if the marriage was not void in that sense, then by English law it was voidable, .and the court of the husband's domicile would by English law have been the court of the wife's domicile until the marriage was avoided.

1950] Nullity of Marriage . 983

petition in Scotland, for divorce, or for annulment, whether the marriage is voidable or void, if she is resident in the country in which she petitions when the action is commenced and has been "ordinarily resident" there for the three years next preceding the_ petition, and the husband is not domiciled in the United King- dom, the Isle of Man or the Channel Islands. It has been pointed out that the petitioners in De Reneville v. De Reneville and Casey v. Casey may take advantage of this Act, but it would not have helped Lady Inverclyde, and a wife in the position of the petitioner in Robert v. Robert could not now petition in England. It would appear that Parliament and the courts should consider to what extent recognition should be given to foreign judgments of divorce or nullity made under statutory powers equi valent to those of our Divorce Jurisdiction Act, 1930, or under the British Matrimonial Causes (War Marriages) - Act, 1944, or Law Reform (Miscellaneous Provisions)'Act, 1949. The theory of domicile in vogue in the United States permits a married woman., in certain circumstances, to acquire a domicile separate from that of her husband; and a divorce or annulment made by the court of her domicile so acquired is recognized by the courts of the other states and by the federal courts. I do not refer here .to the statutory ."domicile" based on residence. for six weeks or six months which gives jurisdiction to the courts of some states, but to a domicile closely resembling our own although perhaps more easily acquired or changed. Consideration should, it is suggested, be given to the recognition of such a domicile by our courts. " It is improbable that our Canadian Parliament can be per- suaded in the near future to extend the basis for jurisdiction of Canadian courts along the lines of the Law Reform (Miscellaneous Provisions) Act, 1949, but cases of hardship arising here from the application of that Act in the United Kingdom; or similar legislation or rules of law elsewhere, should be entitled to relief.

V Before passing on to discuss the choice of law, it would be of interest to consider a provision of the Civil Code of Louisiana, of which article 80, under the title "Absentees", provides as follows; "Ten years of absence, without any news of. the absentee, is a sufficient cause for the husband or wife of such absentee to contract another marriage, after having been authorized to do so by the judge, on due proof". If the absentee returns, the second marriage so contracted by the . other spouse remains valid, . and

984 THE CANADIAN BAR REVIEW [VOL. XXVIII

the absentee may also re-marry. This remedy is distinguished from divorce or: annulment by Louisiana law. English law has a similar provision, under.the Matrimonial Causes Act, 1937, section 8, whereby a declaration of presumption of death of an absentee spouse may be made and the marriage is thereby dissolved. It has been said, in Wall v. Wall,s2 that this relief is not primarily or in essence, and was not intended to be, dissolution of the marriage. In that case the English court exercised jurisdiction where the wife petitioner was resident in England and the last residence and domicile of the husband were unascertainable. The Law Reform (Miscellaneous Provisions) Act, 1949, has stated the jurisdiction of English courts to give such relief as follows : (1) where the husband is the petitioner he must be domiciled in Eng- land ; (2) where the wife_is the petitioner, the English court may give the relief, if either (a) the husband was domiciled in England when she last knew or had occasion to believe that he was alive, or (b) she is resident in England at the time of petition and has been ordinarily resident there for the three years next before the petition. The war, coupled with persecution in certain continental countries, has made this relief necessary in a deplorably large number of cases. A provision similar to that of the United Kingdom statute has been introduced into the law of Ontario by the Marriage Act, 1950, chapter 42. Section 11, which came into force on October 2nd, 1950, has effect only for the purpose of enabling the appli- -cant to obtain a licence or special permit to be married, and would not validate a second ceremony if the former marriage were subsisting. On application for a special permit to re-marry, the ap- plicant is required to sign a statement that he or she recognizes, if the missing spouse is alive, that the intended re-marriage will be void. The province is thus put in the difficult position of giving permission to go through a form of marriage the validity of which is doubtful. On application for a licence to re-marry, where one party claims that the former marriage has been dissolved or annulled outside of Canada, no licence will be issued except on approval of the Provincial Secretary, who will no doubt try to determine the validity of the foreign decree. The limitation in section 11 of the new Act with respect to validity is caused, of course, by the fact that, except for form of solemnization, the province has no legislative jurisdiction over marriages. However, by section 1 of the Legitimation Amendment Act, 1950, which amends section 5 of the Legitimation Act, R.S.O., 1937, chapter 216, it is pro- 62 [194912 All E.R. 927.

