Report No. 15
(iv) Inconsistent with the practice in England:
Firstly, the statutory provisions may be considered. The domestic law of marriage in England was finally consolidated with some amendments by the Marriage Act, 1949. This Act provides for two categories of absolute prohibitions or prohibitions which may be classified as pertaining to capacity and essential validity. These are (i) as to age and (ii) as to prohibited degrees. Section 2 of the Act taken from the Age of Marriage Act, 1929, provides that a marriage between persons either of whom is under the age of 16 shall be void. Section 1 deals with prohibited degrees and provides that marriages within prohibited degrees of consanguinity or affinity as stated in Parts I and II of the First Schedule to the Act shall be void. It may be noted that the Schedule reproduces with some modifications the prohibitions of the Prayer Book as confirmed and modified by statutes commencing from Lord Lyndhurst's Act of 1835 (526 Will 4, c. 54).
It is significant that the Act is silent on the question whether its provisions on the subject under consideration are confined only to persons domiciled in England or whether they apply to all persons marrying in England. It is this legislative silence that enables Courts to import principles of private international law. It cannot be claimed that our Bill follows the pattern of the English Marriage Act. There is nothing in the Act corresponding to clause 1(2) of our proposed Bill. Nor can an inference be drawn from the provisions of the Act that compliance with sections 1 and 2 is condition precedent to the solemnisation of marriage under it. In contrast to the provisions of our Bill the Act does not empower any of the authorities authorised to solemnise marriages to suo motu refuse to register marriages on the ground of any prohibitions falling under section 1 or
2. Thus in the case of marriage by banns, no doubt, publicity is given and it is open to raise objections. In the case of marriage by common license provision is made in section 16 whereby one of the persons to be married should swear before a person granting such licence that he or she believes that there is no impediment of kindred or alliance of any other lawful cause nor any suit commenced in any court, to bar or hinder the solemnisation of marriage in accordance with the licence. That sworn statement is accepted and, if it is false penal consequences will follow.
Section 29 provides for the entering of a caveat and that caveat is to be enquired into by the Superintendent and an appeal is provided for to the Registrar-General from the decision of the Superintendent. Thus it is clear that the Act does not insist as does the present Bill, that whatever may be the law of the domicile of the parties they are bound to satisfy the solemnising authority that there are no impediments under sections 1 and 2 of the Act.
Considerable light is thrown on the question as to what is the meaning of the expression "impediments" in relation to the declaration that there are no impediments, by other statutory provisions and judicial decisions and the views of writers of authority. We may consider first Marriage with Foreigners Act, 1906 (6 Edw. 7, c. 40) which is still on the statute book. Section 2 of the Act deals with marriages of foreigners with British subjects in the United Kingdom and deals with issue of certificates that there are no impediments according to the foreign law.
Though the Act applies only in the case of subjects of reciprocating territories, it is clear that it proceeds on the assumption that impediments in the case of a foreigner would mean impediments under the foreign laws1. Secondly, reference may be made to section 19 of the Foreign Marriages Act, 1892, which provides that the Marriage Officer under the Act should refuse to solemnise a marriage which would be inconsistent with the principles of international law or comity of nations. As will be pointed out later, the principle referred to is the principle that capacity and essential validity are governed by lex domicilii of the parties.
1. See Halsbury's Laws of England (3rd Edn.), Vol. 19., pp. 778, 779 where this Act is referred to.
It may also be noted that leading authorities like Halsbury and Dicey support the view that the law relating to prohibited degrees of consanguinity and affinity laid down by the English Act affects only persons domiciled in England. See 19 Halsbury's Laws of England, (3rd Edn.), page 785 and Dicey's Conflict of Laws (7th Edn.), page 258. The decisions relied on by these writers in support of the proposition-Re De Wilton, Re Bozzelli's Settlement-Sottomayor v. De Barros (No. 1)-bear it out1.
