SECTION 1.-EFFECT OF MARRIAGE ON THE PROPERTY OF THE
HUSBAND AND WIFE.
Rights and powers of the husband and wife over the property of each other,
as incident to their marriage.-Under the civil law. The husband's
power and interest, extended only to a part of the wife's property, Dos,
Bona dotalia, Paraphernalia, Receptitia.-A part only of the husband's
property subject to the marriage, Donatio propter nuptias, or antidos,
Bona antidotalia, and Bona non antidotalia.-Restitution of Bona dotalia,
and Bona antidotalia on the dissolution of the marriage.-Sole and absolute
power retained by the wife over her Bona Paraphernalia, et Receptitia, and
by the husband over Bona non antidotalia.-Pacta dotalia.-Donationes
inter virum et uxorem.
EFFECT OF MARRIAGE ON THE PROPERTY OF THE HUSBAND AND
WIFE, UNDER THE LAWS OF THE COLONIES, ISLE OF MAN, AND
THE UNITED STATES.
The law of England is followed by the greater number of the Colonies.—
The exceptions are, Barbadoes, as to the wife's title to dower.-Antigua,
St. Kitt's, Nevis, Montserrat, and Grenada, as to the manner in which
it may be barred by devise.-In Jamaica, slaves subject to husband's
curtesy. In Jamaica, Barbadoes, Antigua, St. Vincent's, Tobago, and
Grenada, slaves unattached, as well as attached to the plantation, are
subject to wife's dower, after payment of debts.-In St. Kitt's, Montserrat,
and Virgin Islands, only those attached to the plantation. In Antigua,
St. Kitt's, Montserrat, Grenada, and Tobago, cattle, and plantation
utensils, subject, with the plantation, to dower.-Isle of Man, husband and
wife take a moiety in the real property of each.-Restraint on the hus-
band and wife's power of alienating their property.-Husband's liability
for wife's debts.-Summary of the particulars in which the laws of the
several States of America correspond with the law of England.-In what
respects they differ from the law of England.-In Georgia, husband takes
an absolute interest in wife's real, as well as personal property.-Title to
curtesy and dower.-Property in slaves.-Wife's power over her real
estate.-Construction of gifts and devises to husband and wife.—Wifes'
separate property, and her power over it.-Jointures.-Testamentary pro-
visions in lieu of dower.-Settlements.-Law of Louisiana.
THE LAW WHICH DECIDES WHAT INTEREST THE HUSBAND AND WIFE
ACQUIRE IN THE PROPERTY OF EACH OTHER, AS THE EFFECT OF
THEIR MARRIAGE.
The conflict which may arise between the several laws stated in the pre-
ceding sections of this chapter.-The collision between those of the ma-
trimonial domicile, the actual domicile, and the situs.-The question
whether the communio bonorum extended to real property, situated in a
country where there existed no such provision, has divided Jurists.—
Dumoulin, Rodenburg, Voet, Pothier, and others maintain the affirmative;
according to their opinion, it extends, not by force of the law, but by the
tacit agreement of the parties.-The negative is maintained by Argentræus,
Vander Meulen, and others, who consider the law of community a real
law, that it does not affect immoveable property in any other country but
that in which the law existed, and that the theory of a tacit agreement can-
not be sustained.-Another class of Jurists, consisting of Burgundus and
Boullenois, also reject this theory, but consider the community a personal
law.—The English, Scotch, and American decisions are in conformity with
the opinion of Argentræus, and Vander Meulen, that immoveable property
will be subject to the community only, when it is situated in a country
where that law prevails.-Moveable property, wherever situated, subject
to the law of the matrimonial domicile.-Effect of a change of the matri-
monial domicile on the interests already acquired under its law, and on
those afterwards acquired in the actual domicile.-Husband's and wife's
interests in the property of each other independently of the law of com-
munity.-Power and capacity to alienate governed by the law of the
domicile, if it be moveable property, by the lex loci rei sitæ, if it be im-
moveable. This rule decides all questions on the wife's equity to a settle-
ment, her separate property, the title to curtesy, viduité, douaire, dower,
terce, and the causes for which they are forfeited, satisfied, or barred by
settlement, or testamentary disposition.-Husband's liability for debts
contracted by the wife before marriage.-Whether affected by change
of domicile. How far the lex loci rei sita determines the legal operation
of dispositions made to the husband and wife, or controls the con-
struction of contracts.-Donations inter conjuges depend on that law, if
the subject be immoveable property, and on the law of the domicile, if it
be moveable.
SECTION 1.-THE LAW OF DIVORCE AS IT EXISTS UNDER DIFFERENT
SYSTEMS OF JURISPRUDENCE.
Termination of the status of marriage by divorce à vinculo matrimonii.—
That divorce distinguished from divorces or separations à mensá et thoro.
-Divorces at different periods of the Roman law.-The Canon law. Its
doctrine as to the indissolubility of marriage.-Not universally adopted.-
Practice of the Greek Church.-Strictly maintained by France, and other
Catholic countries.-Marriage considered by them a Sacrament.-The
encouragement of divorces by the law of the 20th November, 1792.-
Restrained by the Code Civil.-The causes for divorce which it retained.
-Law of May 1816, abolished divorces.-Law of Holland, Prussia, Den-
mark, Scotland.-In England, the power of divorce à vinculo exercised
by Parliament alone.-Causes of divorce à mensá et thoro.-The Legis-
latures of the West India colonies not permitted to grant divorces à vinculo,
and no jurisdiction in any court to grant divorces even à mensa et thoro.—
Divorces à vinculo granted in Nova Scotia, and New Brunswick.-State
of the law in Trinidad, Lower Canada, St. Lucia, Mauritius, and the
United States...
Possible conflict respecting the dissolubility of marriage between the laws
of the place in which it was contracted, of the actual domicile, and of
the country in which the suit for a divorce is instituted.-It exists be-
tween the law of England and that of Scotland.-By the law of Scotland
a marriage might be dissolved by its judicial tribunals, although con-
tracted in another country.-A summary of the decisions of its Consis-
torial Court.-According to those of its Superior Court, no other resi-
dence is required, but that which is sufficient to found jurisdiction.—
Opinion of the twelve judges of England in Lolly's case, that a marriage
contracted in England cannot, under any circumstances, be dissolved by
the judicial tribunals of another country.-The decisions of the courts of
Scotland not affected by this opinion.-Remit by the House of Lords in
the case of Lindsay v. Tovey, and its effect on the subsequent decisions of
its Consistorial Court.-These decisions brought under the review of
the whole Court of Session.-The unanimous opinion of ten of the
judges of Scotland, in conformity with the previous decision of the Court
of Session. Subsequent decisions in England and Scotland. This con-
flictus legum between the two countries consists not merely in the diversity
of their laws on the subject of divorce, but on the different principles
adopted in the selection of the law, by which the dissolubility of the mar-
riage ought to be determined.-Considerations for adopting, not the lex
loci contractus, nor the law of the place of mere temporary residence, but
that of the actual domicile.
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