1950] Nullity of Marriage 985

vided that if a marriage is performed in the bona fide belief in the death of a former spouse, where bigamy has not been committed, or pursuant to an-order, under section 11 of the Marriage Act, 1950, and if the former spouse is alive at the time of the second ceremony, the issue of the supposed re-marriage, conceived before the parties to the second ceremony learned that the missing spouse was alive when it took place, are to be legitimate unless the second ceremony would have been invalid for some other reason. This amendment is now also in force. One may ask whether provision for such relief should not be made throughout Canada, whether the second ceremony should not be valid for all purposes when an order such as that provided by section 11 of the Marriage Act, 1950, has been made, and whether the canon law rule according legitimacy to children of a putative marriage entered into in good faith should not be adopted generally throughout Canada. Our immediate question is in what circumstances, if any, an order made under the Louisiana code or the United Kingdom statute would be accepted as conclusive in a Canadian province, if the validity of a second marriage by the petitioner under one of these. statutes were in question here. The effect of the order would appear to be to dissolve the first marriage if the missing spouse proves to be alive, although the order is in form only a declaration of presumption of death. If the husband had: been the petitioner, and had been domiciled within the jurisdiction of the court, probably the order would be conclusive. If the wife had been the petitioner, and the last known domicile of the husband had been within the jurisdiction of the court, the Canadian court would no doubt accept the order on the ground that, no proof of change of domicile of the husband having been made, his domicile must be taken to , have been within the. same territory, if he was alive. What if jurisdiction had been assumed by the Louisiana court on the basis of the wife's domicile in that state according to the law of Louisiana, regardless of the last domiçile of the husband? What if the English court had assumed jurisdiction based on the residence of the petitioning wife, as in Wall v. Wall, or on her residence for three years in England under the new statute? In both cases, it is suggested that the order should be accepted here.

VI When we consider the question of the choice of the law to determine the essential validity of a marriage, Mr. Hamilton appears

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to be on what Pindar would call a "slippery road" when he asks,63 "on a broad principle, when, if ever, does the law of the country of domicile overrule the lex loci contractas?" Ever since Mette v. Mette 61 and Brook v. Brook 65 English courts have said that essential (or, as Dr. Falconbridge would say, intrinsic) validity, as distinguished from validity of form, is governed as a general rule by the law of the domicile. It is true that lex loci celebrationis appears from the American Restatement of Conflict of Laws, articles 120 and 121, to be favoured in the United States, but subject to the exceptions named in article 132 where the marriage is contrary to the law of the domicile of one of the parties because it is polygamous, or incestuous, or even because it is between persons of different races where such marriages are illegal by the law of the domicile, or for some similar reason of strong public policy. The lex loci celebrationis was preferred by Barnard J. in Robert v. Robert, sed dubitanter, as the proper law to determine annulment for impotence or refusal to consummate. In that case, however, he found it to be the same as the lex domicilii and the lex fori. In the De Reneville case, the Court of Appeal disapproved selection of the lex loci celebrationis, as such, but neither judgment in that case was expressed in a manner best calculated to remove confusion. Lord Greene called the problem one of essential validity, and preferred the law of France, either because it was the law of the husband's domicile at the time of the marriage, or, preferably in his view, because at that time it was the law of the "matrimonial domicile", in reference to which the parties might have been supposed to enter into the bond of marriage. He quoted from the speech of Lord Campbell in Brook v. Brook, "the essentials of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled at the itme of the marriage and in which the matrimonial residence is contemplated". "Matrimonial residence", in the speech of Lord Campbell, becomes "matrimonial domicile" in the judgment of Lord Greene. The phoenix of matrimonial domicile thus begins to raise its head from the ashes in which it was, according to Halsbury," supposed to have been consumed. Dr. Falconbridge points out 67 that Lord Greene's view had been urged by Cheshire and Cook. 63 (1948), 26 Can. Bar Rev. 879. 6' (1859), 1 Sw. & Tr. 416. 65 (1861), 9 H. L. Cas. 193. 16 (2nd ed.), Vol. VI, p. 298. 67 (1948), 26 Can. Bar Rev. 920.

