nounce sentences of divorce between persons not domiciled in this country; and so by a kind of international reciprocity, the sentences of foreign Courts pronounced upon the matrimonial status of English domiciled subjects should be regarded as valid in this country. 2 The Scotch Courts formerly did not, and those of certain of Theory of the lex fori. the American States do not require a domicil of both parties, or of either of the parties, to found jurisdiction in divorce, but a residence far short of domicil, and even a temporary resort to the country for divorce purposes, is sufficient in those States.' It has been seen that the English Courts, according to the better authorities, require more than the mere presence of the parties in a country to produce amenability to the jurisdiction of the forum, that is, more than a forensic domicil. They require a domicil bona fide and full for all purposes in order to found jurisdiction. Without domicil they refuse to assume jurisdiction, and without domicil in the foreign country they refuse to recognize the divorce there obtained. There are no doubt cases which support a view more in accordance with the earlier Scotch and present American principles, that residence short of domicil will suffice to found divorce jurisdiction; but such are either explicable on the ground that they supply some necessary exceptions to a hard-and-fast rule, or they must be put aside as contrary to the general run of the decisions. The most recent case on this point is Niboyet v. Niboyet, in which the majority of the Court Niboyet v. of Appeal (James and Cotton, L.JJ.; Brett, L.J., dissented) held, reversing the decision of Sir Robert Phillimore,' that residence Residence less of parties in England not amounting to domicil gave the English Divorce Court jurisdiction over their matrimonial relations. The facts were, that A. a domiciled Frenchman married B. an Englishwoman at Gibraltar. A. (with his wife) came to England as a French consul, therefore retaining his French domicil. alleged by B. to have deserted her and committed adultery at various times. Sir R. Phillimore dismissed B.'s petition for dissolution of marriage on the ground of want of jurisdiction. The conclusion arrived at by the two assenting judges of the Court of Appeal was based upon principles which, when applied by the Scotch and other foreign tribunals, the English Courts have stead A. was The principle upon which the Courts of Scotland formerly, and those of some of the American States now proceed is, that the lex fori of the parties alone can determine whether or not they shall be divorced; if it permit divorce, and the parties produce grounds for dissolution of the marriage tie recognized by it, the courts of that forum will assume jurisdiction and grant divorce irrespectively of the law under which the parties were married or any foreign law which may affect them. 2 Deck v. Deck, 29 L. J. P. M. & A. 129; Brodie v. Brodie (ubi sup.). 3 4 P. D. I. + 3 P. D. 52. Niboyet. than domicil. fastly refused to recognize. They held that because the Courts Christian did not recognize nationality or secular domicil of individuals, but only proceeded against them when necessary wherever they found them pro salute animarum, and because the English Divorce Court succeeded to the matrimonial jurisdiction of the ecclesiastical Courts in England by the operation of the Divorce Act, therefore the Court of Divorce must obey the statute, and entertain any matrimonial suits brought by persons resident in England, because a divorce a mensa et thoro was in previous times an ecclesiastical sentence for the benefit of the soul of the guilty party. The logical conclusion of this decision is that if a Frenchman and wife come over to England, and the former commits adultery and cruelty while only temporarily sojourning here, the wife may bring a petition for divorce, and the Courts must entertain it. This decision clothes the English Court of Divorce established under the Divorce Act, 1857, with complete jurisdiction over all married couples temporarily commorant in this country. The legislature has so clothed it probably quite unintentionally. Lord Justice James said he thought he was not overruling any English cases in so holding; but the cases set out below show that it was somewhat too full an assertion; and as the House of Lords has repeatedly held a full and bona fide domicil to be necessary to found divorce jurisdiction, Niboyet v. Niboyet seems to create an exception to the general law of the land on this point. Brett, L.J., strongly insisted upon the principle that the only law which should take upon itself to alter the status of married persons should be the law of their domicil, that is, the husband's domicil; for it is the community of their domicil that is affected by their relation towards one another. In commenting upon Brodie v. Brodie, his lordship quoted the 1 This judgment is in curious contrast with that of the same judges in Sottomayor v. De Barros, 3 P. D. 1. 2 2 Lolley's Case, R. & R. 237; 2 Cl. & F. 567, n.; Warrender v. Warrender, 2 Cl. & F. 288 (Scotch case); Conway v. Beasley, 3 Hagg. Ecc. 639; Yelverton v. Yelverton, 29 L. J. P. M. & A. 34; Tollemache v. Tollemache, 30 L. J. P. M. 115; Fire. brace v. Firebrace, 4 P. D. 63; Ratcliff v. Ratcliff, 29 L. J. P. M. & A. 171; Wilson v. Wilson, L. R. 2 P. & D. 435; (per Lord Penzance); and see Briggs v. Briggs, 5 P. D. 163. The leading American text-writers hold that domicil is necessary for divorce jurisdiction. Story (Conf. Laws, s. 230a) says, "The doctrine now firmly established in America upon the subject of divorce is, that the law of the place of the actual bond fide domicil of the parties gives jurisdiction to the proper courts to decree a divorce for any cause allowed by the local law, without any reference to the laws of the place of the original marriage, or the place where the offence for which the divorce is allowed was committed." Again, Bishop (Mar. and Div., s. 120b) says, “The rule is believed to be that the domicil must be complete and full, in distinction from a quasi domicil, adequate for every other purpose ;" and (s. 124′′) that mere residence as distinguished from domicil is insufficient; but that the residence must not only be permanent but accompanied with an animus manendi. 