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Report No. 65

Chapter 2

Heads of Recognition Domicile-Nationality-Residence

I. Introductory

2.1. Introductory.-

It will be convenient, at this stage, to make certain general observation as to the possible heads of recognition of divorce and legal separation.

2.2. Connecting factors.-

Recognition of a judgment essentially means recognition of a connecting factor. The possible connecting factors may be classified, in conflict of laws, with reference to a variety of considerations, such as1-

(a) domicile;

(b) residence, which again may mean

(i) permanent residence, (ii) habitual residence, (iii) ordinary residence, or (iv) residence simpliciter at a given moment;

(c) the situation of the legal relation;

(d) origin of the legal conduct;

(e) nationality.

We shall discuss a few of them which are of practical importance in the present context.

1. The list is illustrative only.

2.3. Personal law.-

According to generally accepted principles of private international law the courts of most States will decide issues of personal status and allied matters (marriage, divorce, devolution of property upon death, etc.), by applying the "personal" law of parites.1 In states with a legal system based upon the common law, this "personal" law will be the law of the domicile (the place where the individual concerned has, or had at the appropriate time, his permanent home);2 but, in civil law systems, the personal law is often that of the State of nationality.3

1. Enrenswsigh Conflict of Laws, (1962), p. 372.

2. Goodrich Conflict of Laws, 4th Edn., pp. 32-38.

3. Grieg International Law, (1973), p. 303.

2.4. Two aspects of sovereignty.-

The sovereign power of a State finds expression in two respects:

(a) in its personal power, by which it controls the name of its nationals; and

(b) in its territorial sovereignty, by exercising power on its territory.

The theory of domicile,1 as a test of jurisdiction in matrimonial cases, attaches greater importance to the second aspect, while the theory of nationality2 attaches greater importance to the first aspect. However, it may be noted that the possible effect of applying the test of nationality, is, in continental countries, as such subdued by reason of the application of various special doctrines, chief amongst which is the doctrine of public policy (order public). We shall, in due course, examine the doctrine of public policy,3 and its relevance to the recognition of decrees of divorce.

1. Para. 2.3, supra.

2. Para. 2.3, supra.

3. See Chapter 17, infra.

Recognition of Foreign Divorces Back

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