Nullity1950]- of Marriage 1987

The alternative suggestion, of the lex domicilii of the husband cannot. be taken to be of general application to. all cases of essential . validity, because incapacity of the woman to marry by the law of -her domicile would in some cases render the marriage void. Refusal to consummate is not per se incapacity, but impotence is a kind of incapacity, even if by our law it renders the marriage voidable only. In the De Reneville case, the husband was alleged, in the alternative, to be impotent. If this disability had. been a ground of annulment by the law. of the wife's domicile but not by that of the husband, which law should have been applied? I suggest the law of his domicile. Conversely, if the wife had been alleged to be impotent, the law of her domicile should be selected. The selection of the law of the matrimonial domicile could fur- nish another answer. Bucknill L.J. said that the wife consented to marry the husband in France, and intended .to live with him there, and also "impliedly intended to take her husband's French domicile on the assumption that the marriage was valid" . (®n that assumption, of course, she would take his- domicile whether she intended to do so or not.) Considering that the law of one country should prevail, he said that the law of the country of celebration, where the parties intended to live and did live together, should determine the validity of the marriage. In these remarks Bucknill L.J. appears to be expressing the factors that determine what was, in the words of Lord Greene, the "matrimonial domicile" of the parties. The place of marriage appears to be one fact among several from which, in his view, inferences fixing the "matrimonial domicile" are to be drawn. There does not seem, however, to be any real link between place of celebration and "matrimonial domicile" ." The judges in the De Rene- - ville decision did not consider place of celebration of sufficient importance to stand alone, but neither did they ignore it. In the Casey decision, on the other hand, the court looked to the "law of Canada" as the proper law, because the domicile of the husband and the matrimonial domicile were "Canadian", although the marriage was celebrated in England. The De Reneville case, standing by itself; could not have been conclusive on the question of proper law, because the remarks on this subject were, in a sense, obiter, and because the law of France could have been selected on any of the grounds of place of celebration, husband's domicile or matrimonial .domicile. The refer- 68 It would appear that in civil law countries the "matrimonial domicile" is the domicile of the husband at the time of the marriage . See (1950), 13 Mod. Law Rev. 383-4, commenting on the South African, case of Frankers Estate v. The Master (1950), 1 S.A.L.R. 220. ' . . ,

