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Harvey v. Farnie has shewn first that that doctrine was not established in Lolley's Case, nor in the end entertained by Lord Eldon; but arose from a mistaken view of Lord Brougham, though how the error crept into his mind is not certain; and, secondly, that the theory has never met with any recognition from Conway v. Beazley, 1831, to the present time, but that on the contrary it has always been discarded. It is very probable that the Contractual view of marriage never had a strong hold upon the English Judicial mind, though it would appear that a vague feeling lingered till recent times (in fact, till Harvey v. Farnie) that the place of marriage might have something to do with the question of the jurisdiction of a Court to grant a dissolution accordingly. That fact has been mentioned both with respect to the jurisdiction of the English Court to dissolve a marriage in England (Bond v. Bond, 1860, 2 Sw. and Tr. 93; Santo Teodoro v. Santo Teodoro, 1879, 5 P.D. 79; Simonin v. Maillac, 1860, 2 Sw. & Tr. 67), and with reference to the jurisdiction of a foreign Court to dissolve a marriage celebrated in England (Birt v. Boutinez, 1868, L.R. P. & D. 487; Collis v. Hector, 1875, L.R. 19 Eq. 334) ; or in the country a Court of which has pronounced a decree (Ryan v. Ryan, 1816, 2 Phill. 332; Argent v. Argent, 1865, 4 Sw. & Tr. 52; vide also Ingham v. Sachs, 1886, 56 L.T. 920), or in a third country (Connelly v. Connelly, 1851, 7 Mo. P.C. 438.) It seems apparently that this undefined undercurrent of opinion was due to the fact that McCarthy v. De Caix, though continually dissented from by the most eminent Judges, yet stood as an existing decision that the place of the marriage regulated the question of jurisdiction, and was not expressly overruled in any English case till Harvey v. Farnie.

The doctrine regarding marriage as a mere contract or agreement between the parties, and divorce as a rescission of it, has been shewn to be wrong by Lord Penzance in a

singular case (Mordaunt v. Mordaunt, L.R. 2 P. & M. 103, 126), and by Brett, L.J., in Niboyet v. Niboyet, 1878-79, 4 P.D. 1, and the absurd consequences flowing from carrying the theory to its ultimate results were pointed out long ago. Warrender v. Warrender, 1835;

Shaw v. Gould, 1868.

(ii.) The Penal Doctrine. This view is opposed to the preceding position, divorce being regarded as a punishment for a criminal offence. The jurisdiction of a Court to pronounce a sentence of dissolution is, as in other criminal cases, sufficiently founded by the residence of the parties apart from their domicile, and by the commission of the offence within the country to which the Court belongs. Marriage imposes on the parties duties, in the observance of which the State is so much interested, that a breach thereof is visited by criminal punishment, and hence the fact of the marriage having taken place abroad is immaterial. This principle was adopted by the Scotch Courts in Allerton v. Taosh, Ferg., M. & D. 1; and followed in Duntze v. Levett, Idem, 68; Edmonstone v. Lockhart, Id., 168; Butler v. Forbes, Id., 209; Kibblewhite v. Rowlands, Id., 226; Gordon v. Pye, Id., 276. Vide also Ringer v. Churchill, 2 D. 307; Jack v. Jack, 24 D. 467. By the law of England adultery, though a grievous sin, is not a crime, and the analogies and precedents of Criminal Law have no authority in the Divorce .Court, a Civil tribunal. A divorce is not a criminal proceeding. Mordaunt v. Moncrieffe, 1 H.L., Sc. & Div. 374. Much of the arguments of Lords Justices Cotton and James in Niboyet v. Niboyet, however, seems to point in this direction, and upon this ground, inter alia, the propriety of the decision there may be questioned.

(iii.) The Status Doctrine. This is the theory generally accepted in England, America, and on the Continent. Its best expositors in English law are Lord Westbury, in Shaw v. Gould, and Brett, L.J., in Niboyet v. Niboyet. "Marriage is

