COURT OF APPEAL
1877 NOV. 26.
SOTTOMAYOR, OTHERWISE DE BARROS
JAMES, BAGGALLAY, AND COTTON, L.JJ.
Nullity of Marriage – Consanguinity – Marriage illegal by the Law of Domicil.
The petitioner and respondent, Portuguese subjects domiciled in Portugal, and first cousins to each other, came to reside in England in 1858, and in 1866 they went through a form of marriage before the registrar of the district of the City of London. In 1873 they returned to Portugal, and their domicil throughout continued to be Portuguese. By the law of Portugal a marriage between first cousins is illegal, as being incestuous, but may be celebrated under a Papal dispensation:-
Held, reversing the decision of the Court below, that the parties being by the law of the country of their domicil under a personal disability to contract marriage, their marriage ought to be declared null and void.
Simonin v. Mallac (2 Sw. & Tr. 67; 29 L. J. (P. M. & A.) 971) distinguished.
APPEAL by the petitioner from the decision of Sir R. Phillimore, dismissing a petition to have her marriage declared null and void. The facts are fully stated in the report of the case in the Court below(1).
July 20. Inderwick, Q.C., Dr.Tristram, and Bayford, for the appellant. The law of the place governs the forms and ceremonies requisite to a valid marriage: Conway, otherwise Beazley v. Beazley(1); but the cases carry the rule no further. This case is governed in principle by Brook v. Brook(2), where a marriage between a man and his deceased wife’s sister, both being domiciled British subjects, was held invalid, though solemnised in a country where such marriages are lawful. Steele v. Braddell(3) lays down the principles as to minors. They are under no incapacity to marry in England, Scotland, or Ireland, but in England and Ireland consents are required, and in Scotland not. A marriage between English and Irish minors in Scotland was therefore held good, the consents being only a part of the forms and ceremonies. Warrender v. Warrender(4) lays down the same principle, that the lex loci is looked to so far only as relates to the forms and ceremonies.
[COTTON, L.J. In the case of Brook v. Brook(2) the parties were under an incapacity imposed by our own statute law. A case where, on the ground of a foreign law, we are asked to declare a marriage bad, which would have been perfectly good if the parties had been English subjects, seems to be in a different position.]
The cases referred to establish the principle that a marriage between two persons who by the law of the country of their domicil cannot intermarry is void wherever it is solemnised.
Willis, Q.C., and Jacques, for the Queen’s proctor. According to the law of England, the validity of a marriage is determined by the lex loci contractžs, subject to two exceptions, that if a domiciled Englishman applies to the courts of his own country, they will not recognise his marriage if forbidden by our law, and that a marriage which, by the general consent of Christendom, is incestuous, will be deemed invalid, though allowed by the law of the place where it was solemnised. In Brook v. Brook(2) the lex loci is treated as governing the solemnisation and the capacity of the parties to contract. That a marriage generally looked upon as incestuous would not be recognised is admitted, but this is not such. The other exception is illustrated by the Sussex Peerage Case(1), where the marriage was valid according to the laws of Rome, where it was celebrated, but the application was made to the courts of our own country, where such a marriage was illegal under the provisions of the Royal Marriage Act.
[JAMES, L.J. Does your argument involve this – that if the Duke of Sussex had acquired real estate in France, and become domiciled there, his children could have inherited?]
No; the consequences of the marriage must be determined by the law of the domicil. The courts of any country may decline to give to a marriage the full effect which it would have had if conformable to their own law, and yet decline to declare that the parties have been living in concubinage: Burge, Foreign and Colonial Law, i., pp. 184, 188.
JAMES, L.J. Those passages appear hardly consistent with Brook v. Brook.(2)
[BAGGALLAY, L.J. Suppose the parties had gone to Madrid, would they be treated by the courts of Madrid as legally married?]
The courts of Madrid must give effect to the lex loci contractžs. Simonin v. Mallac(3) governs the present case. Conway v. Beazley(4) comes within the principle of Brook v. Brook(2), which is quite consistent with Simonin v. Mallac.(3) The question is discussed in Burge, Foreign and Colonial Law, i., p. 195. Warrender v. Warrender(5) does not apply, for it was a case of divorce, which depends on the domicil. [Wharton on Conflict of Laws, ss. 160, 161, and Ruding v. Smith(6) were also referred to.]
Inderwick, in reply, referred to Story, Conflict of Laws, a 183.
Nov. 26. The judgment of the Court (James, Baggallay, and Cotton, L.JJ.), was delivered by
This is an appeal from an order of the Court of Divorce, dated the 17th of March, 1877, dismissing a petition presented by Ignacia Sottomayor, praying the Court to declare her marriage with the respondent Gonzalo de Barros to be null and void. The respondent appeared to the petition, but did not file an answer or appear at the hearing; and by direction of the judge the Queen’s proctor was served with the petition, and appeared by counsel to argue the case against the petition.
There were several grounds on which the petitioner originally claimed relief, but the only ground now to be considered is that she and the respondent were under a personal incapacity to contract marriage. The facts are these: The petitioner and respondent are Portuguese subjects, and are and have always been domiciled in that country, where they both now reside. They are first cousins, and it was proved that by the law of Portugal first cousins are incapable of contracting marriage by reason of con sanguinity, and that any marriage between parties so related is by the law of Portugal held to be incestuous and therefore null and void; but though not proved, it was admitted before us that such a marriage would be valid if solemnized under the authority of a papal dispensation.