988 THE CANADIAN BAR REVIEW [VOL. XXVIII

ence to the proper law in the Casey decision may be considered equally obiter, but at least it indicates that matrimonial domicile will not be determined by place of celebration, and that the law of the husband's domicile or of the "matrimonial domicile" will prevail over that of the place of celebration, where the marriage is to be annulled for his impotence or refusal to consummate. An examination of various other grounds of invalidity suggests that there is no single rule for choice of law in all cases where the essential, or intrinsic, validity of a marriage is questioned. Sometimes the lex domicilii of one or both parties at the time of marriage is chosen, and on other occasions the lex fori prevails, while the lex loci celebrationis may govern when it considers the marriage illegal. A union not recognized as a marriage by English law may still have legal effects in England if it is valid according to the lex loci celebrationis and the lex domicilii of both parties, but it would probably not be recognized in the divorce court. The Ameri- can Restatement of Conflict of Laws suggests that a declaration of the validity of such a union might be made in England, but this is doubted-19 If one of the parties is domiciled in England, the English court, as in the Bethell case,7° would hold the union to have been no marriage. If either party is by his or her lex domicilii incapable of marrying at all, the marriage would, as a general rule, be invalid in England, but lex domicilii does not, as was pointed out in Berth iaume v. Dastous,71 govern capacity to contract in all cases. De- spite the fact that both parties are capable of marrying by the laws of their respective domiciles, the marriage may be intrinsically invalid. If the marriage is illegal where celebrated on grounds of public policy, it may be invalid everywhere regardless of the lex domicilii. At least, English law is considered 72 to require that the spouses have capacity to marry by English law if the marriage is to be celebrated in England, and the marriage in England of children under sixteen or of persons within the degrees of consanguinity or affinity prohibited by English law is said to be invalid by that law, regardless of the domiciliary laws. If both parties are by the laws of their respective domiciles not free to marry each other, the marriage is apparently invalid se A. Berriedale Keith (1935-6), 1 U. of Toronto L.J. 243. Polygamous Indian marriages have been recognized in Srini Vason v. Srini Vasan, (1946] P. 67, [1945] 2 All E.R. 21 and Bandail v. Bandail, [1946] P. 122, [1946] 1 All E.R . 342. 7° Re Bethell (1887), 38 Ch. D. 220. 73 (19301 A.C. 79. 72 A. Berriedale Keith (1935-6), 1 U. of Toronto L.J. at p. 250.

1950] Nullity of Marriage _ 989

by English law. However, if one party is domiciled abroad and one in England and the parties are free to marry by English law but not by the lex domicilii of the party domiciled abroad, it is said on the authority of Sottomayor v. De Barros 73 that an Eng- lish court will hold the marriage valid, at least if it was e.ele- brated in England, even where it is the man who was domiciled abroad. The reasoning in that case on this point has not been universally accepted. It had been held earlier in the same case by the Court of Appeal 74 that the marriage was .invalid on the assumption that both parties were domiciled in Portugal, and the rule that capacity is determined by the lex domicilii was generally stated. The Queen's Proctor intervened and on the second hearing it appeared that one of the parties was domiciled in England and that the marriage had been there celebrated. The lex loci celebrationis was applied. The disability was that the parties were first cousins and could not intermarry by the law of Portugal without a papal dispensation. As the parties were not within the English prohibited degrees, the marriage was held valid. How- ever, in Ogden v. Ogden the Court of Appeal suggested that the reason for the rule is that, where both parties are generally capable of marrying but may not marry each other. by the lex domicilii of one or both of them, the question may be one of illegality rather than incapacity, and the lex domicilii of either party may not necessarily be applied. On this basis it would not necessarily be material whether one party was domiciled in England or whether the marriage was celebrated there. As long as the marriage was valid by the lex domicilii of one party and was .celebrated in a country where it was not illegal, the English court would apparently on this argument hold it valid. The decision in Ogden v. Ogden has itself been justly criticized for two reasons. In the first place, the decree of the French court of -the domicile of the husband in the first marriage, by which that marriage was annulled for want of parental. consent, would now be accepted under the Salvesen rule (the marriage being voidable by French law). Secondly, it seems that, by French law, the husband was incapable of marrying without parental consent, and it was wrong in the circumstances to characterize parental consent as a part of the formalities and apply the Eng- lish law of the place of celebration. Such criticisms do not affect the suggestion, quoted previously, but Dr. Falconbridge 75 has

73 (1879), 5 P.D. 94. This was the second hearing . 74 Sottomayor v. De Barros (No. 1), 3 P.D. 1. 71, Conflict of Laws (1947) 636-643.