3 30 L. J. P. M. & A. 185. In the suit it was proved that the husband was an Australian and domiciled in Australia, where both the marriage and the wife's adultery took place, but at the time of the suit was resident in England. : judgment of the Court, which was "We say nothing as to what the effect of the evidence might be in a testamentary suit; we think that the petitioner was bona fide resident here, not casually or as a traveller. After he became resident here, his wife was carrying on an adulterous intercourse in Australia. He is therefore entitled to a decree nisi for a dissolution of the marriage ;" and remarked, "If this was held to be a domicil, it is consistent with all the cases; if it is to be taken as a decision that there can be a minor species of domicil sufficient for one purpose and not for another, I know of no authority or ground of reason for such a distinction. I cannot agree with it." It is to be noticed that the different judges who constituted the House of Lords in the case of Harvey v. Farnie did not in any way accept without questioning the accuracy of the decision in Niboyet v. Niboyet; and laid some stress upon the fact that the Court of Appeal was divided. While it was not obligatory upon them to overrule it, or impugn its authority, they did not accept it as an absolutely accurate decision. Apart from any other considerations, the domicil of the parties ought to be the test of jurisdiction, if only to prevent the risk of collusion, and the scandalous and disgraceful abuse of the Courts of the forum to which they would be subjected by those who resorted to them for the purpose of freeing themselves from the irksome fetters imposed by the law of their domicil. Mere temporary residence within their jurisdiction would otherwise suffice, and every guarantee against fraud and chicanery would be rendered powerless and ineffectual. If Niboyet v. Niboyet is to be taken as an accurate exposition of the law of England, the residence of the petitioning party must be a genuine one, and the proceedings to obtain the decree of dissolution must be free from collusion or fraud.' Again, if it does represent the law of this country, the English Courts will find great difficulty in refusing to recognize the validity of decrees of dissolution of marriage pronounced by competent foreign tribunals of domiciled English subjects resident abroad whether for causes sufficient or insufficient by the law of this country. Indian Christian The decree of the High Court of Judicature in any of the Recognition of Indian Presidencies, dissolving the marriage of British subjects divorces of professing the Christian religion under 24 & 25 Vict. c. 104, British s. 9, the letters patent of December 28, 1865, and the Indian subjects. Divorce Act of 1869, will be recognized in this country." 1 See Bonaparte v. Bonaparte, [1892] P. 402. 2 In the Goods of Nares, 13 P. D. 35. . DOMICIL OF LEGITIMATE CHILDREN PERSON ILLEGITIMATE BY LAW OF DOMICIL OF ORIGIN NO FIXED PERIOD OF UTERO-GESTATION IN ENGLISH LAW. 480 483 484 484 484 . 485 485 486 DOMICIL OF ORIGIN DOMICIL OF FATHER 486 DOMICIL OF FATHERLESS INFANT DOMICIL OF MOTHER 486 PRACTICE UNDER THE ACT DOMICIL OF ORIGIN OF LEGITIMATED CHILD THAT OF FATHER 486 487 488 489 Relation of parent and child. "THE next and most universal relation in nature is immedi- child." The relation of parent and child is an important children (spurii, filii nullius), are those not born in lawful wed- The full and complete legal relations of parent and child in Eng- Legitimacy. land can only exist where the child has been born of his parents in lawful wedlock. Legitimacy is derived from birth in wedlock and from nothing else. The law of England, like that of Rome, recognizes broadly the doctrine pater est quem nuptiæ demonstrant,2 or the paternity of the child is tested or proved only by reason of its having been born of an union sanctioned by the law. The patria potestas, or parental dominion, extends over such a child. Bastards are, according to the stricter interpretation of the law, Illegitimate strangers to those who have brought them into being. The Legislature, however, on ground of public policy, has recognized the natural tie existing between them and their parents, and has imposed the obligation of their support and maintenance upon the latter. This subject of Parent and Child will be treated of under the headings of Legitimate and Illegitimate Children. Legitimate Children. 3 children. Legitimacy is a status arising out of the fact of birth within Status of legitimacy how lawful wedlock, or within a reasonable time after its dissolution, constituted. or an act of legitimation subsequent to birth out of wedlock. By the law of England the full and complete relations of parent and child can only exist where the child has been born of his parents in lawful wedlock. It is true that Blackstone 3 mentions the possibility of legitimation by Act of Parliament in cases where the parents have not married subsequently to the birth, as was done in the case of the bastard children of John of Gaunt, Duke of Lancaster; but practically, as regards persons born of parents domiciled in England at the time of birth, legitimacy alone proceeds from birth in lawful wedlock. For the succession to real property in England on intestacy, the law was and still is that wedlock must precede the birth; as regards the distribution of personal property to be administered in this country the like rule formerly prevailed, but has been lately altered in favour of the 4 2 Just. Inst. Bk. 1, tit. ix. 4 Birtwhistle v. Vardill, 7 Cl. & F. 895. |