Report No. 65

II. Nationality-general Discussions

15.5A. Introductory.-

The next topic to be considered is the nationality of a married woman Legal systems have adopted different approaches in this regard. The possible alternative principles which may govern the nationality of married woman are:1

(1) that marriage shall have no effect; or

(2) that the wife shall take such nationality as shall depend on her own election:

but these are subject to variation. That marriage shall have no effect was the common law rule in England,2 but it was changed by the Naturalisation Act of 1870, for the second rule, and this was in force for some time. It was the rule in the United States until reversed by the "Cable Act" of 1922, and, since then, a British woman marrying a United States citizen does not, without express naturalisation, become a citizen of the United States.3 On the other hand, she loses her British nationality, and is, therefore, Stateless, while a woman of the United States who marries a British subject at the-same time retains American nationality. These cases of statelessness and double nationality are the result of the present contradictory systems. In general, they are avoided under the French nationality law of 1927, which substantially adopts the third rule, and makes the woman's change of nationality depend on her election.3

We consider it essential that married women shall have the right to determine their own citizenship, corresponding to their present equality in respect of property and political rights. The tendency in Europe appears to be to adopt the English rule, and make the wife's nationality follow that of the husband.4 Apart from the abstract point of liberty and equality, this is probably the convenient rule. At any rate, the most pressing matter is to source, not that a married woman shall have any particular nationality, but that she shall not, by marriage, lose her original nationality without gaining another. In other words, the loss of one nationality should be conditional on the acquisition of the other; and this was one of the suggestions of the League of Nations Codifying Committee which dealt with the subject.

There is a careful survey of the whole question in a paper read by Mr. F. Liewellya Jonem, M.P., before the Grotius Society5, where the position was described in detail. As reporters for the International Law Commission, Hudson expressed the following opinion:6

"Under the law of some States nationality is conferred automatically by operation of law, as the effect of certain charges in civil status: adoption, legitimation, recognition by affiliation, marriage. Appointment as teacher at a university also involves conferment of nationality under some national laws. While these reasons for the conferment of nationality have been recognised by the consistent practice of States and may, therefore, be considered as consistent with international law, others have not been so recognised."

1. See 1930 14 144.

2. See 1930 14 144.

3. See 1930 14 144.

4. See 1930 14 144.

5. F. Liewellyn Jones M.P. Transactions of the Grotius Society, (1930), Vol. 15.

6. Yrbk, ILC (1952) 11.8 The rubric employed is: "Conferment of nationality by operation of Law".