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pointed out that in Mette v. Mette the marriage was held invalid as within the prohibited degrees by the English law of the man's domicile, although it was valid by the lex loci celebrationis and the lex domicilii of the woman. Mette v. Mette might have been passed over as an obsolete authority, following Sottomayor v. De Barros (No. 2), but in In re Paine,76 as Dr. Falconbridge points out, a marriage in a converse case was held to be invalid. Falcon- bridge on this point says that English courts now treat marriages within the prohibited degrees as void for incapacity rather than for illegality, but it would seem not quite accurate to characterize such a disability as incapacity, simpliciter, if the parties are generally capable of marrying. In the same way, it would seem incorrect to say that the husband in Chappelle v. Chappelle was incapable of marrying a divorced woman while her former husband was still living. It is suggested that Mette v. Mette and In re Paine are unsatisfactory authorities. If one party is free to marry the other by his or her domiciliary law, but the other is not free by his or her domiciliary law to marry the first party, both parties being generally capable of marrying by their domiciliary laws, the marriage might be considered valid or void as it is regarded by the law of the place of celebration. This rule seems preferable to the selection of the lex domicilii of the man suggested by Falconbridge, which is not supported by In re Paine, if that case is an authority, or by Sottomayor v. De Barros (No. 2) . The alternative suggestion of the law of the "matrimonial domicile" may offer advantages, but it may be difficult to decide what the "matrimonial domicile" is. Further, in Chapelle v. Chapelle, the "matrimonial domicile" was in Malta., but the parties de- liberately chose to be married in England because by English domestic law the marriage was valid and by Maltese domestic law it would have been void." The woman's domicile immediately before the marriage was in England. Where the parties choose to be married in one country, by the domestic law of which the marriage is valid, rather than in another, by the domestic law of which it would be void, in order that the marriage may be valid by the lex loci celebrationis as well as the lex domicilii of one party, the intention of the parties to contract a valid marriage should be enough to weight the scales in favour of the lex loci celebrationis . If the husband's petition had been brought in England instead of in Malta, it is suggested that the marriage should have been 78 [194011 Ch. 46. 77 It is said that the canon law is the Maltese law of marriage . Maltese courts do not apparently restrict the exercise of jurisdiction in nullity in accordance with canon law rules.

1950) Nullity of Marriage 991

upheld, even if he had raised the question of the wife's divorce. The English court would not have given any consideration to the alleged defect of form. In Chetti v. Chetti 78 the marriage had been celebrated in England between a woman domiciled in that country and a man domiciled in India. The personal law of a person domiciled in India may depend on his religion, and by the religion of the man he was not free to marry the woman, although apparently under no disability creating an incapacity to marry generally. The Eng- lish court held the marriage valid. This case was formerly considered to be an application of the rule that English courts will not hold a marriage invalid by reason of an incapacity or disability of a kind not known to English law, but this rule is now thought to be incorrectly stated . The Chetti case may, however, come within the rule suggested in Ogden v. Ogden. :It is still possible that disabilities of a religious nature imposed by. a foreign law will not be recognized in England. Dr. Falconbridge has shown" that want of consent of parents may be a defect in celebration, governed by the lex loci celebrationis, or may create an incapacity, governed by the lex domicilii, depending on the terms and context of the law which requires the consent. A disability arising from a prohibition penal in its nature, imposed - by the lex domicilii of either or both parties, will not invalidate in England a marriage celebrated there and valid by English law. By the laws of several states of the United States marriage between "white persons" and "persons of colour" or between "Indians" and "Negroes" are prohibited and void. In some jurisdictions the defendant in a divorce action is prohibited from remarrying in certain circumstances. English law would apparently not treat a marriage forbidden on any of these grounds by the lex domicilii of 'either party as invalid on that ground. Here again, the question seems to be treated as one of illegality rather than of incapacity . One may, however, ask whether the marriage would be upheld in England if prohibited for one of these reasons by the lex loci celebrationis as well as the lex domicilii. The question of the proper law to determine the validity of the consent was suggested in discussing the nature of the invalidity created by the English statute where one spouse refuses con summation. In 'the De Reneville and Casey decisions, the law of 78 (1908), 25 T.L.R. 146, [19091~P. 67. 79 Falconbridge, Conflict of Laws (1947) 48-58.