2. In re: De Wilton, (1900) 2 Ch 481, the question arose with reference to the persons professing the Jewish religion who were domiciled British subjects. The marriage was solemnised outside England according to Jewish rites between, a niece and a maternal uncle. The marriage was valid according to Jewish Law but was void according to English law. It was held, notwithstanding the fact that the marriage was valid according to Jewish law, as the persons were domiciled in. England they were governed by the impediments laid down by the English Law (Lord Lyndhurst's Act) and so the marriage was void.
In re: Bozzelli's Settlement, (1902) 1 Ch 751, the question arose about the validity of the marriage between a naturalised Italian domiciled in Italy who married her deceased husband's brother, an Italian domiciled in Italy. The marriage was solemnised in Italy after the necessary dispensation has been obtained. It was valid according to the Italian law and the question arose whether it is a marriage which should be recognised as valid in the United Kingdom.
It was held that notwithstanding Lord Lyndburst's Act, the marriage was valid in England. Swinfein Eady J., applied the principle of Brook v. Brook, (1861) 9 HL Cas 193, which 'established the principle that the law of domicile of the parties will govern the essential validity of marriage. A passage from the judgment of the Court of Appeal in Sottomayor v. De Barros, (1877) 3 PD 1, was also quoted with approval. It repeats the well-recognised principle of private international law that a question of personal capacity to enter into a contract is to be decided by the law of domicile of the parties.
In the sphere of English conflict of laws, since the decision of House of Lords in 1861 in Brook v. Brook, (1861) 9 HL Cas 193. it is well established that a distinction has to be made between formalities and essentials of marriage -and that the latter which includes capacity is governed by the law of domicile of the parties. In Brook v. Brook, the marriage was solemnised in Denmark between a man and his deceased wife's sister, both of English domicile. According to the law of Denmark, the marriage was valid. According to the law of England, as it stood then, the parties were within prohibited degrees of relationship and hence the marriage was void.
The question in issue was whether the lex loci celebrationis would prevail over the domiciliary prohibition as to capacity. The point was debated before very eminent Law Lords and in an exhaustive judgment it was held that the marriage was void, as under the law of England such a marriage was void. Lord Campbell, L.C. at p. 207 in that case stated:
"There can be no doubt of the general rule that a foreign marriage, valid according to the law of a country where it is celebrated, is good everywhere. But, while the forms of entering into the contract of marriage are to be regulated by the lex loci contractus, the law of the country in which it is celebrated, the essentials of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled at the time of marriage, and in which the matrimonial residence is contemplated.
Although the forms of celebrating the foreign marriage may be different from those required by the law of the country of domicile, the marriage may be good everywhere. But if the contract of marriage is such, in essentials, as to be contrary to the law of the country of domicile, and it is declared void by that law, it is to be regarded as void in the country of domicile, though not contrary to the law of the country in which it was celebrated", and at p. 212 the Lord Chancellor further observed:
"It is quite obvious that no civilised State can allow its domiciled subjects or citizens, by making a temporary visit to a foreign country to enter into a contract, to be performed in the place of domicile, if the contract is forbidden by the law of the place of domicile as contrary to religion, or morality or to any of its fundamental institutions." The other Lords, Lord Cranworth and Lord St. Leonards also enunciated the same principles. Ever since that decision the principle has been applied in England to varying situations.
The application of the principle laid down by the House of Lords in Brook v. Brook may be considered with reference to the following situations1.
(1) Both parties domiciled in England and the marriage celebrated abroad.
(2) Both parties domiciled abroad and the marriage celebrated in England.
(3) One party domiciled in England and other party abroad and the marriage celebrated abroad.
(4) One party domiciled in England and the other abroad and the marriage celebrated in England.
1. The situation where both parties are domiciled in England and the marriage is celebrated in England is clearly a problem governed exclusively by municipal law.
The first of the aforementioned situations was the one directly in issue in Brook v. Brook and does not require further consideration. It is clear that lex domicilii of the parties is decisive in such a situation1. The second situation arose in Sottomayor v. De Barros (No. 1), (1877) 73 PD 1. In this case the marriage was between two first cousins, both assumed to be of Portuguese domicile. By the law of Portugal the marriage was void as being within prohibited degrees, but by the Law of England the marriage was valid. The court held that the domiciliary prohibition was binding and accordingly declared the marriage void.
