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Report No. 65

IV. Nationality

2.15. Nationality.-

In some of the countries on the Continent, the Courts exercise matrimonial jurisdiction on the basis of nationality, and it may be presumed that these countries adopt the same approach, as regards recognition also-i.e., recognition of decrees of countries which are foreign countries for the purposes of those countries. They, therefore, recognise foreign decrees granted on the basis of nationality.

2.16. France and other countries.-

In this connection, France is an outstanding example. Since the French Revolution and the introduction of Civil Code of France, its connecting factor of personal law changed. Domicile was superseded by lex Batriae-i.e., nationality1 replacing domicile in regard to personal relations. The French rule is followed in other civil law countries also. The most representative legislations of the civil law take into consideration the position of the law of the State whose nationals the parties are, with regard to one or both of the following points:

(i) Jurisdiction in the case of foreign nationals is not assumed, unless the national law of the parties is willing to recognize this jurisdiction.

(ii) Divorce is not granted, unless it is agreeable to the internal law of the national state of the parties.

1. See also para. 2.19, infra.

2.17. Savigny's view.-

However, it should be mentioned that the test of nationality has not always been favoured, even on the continent. Adverting to the variety of opinions among both writers and courts respecting conflicts of laws, Savigny nevertheless conceived that, from the exceptional and active common concern in the problems of this field of law, there would develop a universal community of legal understanding and legal life. The further suggestion that the principle of nationality, then coming into prominence, would not make itself felt in a subject, the nature of which involves the resolution of conflicts of national laws within a recognised community of the various nations, equally reflects Savigny's international point of view.1

But these anticipations of Savigny were soon to be disappointed. Two years after Savigny wrote, the doctrine of nationality, which in its exaggeration has so much contributed to international disorder during the past century, was proclaimed by Mancini as the fundamental principle of the law of nations, and shortly become the distinctive basis of legislation in continental Europe.2

1. Professor Yntema in Rabel Comparative Conflict of Laws, (1958), Vol. I, Foreword, p. xvi.

2. Professor Yntema in Rabel Comparative Conflict of Laws, (1958), Vol. I, Foreword, p. xxvi.

2.18. Provisions in Brazilian Code.-

Apart from continental countries, nationality is a valid criterion in a few others. For example, according to Article 35 of the Brazilian Code1, the personal consequences of the marriage are determined by law of the common "habitual residence" of the husband and wife; but the Brazilian law applies if he is a Brazilian citizen or domiciliary.

1. Article 35, Brazilian Code on Private International Law: 'De Nova Development of Private International Law, (1964) 13 American Journal of Comparative Law 452 (561).

Recognition of Foreign Divorces Back

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