the fulfilment of a contract satisfied by the solemnization of marriage; but marriage, directly it exists, creates by law a relation between the parties and what is called their status; that relation between the parties, and that status of each of them, with regard to the community, which are constituted on marriage, are not imposed or defined by contract or agreement, but by law." 4 P.D. II. The question of divorce is not an incident of the marriage contract to be governed by the lex loci contractûs, but is an incident of status to be disposed of by the law of the domicile of the parties. Harvey v. Farnie, 1880, 6 P.D. 35. According to this theory, the Court of the actual domicile alone (or of their own State, where, as in Italy, the civil rights of a person are dependent on his political nationality) has the jurisdiction to dissolve a marriage wherever solemnized. The dissolubility or indissolubility of a marriage must therefore be determined by the law of the existing domicile at the time of the proceedings (Warrender v. Warrender, 1835; Shaw v. Gould, 1868; Manning v. Manning, 1871; Le Sueur v. Le Sueur, 1876), and any and what interference with the status of husband and wife, whether divorce, judicial separation, or restitution of conjugal rights, falls within the exclusive province of the domiciliary Judge (Firebrace v. Firebrace, 1878, 4 P.D. 63; Niboyet v. Niboyet, 1878, 4 P.D. 1; Brett, L.J., Turner v. Thompson, 1888, 13 P.D. 37).

(d.) Grounds of Divorce. Divorce being in the nature of a remedy, the various grounds on which it can be granted must depend on the lex fori of the Court which, at the beginning of the suit, has the proper jurisdiction, viz., the Court of the present domicile. In Lolley's Case the Scotch Courts dissolved the English marriage on the ground of the husband's adultery, a circumstance insufficient by the law of England to entitle a wife to divorce, and this point was mentioned in the judgment. McCarthy v. De Caix, 1835, proceeded on the theory that the competent Court

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was the Court of the locus contractús, and accordingly rejected the Danish divorce for incompatibility of temper. But this case was never followed, and has recently been definitely overruled, and it is now settled that the forum domicilii must decide the question as to what acts and violations will constitute good grounds of divorce. Divorce being an incident of status, it follows that "an Englishman marrying in Prussia, where incompatible tempers may dissolve a marriage, as he marries with a view to the English domicile, his contract will be judged by English law, and he cannot apply for a divorce here on the ground of incompatible tempers." Warrender v. Warrender, 1835, Brougham, L.C., 2 Cl. & F. 535. Again, Suppose now two Roman Catholics, who, having married in Spain, afterwards become Protestants, and are bonâ fide domiciled in England, could it be held that the husband is barred by the lex loci from seeking a divorce here from his wife by reason of her adultery? On the other hand, suppose two Prussian subjects married in Berlin, where a divorce may be obtained for incompatibility of temper, could they, on becoming domiciled in England, claim a divorce on such a ground before the tribunals of this country, where such a ground is not recognised?" Shaw v. Gould, 1868, 3 H.L. 84, Westbury, L.C. The first proposition of Lord Westbury's dictum is illustrated in Le Sueur v. Le Sueur, 1876, where the marriage was indissoluble by the law of Jersey, their matrimonial domicile. The English Court did not grant a divorce, as the husband was not domiciled in England, but the indissolubility under the law of Jersey would have been no bar to a dissolution here if the parties had had an English domicile, having abandoned the Jersey one. In Manning v. Manning, 1871, the husband petitioned for a judicial separation for the desertion of his wife for two years, which was not a matrimonial offence by the law of

Ireland, and the Court held that if the English Court had had jurisdiction the divorce would have followed such desertion, being a ground of divorce here. Wilson v. Wilson, 1872, is an instance of the second example of Lord Westbury. Whatever be the grounds which would furnish a divorce in the matrimonial domicile, the status of the parties upon a subsequent change falls to be governed by the lex fori of the new domicile, and the marriage can be dissolved only for grounds known to the latter law. "From all these considerations, it seems the only Court which on principle ought to entertain the question of altering the relation in any respect between the parties admitted to be married, or status of either of such parties arising from their being married, on account of some act which by law is treated as a matrimonial offence, is a Court of the country in which they are domiciled at the time of institution of the suit." Brett, L.J., Niboyet v. Niboyet, 1878, 4 P.D. 14. "Where, as in this case, the divorce is decreed by the Court of the country where the parties were domiciled, we have nothing to do with the grounds on which the tribunals of that country may proceed in declaring what shall entitle the man and woman to have his or her marriage dissolved." Hannen, P., Harvey v. Farnie, 5 P.D. 155. “Any act done in violation of the duties incident to the status is a matter which concerns the country of the domicile." Cotton, L.J., 6 P.D. 49. In Harris-Gastrell v. Harris-Gastrell, 1890 (Times, 16th June, 1890), an unreported case, the Wiesbaden Court dissolved an English marriage upon the petition of the husband for "malicious desertion" on the part of his wife. Mathew, J., is reported to have told the jury that if the parties were bonâ fide domiciled at Wiesbaden, the Court would have the authority to dissolve the marriage for malicious desertion.

After these general remarks we shall proceed to deal with the application of them to the various circumstances in which

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