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Report No. 15

Referring to the case, the learned author observed thus:

"but this authority is weakened, (1) by the learned Judge's pronouncement in favour of the lex loci contractus as governing competency, (2) by his taking Creswell's opinion in favour of the lex loci contractus from Simonin v. Mallac, (1860) 2 Sw & Tr 67, without reference to that learned Judge's saying in Mette v. Mette, 1 S&T 423, "there could be no valid contract unless each was competent to contract with other", (3) by his reference to the statutes on the marriage of first cousins, which seems to imply that the rules of private international law are less applicable where the English law is contained in statutes than where it is the common law. De Wilton (in re:),(1900) 2 Ch 481. the dependence of capacity for marriage on domicile was held not to be subject to an exception for the marriages of Jews.

And conversely, a marriage in which the personal law of each party as regards his capacity is satisfied is valid in England so far as regards such capacity, notwithstanding that by English law it would be incestuous: Re Bozzelli's Settlement, (1902) 1 Ch 751, and the judgments of Lord Campbell and Cranworth in Brook v. Brook there quoted."

The eminent Canadian authority, Falconbridge discussed six different methods of reconciling Mette v. Mette, (1859) 1 Sw & Tr 416 and Re Paine,1940 Ch 46 with Sottomayor No. 2 all of which he rejects as untenable1. Referring to this Morris2 observes:

"The decision in the latter is based upon the grounds (1) that capacity to marry is governed by the law of the place of celebration, and (2) that an incapacity imposed by foreign law is less important than a capacity imposed by English law and can therefore be disregarded. The former ground is clearly untenable since Brook v. Brook. The latter ground is unworthy of a place in a respectable system of conflict of laws."

1. Falconbridge Essay on Conflict of Laws, (1st Edn.), pp. 640-643.

2. Morris Cases on Private International Law, (3rd Edn.) p. 79.

Rabel1, a leading authority of international reputation, examines the decision very critically and states his conclusion as follows:

"On the basis of this latter case, many writers have believed that English courts would always apply domestic law, if the marriage is celebrated in England and one party, or at least the bridegroom, is domiciled there, irrespective of any incapacity by which the other party may have been affected under his own domiciliary law. Thus, whereas a domiciled Englishman marrying abroad would remain subject to the English rules on capacity, the foreign grounds of incapacity, of a person domiciled abroad would be disregarded. This alleged rule has acquired worldwide notoriety; it has been labelled a badge of "insular pride and complacency". In fact, apart from the unclear grounds of the court in the second Sottomayor2 decision and the entirely discredited case of Ogden v. Ogden, (1908), p. 4. there is no reasonable support for such unilateral English doctrine."

1. The Conflict of Laws, A Comparative Study, Vol. 1, 1945, p. 260.

2. (1879) 5 PD 94.

Report on the Law of Christian Marriage and Divorce Back

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