CHAPTER IV.

MARRIAGE, DIVORCE, LEGITIMACY.

Marriage.

MARRIAGE introduces us to the question of public order, to a reservation in favour of which, as it is understood in the judge's country, all rules for the application of foreign laws are subject. No attempt to define the limits of that reservation has ever succeeded, even to the extent of making its nature clearer than by saying that it exists in favour of any stringent domestic policy, and that it is for the law of each country, whether speaking by the mouth of its legislature or by that of its judges, to determine what parts of its policy are stringent enough to require its being invoked.

The Italian code has:

Notwithstanding the dispositions of the preceding articles, neither the laws acts or judgments of a foreign country, nor private dispositions or contracts, can in any case derogate from prohibitive laws of the kingdom concerning persons property or acts, or from laws which in any way whatever regard public order or good morals. Italian Code, Preliminary Article 12.

Correspondingly the Code Napoleon has:

Private contracts cannot derogate from laws which interest public order or good morals. Art. 6.

The reservation is in theory inevitable. It merely amounts to saying that, just as there are nations, like the Turks or the Chinese, whose views and ways are so different from ours that we could not establish at all between them and us a system of private international law, by which effect might as a general rule be given in Christian states to their laws and judgments, so, between Christian states, differences of views and ways may exist which may necessitate exceptions to the general rule of giving effect to their laws and judgments. Thus, even while slavery existed in certain Christian countries, the rights arising out of it

were very rarely recognized in those Christian countries where it did not exist. Now, however, the most important practical effect. of the reservation is in connection with marriage and divorce.

Let us suppose that a marriage is contemplated in any country between persons who are foreigners to it by their personal law. So far as regards any objection which may be entertained to it on the ground of consanguinity, affinity, religion or morality, which are eminently questions of public order, it interests the locus actus or contractus celebrati, as being that place in which it will begin and may continue for an indefinite time to have effect, just as much as it interests the domicile in which the parties are likely to pass most of their lives, or the political state for which their union will produce new subjects. And the case is further distinguished from that of other contracts in that in most countries the tie of marriage is not created without the intervention of public authority, applied by means of some ceremonial, civil or religious, and that the introduction of any foreign or private form of contracting would offend against public order by its tendency to clandestinity. The one point on which the country in which the tie originates may well give way to the country of the personal law, as being alone seriously concerned, would seem to be the capacity of the parties as depending on age, including the consent of parents or guardians as supplying a capacity which would otherwise fail. If then the rules of private international law are to be framed on grounds of principle, and so that the validity of a given marriage may be determined alike in every country in which it shall be called in question, the form of contracting marriage ought to be referred to the lex loci actus or contractus celebrati absolutely and not merely as optional. The capacity of each party, as depending on age or the consent of third persons, ought to be referred with equal exclusiveness to his or her personal law; but respect ought to be paid to a prohibition either by the lex loci contractus celebrati or by the personal law of either party, on the ground of any other incapacity, relative or absolute. Marriage is a contract creating a status, and it might therefore fairly be expected that it should be subject to this combination of the law of contract and the law of status, but rules relieving it from some of the obstacles which so strict a view would raise may be introduced by international treaty, or even by independent legislation if some sacrifice be submitted to of the certainty that the validity of a given marriage will receive the same determination everywhere.

By the French and Italian codes the international aspect of the capacity for marriage is not dealt with otherwise than by the general provisions as to capacity which we have seen (above, pp. 25, 27). We have also seen (above, pp. 31, 32) how the German einführungsgesetz deals by Arts. 7 and 27 with general capacity, and these provisions are applied to marriage as

follows:

Art. 13, first paragraph. The entering into marriage, if either of the parties is a German, must be decided in relation to each of the parties according to the laws (gesetze) of the state to which he or she belongs. The same holds good for foreigners who enter into marriage in Germany. [This is one of the paragraphs to which Art. 27 applies. See above, p. 31.]

The convention of 1902 made between twelve states,* in its Art. 1 which we have seen above (p. 34), like the German Art. 13, requires the separate fulfilment by each party of the conditions of capacity to contract marriage; and this must be considered as beyond controversy. We shall see that, when the existence of the marriage tie is established, its effect on property may depend on the matrimonial domicile or the husband's nationality; but it would be illogical, while it remains to be seen whether the tie has been established, to give the determination of the woman's capacity to the personal law of the man. The convention then proceeds to the objections to particular marriages, and Art. 2 provides that the law of the place of celebration may prohibit a marriage of foreigners which would conflict with any absolute prohibition contained in it on the ground of consanguinity or affinity, of the adultery of the parties having caused the divorce of one of them, or of the parties having been convicted of conspiring against the life of the husband or wife of one of them. All these are relative incapacities, and it might be thought that the idea was to give to the place of celebration an equal authority in respect of them with that of the personal law. But this is not so, for there follows a provision that a marriage which has been celebrated in disregard of any such prohibition shall not be null, if valid according to the law indicated by Art. 1. And by a further clause of Art. 2 combined with Art. 6, a state is not bound to lend the authority of its own celebration to a marriage which would be contrary to

