Report No. 65

VII. Nature of Proceedings and Theories of Recognition

1.31. Nature of proceedings.-

We may mention here that the nature of proceedings in which the question of recognition, may come up for consideration is not subject to any particular restriction. The question may come up directly between the parties. Or, it may arise between third parties. Then, the prayer may be for a declaration that the divorce is valid. Or, the prayer may be that the divorce may be declared to be void. The proceedings themselves could be of several types. One of the parties may re-marry, on the strength of the divorce granted in the foreign country, and, then, the opposite party may initiate proceedings for declaring the second marriage void, or may take appropriate steps for prosecuting the re-marrying party for the offence of bigamy.

Or, the question of validity of a divorce may arise incidentally-for example, where the parties to the marriage, alleged to be divorced by a foreign divorce, are arrayed on opposite sides, in a suit or petition for the grant of maintenance the contention being that the previous marriage subsists, and has not been validly dissolved by the foreign court, so that the obligation to maintain the petitioning spouse, created, by the marriage, subsists.

1.32. Theory of recognition.-

There are several theories of recognition of foreign judgments. When Story wrote his text on Conflict of Laws in 1834, he found Vattol's respect for, the foreign sovereign's "definitive sentence"1 more uniformly adhered to by common law courts than in the jurisprudence of Continental Europe. Nevertheless, he preferred to follow the approach of Chief Justice Marshall2 who, presumably following civil law reasoning, subjected the foreign judgment to an examination of the rendering court's "lawful" jurisdiction over the cause and the parties.3 The scope of further permissible scrutiny would, according to him, vary according to whether the judgment was one in rem or in personam.

The former, he thought, "ought to have universal conclusiveness."4 Judgments in personam, on the other hand under a distinction founded in "international justice"5, (though being an absolute bar as res judicata to any new suit by a losing plaintiff), were subject to examination "into the merits" if sued upon by a prevailing plaintiff.6 For, the forum, in executing a foreign judgment, acts "upon the principles of comity; and "has, therefore, a right to prescribe the terms and limits of that comity."4

However the question how far a foreign judgment could be "impeached" while being regarded an prima facie evidence of the claims,7 remained unsettled. Lord Bottingham once held8 "that it was against the Law of nations not to give credit to the judgment and sentences of foreign countries. For, what right had one kingdom to reverse the judgment of another? What confusion would follow in Christiandom if they should serve us so abroad, and give no credit to our sentences."

Apart from these theories of comity and international law many other theories have been put forth-the theory of vested rights (a foreign judgment creates a legal obligation between the parties), the theory of harmony, and so on.

1. Story Conflict of Laws, 1934.

2. Rose v. Himaly, (1808) 4 Cranch (8 US) 240 (269).

3. Story 492.

4. Story at 597. See Williams v. Armpyd, (1813) 7 Cranch (11 US) 423; Rupollio v. Diary, 2 Dalt (2 US) 231 (1795). For a later case, see Carris v. Beith, 14 How (155 US) 399 (1852).

5. Story, 497.

6. Story, 497. See also Smith v. Lewis, 3 Johnn 157 (168) (N.Y. 1808) per Kent., C.J. relying on the opinions of "most approved jurists on the law of nations"

7. Story, 508.

8. In a note from his manuscript quoted in Kennedy v Earl of Cassailes, 2 Swans 313, as quoted by Wiscount Baldane in Balveso's case, 1927 AC 641 (659).