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

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 celebra- tion 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. 19501 Nullity of Marriage 965 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 966 THE CANADIAN BAR REVIEW [VOL. XXVIII these exceptional cases, when a church court of that Church de- clares 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 pur- ported 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 . 19501 Nullity of Marriage 967 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 .

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