*It has since been denounced by both France and Belgium. On the other hand,. it is notable that its provisions were adopted by the Mixed Court of Appeal in Egypt as a kind of jus gentium, although Egypt was not a party to the Convention. (See Clunet 1914, p. 643.)

its laws by reason of a prior marriage or of a religious obstacle, of which holy orders or vows may be taken as an example, but is bound to permit the celebration of such a marriage between two foreigners before a diplomatic or consular agent; while, if the parties succeed in getting such a marriage celebrated in the ordinary way, other countries must not give effect to the nullity arising in the place of celebration. So great indeed is the tenderness shown by the convention to parties who have gone through a form of marriage, that not only is capacity by the personal law allowed to prevail, to the extent which we have seen, over incapacity by the law of the place of celebration, but by Art. 3 the law of the place of celebration may permit the marriage of foreigners notwithstanding a prohibition by the personal law founded solely on religious motives, though other countries are to have the right not to recognize the validity of a marriage celebrated in those circumstances.

With regard to the form of marriage, the Italian code has only the general provision :

The external forms both of acts inter vivos and of last wills are determined by the law of the place where they are made. Nevertheless, it is optional for parties making dispositions or contracts to follow the forms of their national law, provided such law be common to all the parties. Italian Code, Preliminary Article 9.

But the German einführungsgesetz has both a general permission in Art. 11 and a special one in Art. 13.

Art. 11, first paragraph. The form of an act in the law (rechtsgeschäft) is determined by the laws (gesetze) governing the legal relation which is the object of the act. But it is sufficient to observe the laws (gesetze) of the place where the act is done.*

Art. 13, third paragraph. The form of a marriage which is celebrated in Germany is decided exclusively according to the German laws (gesetze).

The convention of 1902 has these provisions:

Art. 5. A marriage celebrated according to the law of the country where it takes place shall be recognized everywhere as valid so far as regards its form.

It is, nevertheless, understood that countries of which the law requires a religious celebration may refuse to recognize as valid marriages contracted by their nationals abroad without observing that requirement.

The dispositions of the national law as to the publication of banns are to be respected, but the want of such publication shall not cause the mar

*This prevents the renvoi from being obligatory. If the whole law (recht) of the locus actus should refer to the form given by the internal laws of another country, it will still be sufficient to observe the form given by the internal laws of the locus actus.

riage to be null in any other countries than that of which the law has been violated.

An official (authentique) copy of the act of marriage shall be sent to the authorities of the country of each of the parties.

Art. 6. A marriage celebrated before a diplomatic or consular agent conformably to the law of his country shall be recognized everywhere as valid so far as regards its form, if neither of the parties is a subject of the state in which the marriage has been celebrated, and if that state does not object, which it cannot do if the marriage would be contrary to its laws by reason of a former marriage or a religious obstacle.

The reservation expressed by the second paragraph of Art. 5 is applicable to diplomatic and consular marriages.

Art. 7. A marriage which is null for defect of form in the country in which it has been celebrated may nevertheless be recognized as valid in other countries, if the form prescribed by the national law of each of the parties has been observed.

The anxiety to uphold what has been celebrated as a marriage, which the convention shows with relation to capacity, is here also traceable, but combined with a respect, which no doubt was necessary in order to its being concluded, for the objection felt in some countries to the absence of a religious form.

We have now to exhibit the English doctrines on the international validity of marriages.

§ 17. It is indispensable to the validity of a marriage that the lex loci actus be satisfied so far as regards the forms or ceremonies.

Butler v. Freeman (1756), Ambl. 303, Hardwicke; Lacon v. Higgins (1822), 3 Star. 171, Dow. & Ry. N. P. 38, Abbott; Kent v. Burgess (1840), 11 Sim. 361, Shadwell; Re Bozzelli's Settlement, [1902] 1 Ch., at p. 757, Swinfen Eady; Westlake v. Westlake, [1910] P. 167, Bargrave Deane; Pepper v. Pepper, [1921] L. J. Newsp., p. 413, where a marriage was held to be null which was celebrated between two English parties in Scotland by declaration at a marriage office, on the ground that the twenty-one days' residence required in Scotland before the marriage had not been completed according to the Scotch computation of the period. See also Swift v. Kelly (1835), 3 Knapp, 257, Brougham; where the validity of a marriage contracted at Rome depended on the sufficiency of the abjuration of protestantism by the parties, and the question whether their abjuration was sufficient was decided according to the law of the Roman Church. And see Swifte v. Att.-Gen. for Ireland, [1912] A. C. 276, Loreburn, Halsbury, Atkinson, Haldane; an Irish statute invalidating certain marriages if performed by a Popish priest held not to apply to a marriage celebrated out of Ireland.

§ 17a. The religious or ecclesiastical law of a church will be disregarded if the requirements of the law of the state as to form have been observed.

Thus a marriage celebrated in a private house in Ireland by a Roman Catholic priest in the presence of one witness was valid though alleged to