In the year 1858 the petitioner, her father and mother, and her uncle, De Barros, and his family, including the respondent, his eldest son, came to England, and the two families occupied a house jointly in Dorset Square, London. The petitioner’s father came to this country for the benefit of his health, and De Barros for the education of his children and to superintend the sale of wine. De Barros subsequently, in 1861, became manager to a firm of wine merchants in London, carrying on business under the style of Caldos Brothers & Co., of which the-petitioner’s father was made a partner, and which stopped payment in 1865. On the 21st of June, 1866, the petitioner, at that time of the age of fourteen years and a half, and the respondent, of the age of sixteen years, were married at a registrar’s office in London. No religious ceremony accompanied or followed the marriage, and although the parties lived together in the same house until the year 1872, they never slept together, and the marriage was never consummated. The petitioner stated that she went through the form of marriage contrary to her own inclination, by the persuasion of her uncle and mother, on the representation that it would be the means of preserving her father’s Portuguese property from the consequences of the bankruptcy of the wine business.
Under these circumstances the petitioner, in November, 1874, presented her petition for the object above mentioned, and Sir R. Phillimore, before whom the case was heard, declined to declare the marriage invalid and dismissed the petition, but did so, as we understand, rather because he felt himself bound by the decision in the case of Simonin v. Mallac(1), than because he considered that on principle the marriage ought to be held good. If the parties had been subjects of Her Majesty domiciled in England, the marriage would undoubtedly have been valid. But it is a well-recognised principle of law that the question of personal capacity to enter into any contract is to be decided by the law of domicile. It is, however, urged that this doffs not apply to the contract of marriage, and that a marriage valid according to the law of the country where it is solemnised is valid everywhere. This, in our opinion, is not a correct statement of the law. The law of a country where a marriage is solemnised must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted; but, as in other contracts, so in that of marriage, personal capacity must depend on the law of domicile; and if the laws of any country prohibit its subjects within certain degrees of consanguinity from contracting marriage, and stamp a marriage between persons within the prohibited degrees as incestuous, this, in our opinion, imposes on the subjects of that country a personal incapacity, which continues to affect them so long as they are domiciled in the country where this law prevails, and renders invalid a marriage between persons both at the time of their marriage subjects of and domiciled in the country which imposes this restriction, wherever such marriage may have been solemnised. In argument several passages in Story’s Conflict of Laws were referred to, in support of the contention that in an English court a marriage between persons who by our law may lawfully intermarry ought not to be declared void, though declared incestuous by the law of the parties’ domicile, unless the marriage is one which the general consent of Christendom stamps as incestuous It is hardly possible to suppose that the law of England, or of any Christian country, would consider as valid a marriage which the general consent of Christendom declared to be incestuous. Probably the true explanation of the passages in Story is given in Brook v. Brook, by Lord Cranworth(1), and by Lord Wensleydale(2), who express their opinions that he is referring to marriages not prohibited or declared to be incestuous by the municipal law of the country of domicile.
But it is said that the impediment imposed by the law of Portugal can be removed by a Papal dispensation, and, therefore, that it cannot be said there is a personal incapacity of the petitioner and respondent to contract marriage. The evidence is clear that by the law of Portugal the impediment to the marriage between the parties is such that, in the absence of Papal dispensation, the marriage would be by the law of that country void as incestuous. The statutes of the English parliament contain a declaration that no Papal dispensation can sanction a marriage otherwise incestuous; but the law of Portugal does recognise the validity of such a dispensation, and it cannot in our opinion be held that such a dispensation is a matter of form affecting only the sufficiency of the ceremony by which the marriage is effected, or that the law of Portugal, which prohibits and declares incestuous, unless with such a dispensation, a marriage between the petitioner and respondent, does not impose on them a personal incapacity to contract marriage. It is proved that the courts of Portugal, where the petitioner and respondent are domiciled and resident, would hold the marriage void, as solemnised between parties incapable of marrying, and incestuous. How can the courts of this country hold the contrary, and, if appealed to, say the marriage is valid? It was pressed upon us in argument that a decision in favour of the petitioner would lead to many difficulties, if questions should arise as to the validity of a marriage between an English subject and a foreigner, in consequence of prohibitions imposed by the law of the domicile of the latter. Our opinion on this appeal is confined to the case where both the contracting parties are, at the time of their marriage, domiciled in a country the laws of which prohibit their marriage. All persons are legally bound to take
notice of the laws of the country where they are domiciled. No country is bound to recognise the laws of a foreign state when they work injustice to its own subjects, and this principle would prevent the judgment in the present case being relied on as an authority for setting aside a marriage between a foreigner and an English subject domiciled in England, on the ground of any personal incapacity not recognised by the law of this country.
The counsel for the petitioner relied on the case of Brook v. Brook(1) as a decision in his favour. If, in our opinion, that case had been a decision on the question arising on this petition, we should have thought it sufficient without more to refer to that case as decisive. The judgment in that case, however, only decided that the English Courts must hold invalid a marriage between two English subjects domiciled in this country, who were prohibited from intermarrying by an English statute, even though the marriage was solemnised during a temporary sojourn in a foreign country. It is, therefore, not decisive of the present case; but the reasons given by the Lords who delivered their opinions in that case strongly support the principle on which this judgment is based.
It only remains to consider the case of Simonin v. Mallac.(2) The objection to the validity of the marriage in that case, which was solemnised in England, was the want of the consent of parents required by the law of France, but not under the circumstances by that of this country. In our opinion, this consent must be considered a part of the ceremony of marriage, and not a matter affecting the personal capacity of the parties to contract marriage; and the decision in Simonin v. Mallac(2) does not, we think, govern the present case. We are of opinion that the judgment appealed from must be reversed, and a decree made declaring the marriage null and void.
Solicitors for petitioner: Tamplin, Taylor, & Joseph.
Solicitor for respondent: J. P. Poncione.