The third situation-one party domiciled in England, the other abroad and the marriage celebrated abroad-arose in Mette v. Mette, (1859) 1 Sw Sr Tr 416, Re Paine, 1940 Ch 46 and more recently in Pugh v. Pugh, (1951), p. 482. In all these cases the principle of domicile governing capacity was applied and by virtue of the prohibition under one or other of the laws of domicile applicable, the marriages were held void although the marriages in each case was valid by the lex loci celebrationis and the lex domicilii of one of the parties. It is significant that both in Re Paine and Pugh v. Pugh, the decision in Brook v. Brook was followed and applied. In Re Paine, Bennet J., expressly endorsed the views of Dicey, Westlake and Halsbury viz., that capacity is governed by the law of domicile of each of the parties.
1. See also De Wilton (in re:), (1900) 2 Ch. 481. Facts given earlier.
It is only with regard to the fourth situation-that is, where the marriage is celebrated in England and one party is domiciled in England and the other domiciled abroad-that there is confusion and difficulty. The only authorities are Sottomayor v. De Barros (No. 2), (1879) 5 PD 94, and dicta in Ogden v. Ogden, (1908), p. 46 and Chetti v. Chetti, (1909), p. 67. The dicta in Ogden's case are of not much weight as the decision proceeded, rightly or wrongly, on the assumption that matters of consent pertain to form. The decision in Chetti's case can be explained with reference to the ultimate reservation in favour of public policy of lex fori. It is enough, therefore, to consider Sottomayor's (No. 2) case in detail. Strong reliance has been placed on this case in support of the provisions of the proposed bill and it is therefore necessary to consider it in detail and show what criticism it has evoked.
The case originally started before Phillimore J.1 and the question raised was about the validity of a marriage in England between first cousins one of whom was admittedly of Portuguese domicile. Such a marriage was valid according to the law of England. The marriage itself was celebrated in England. Phillimore J., directed the Queen's Proctor to intervene as the respondent, the husband merely entered appearance and did not file an answer. He disposed of the case without trial holding that as the marriage was contracted in England and being valid under English law, the fact that the parties were incapacitated from entering into a marriage by the law of Portugal did not affect the validity.
1. 2 PD 81.
The matter was taken in appeal1. In the Court of Appeal, the facts not having been tried by the first court, the matter was argued on the assumption that both the parties, the husband and the wife, had Portuguese domicile. On this footing, as the marriage was invalid according to the law of Portugal, the Court of Appeal reversed the decision of Phillimore J., and remanded the case for further disposal on the other questions, particularly questions of fact. Cotton LJ, delivered the judgment of the court consisting of James, Baggalay and Cotton L.J.J. He applied the principle laid down by the House of Lords in Brook v. Brook viz., that the capacity to enter into marriage must be determined according to the domicile of both the parties.
1. 3 PD 1.
After it was sent back, the case was disposed of by Sir James Hannen P.1. He found as a fact that the husband's domicile was English while that of the wife was Portuguese. The President held the marriage valid. Though the judgment is not a well-reasoned one, it is clear that the learned Judge relied upon the English domicile of one of the parties and the place of celebration of marriage for testing the validity of marriage with reference to English Law and for disregarding the prohibition of the law of foreign domicile.
1. (1879) 5 PD 94.
This decision has created a stir in England and was severely criticised. It is, however, treated by Dicey and others as an exemption to the general rule relating to dual domicile as they could not get over the decision until it was reversed by high authority. The decision, however, is opposed to principle and authority and is not in keeping with all other decisions commencing from Brook v. Brook. It has been criticised by a number of writers of authority.
Westlake1, in effect, refused to recognise the decision; for, notwithstanding it, he laid down in section 21 the rule as follows:-
It is indispensable to the validity of a marriage that the personal law of each party be satisfied so far as regards his capacity to contract it, whether absolute, in respect of age, or relative, in respect of the prohibited degrees of consanguinity or affinity."
1. Private International Law, 4th Edn., p. 59