Report No. 65

V. Position in U.S.A.

3.33A. American Law.-

This seems, by and large, to be also the state of the law in the United States.1 Occasionally, however, United States courts require that the misconduct should be recognised as a cause for divorce by the law of the State where it occurred.2

1. See, e.g., Torlonia v. Torlonia, 108 Conn 292, 142A, 848 (1928); and Chestham, Goodrich Griswold and Reese Conflict of Laws: Cases and Materials, (4th Edn., 1957), p. 790, cited in 1963 Brit Y B Intl Law 127 (128).

2. See Parzel v. Parzel, (1891) 91 KY 634: 15 SW 658 cited in 1963 Brit Y B Intl Law 127 (128).

3.34. Application of its own law by courts of the forum in the U.S.A.-

In the USA in regard to inter-State conflicts, Leflar1 has stated the position thus:

"Today, the standard choice-of-law rule calls for a forum State to apply its own substantive divorce law, as to what are grounds for divorce, even when the alleged grounds across in other states in connection with spouses at the time domiciled in other states."

Leflar has added that,1 a State may also, if it chooses to grant divorces for other causes, set up, as grounds for divorce in exercising its own jurisdiction grounds recognised by the law of the place where the particular facts occurred, or where the parties were domiciled when the facts occurred. Conversely, if a State so chooses, it may deny divorces unless the grounds relied upon were grounds for divorce by the law of such other states. This is wholly a matter for each state to decide for itself when it enacts its statute.

For example, in the U.S.A., the Arkansas Statute2 originally required that, if the grounds for divorce occurred, outside of Arkansas, to parties not the resident in Arkansas, those grounds should be grounds for divorce both by the law of Arkansas and by the law of the place where they occurred.3 The last part of the requirement was eliminated when Arkansas enacted its "quicker" divorce laws.

1. Leflar Conflict of Laws, (1968), p. 547.

2. The Ark. Stat. Ann. 3505 (C&M 1921), cited by Leflar Conflict of Laws, (1968), p. 547.

3. Mullanband v. Mullanband, 1919 Ark 505: 208 SW 801.

3.35. Similarly, a state might limit grounds for divorce to acts occurring at the forum.1 But, in general, where a court assumes jurisdiction in relation to the grant of divorce, it usually approaches the matter with reference to its own law, i.e., the substantive law of the forum.

1. Nicholas v. Maddex, (1900) 52 Le Ann 1493: 27 SC 966.