992 THE CANADIAN BAR REVIEW [VOL . XXVIII

the husband's domicile or the law of the matrimonial domicile was looked to. In Way v. Way the petitioners were all domiciled in England at all material times. They had married citizens of the U.S.S.R. in that country. Hodgson J. held that the ceremonies of marriage had been properly performed under the law of the U.S.S.R. It was then argued that the marriages were void for defect in consent, because the husbands had consented on certain assumptions which turned out to be false (one of them was that the Soviet Government would permit the wives to come to Eng- land). Hodgson J. said that consent was governed by the personal (that is, domiciliary) law and not the law of the place of celebration, and applied English law by reason of the English. domicile of the men. By English law these mistaken beliefs did not vitiate the consent. Soviet law on the point was not discussed although it was the'law of the domicile of the women. It would appear that the intended, but not actual, "matrimonial domicile" had been England. Where the marriage was celebrated in the country of the domicile of one party there would appear to be grounds for selecting the law of the place of celebration to determine the validity of the consent. English law has been applied without question in a number of English cases of nullity, such as Mehta v. Mehta, Easterbrook v. Easterbrook, and Hutter v. Hutter, although it appears that it should not have been found to be the proper law in the two last mentioned cases. If the marriage is void or voidable by the lex fori but not by the proper law, the petitioner will not suggest another law, and if the petition is undefended and the court does not inquire into the proper law the problem does not arise. The attitude of the courts in the Robert, De Reneville and Casey decisions may indicate that English courts will in future inquire sua sponte what is the proper law, and require the petitioner to prove it. There seems still, however, to be a trace of the old principle of selecting English law for Gilbertean reasons. Although all contract rules are not strictly applicable to marriages, perhaps one may find in the language of Lord Greene and of Bucknill L.J. in the De Reneville case a suggestion that the court may tend to select a lex matrimonii on the analogy of a lex contractus. Lex domicilii may be the lex matrimonii for most questions of capacity, but the law of the matrimonial domicile may govern the effect of refusal to consumate just as the lex loci solutionis governs performance of a contract. This argument would not justify selection of the law of the matrimonial domicile to annul a marriage for impotence, and it is suggested that

1950] Nullity of Marriage 993

the proper law in that case should be the lex domicilii of the party whose impotence is alleged. The law of the matrimonial domicile would perhaps be the proper law to determine the effect of fraud of the kind involved in the New York case I have mentioned. It must be agreed that the statements in the De Reneville and Casey judgments, which suggest that all matters of "essential" or "intrinsic" validity are determined automatically by the law of the domicile or of the "matrimonial domicile", must be construed with reference to the problems involved in these cases and cannot be taken as of general application without qualification. On the other hand, the authorities do not support the suggestion that the lex, domicilii does not ever overrule the let loci celebrationis.

The United Kingdom Law Reform (Miscellaneous Provisions) Act, 1949, declares that in all proceedings in which the court has jurisdiction by virtue of that Act, or under section 13 of the Matri- monial Causes Act, 1937, or the Matrimonial Causes (War Mar- riages) Act, 1944, the issues shall be determined in accordance with the law which would be applicable if both- parties were domiciled in England (or Scotland, as the case may be), at the time of the proceedings. This provision will no doubt result in the application of English- domestic law to all divorce petitions presented in England, and Scottish domestic law to similar petitions in Scotland. This rule will apparently make no difference in practice, because it seems that even under the former extended divorce jurisdiction English law was applied without question by English courts. The statute does not expressly provide that Eng- lish (or Scottish) domestic law will apply to nullity proceedings. The lex domicilii of the parties or either party at the time of the proceedings would not determine the validity of a marriage, unless it happened to be the proper law for some other reason. It may be presumed that English (and Scottish) courts will continue to select the proper law in cases of nullity in-accordance with English (or Scottish) conflict rules.