Berthiaume v Dastous

JurisdictionUK Non-devolved
Judgment Date1929
CourtPrivy Council

Canada (Quebec) - Marriage - Marriage solemnized out of Quebec - Marriage null where solemnized - International Law - Construction of Civil Code - Putative Wife acting in good Faith - Right to Alimony - Civil Code,

arts. 156, 164

A marriage between persons domiciled in the Province of Quebec, solemnized in France according to the rites of the Roman Catholic Church, but without a Civil ceremony, being a nullity under French law is a nullity also in Quebec. The Civil Code does not vary the well established rule of international law in the matter, nor does art. 156 give the Court discretion to declare the marriage valid. Under art. 164 however, a marriage though null produces in favour of a putative wife who has acted in good faith civil effects which include a right to alimony.

Judgment of the Court of King's Bench Q. R. 45 K. B. 391 reversed; case remitted to deal with the civil effects of a marriage held null but allowed to be putative, subject to the above decision as to the right to alimony.

APPEAL (No. 127 of 1928) from a judgment of the Court of King's Bench for Quebec (October 30, 1928) affirming a judgment of the Superior Court, District of Montreal (May 30, 1928).

The respondent brought an action against the appellant in the Superior Court claiming that a marriage between herself and the appellant solemnized in Paris be declared valid, that she should be granted an order for separation on the ground of the appellant's misconduct, that the community of property be dissolved, and that alimony should be granted to her; alternatively she prayed that the marriage should be held to have been contracted by her in good faith, and that it produced civil effects, as provided by arts. 163, 164 of the Civil Code of Quebec.

The facts, and the material provisions of the Civil Code of Quebec, appear from the judgment of the Judicial Committee.

The trial judge (Loranger J.) held that although the marriage was void according to the law of France he had discretion under art. 156 of the Civil Code to declare it valid, and that in the circumstances of the case he should exercise that discretionary power. He therefore granted the relief prayed, including an allowance for alimony.

An appeal to the Court of King's Bench (Appeal Side) was dismissed by Greenshields, Guerin, Letourneau, and Hall JJ.; Bernier J. dissenting. The appeal is reported at Q. R. 45 K. B. 391.

1929. June 24. Lafleur K.C., Hon. Geoffrey Lawrence K.C. and Faribault K.C. for the appellant. The marriage being a nullity under the law of France was a nullity in Quebec according to well settled principles of international law. Art. 135 of the Civil Code, which provides that a marriage valid where it is solemnized is valid in Quebec, is exclusive as to the circumstances in which a marriage out of Quebec is to be valid there. Art. 156 does not by its concluding words empower a Court to treat as valid a marriage which is a nullity according to international law. [They were stopped upon that point.] The Court had no power under art. 164 to decree alimony to the respondent. She was not in good faith within the meaning of that article; she could not have supposed that what took place at the consulate satisfied the requirements of the French law. But in any case the civil effects which under art. 164 may be produced by a putative marriage cease as soon as the marriage is declared to be void, consequently alimony cannot be decreed under it in this case. That view is supported by the following: Marcadé, vol. i., no. 696; Planiol et Ripert, vol. ii., no. 330; Sirey, art. 201, no. 32; Baudry, vol. ii., p. 476; Huc, vol. ii., no. 164. A different view is taken by Laurent, vol. ii., nos. 507, 510, 511. Arts. 175 and 211 under which alimony can be allowed by their terms apply only to an actual wife.

Geoffrion K.C. and Pritt K.C. for the respondent. Under the Civil Code the law in Quebec as to marriages solemnized out of the Province differs from the rule of international law. Art. 135 is permissive or enabling; there is no provision that a marriage outside Quebec, not in accordance with the local formalities, is void. The effect of a marriage of that kind has to be ascertained from other articles. On any other construction art. 135 is unnecessary. A marriage not solemnized by a competent officer (art. 128), whether solemnized in Quebec or out of it, is dealt with by art. 156, and under its final words the Court has a discretion to declare the marriage valid. Under the old French law when a marriage was declared void for want of formality there was power to order the celebration of a valid marriage. The final words of art. 156 were added to the article as it stood in the Code Napoléon in order to provide machinery for the exercise of a corresponding relief: see Pothier, Traité du Contrat de Mariage, nos. 361, 365, 451. The circumstances of this case justified the exercise of that discretionary power. If however the Court had not that power under art. 156, nevertheless under art. 164 the marriage produced civil effects in favour of the respondent, as she acted throughout in good faith. Those civil...

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41 cases
  • Taczanowska (orse. Roth) v Taczanowski
    • United Kingdom
    • Court of Appeal
    • 6 June 1957
    ...Lord Chancellor Hardwioke was consulted on it." 6 Lord Dunedin giving his Advice in the Privy Council in ( Berthiause v. Dastous 1930 A.G. 79) at page 83 said: "If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere, although the ceremony......
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    ...capacity must depend on the law of domicile.’ (emphasis added) 66 Viscount Dunedin put it in even stronger terms in Berthiaume v Dastous [1930] A.C. 79, 83 (PC): ‘If a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the proc......
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    ...Bellinger[2003] UKHL 21, [2003] 2 FCR 1, [2003] 2 All ER 593, [2003] 2 AC 467, [2003] 2 WLR 1174, [2003] 1 FLR 1043. Berthiaume v Dastous [1930] AC 79, [1929] All ER Rep 111, PC. Botta v Italy (1998) 4 BHRC 81, ECt HR. Brook v Brook (1861) 9 HL Cas 193, HL. Corbett v Corbett (otherwise Ashl......
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    ...not valid anywhere; Dicey, Morris & Collins, 17–003; Cheshire, North & Fawcett, Private International Law 14 th Ed. (2008) p.878; and Berthiaume v Dastous [1930] AC 79. In its judgment in that case the Privy Council said:, p. 83: "If there is one question better settled than any other in in......
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4 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Archive Conflict of Laws
    • 8 September 2010
    ...308, 310 Berezovsky v. Michaels, [2000] 1 W.L.R. 1004 (H.L.) ....................................... 265 Berthiaume v. Dastous, [1930] A.C. 79, [1930] 1 D.L.R. 849, 47 B.R. 533 (P.C.)......................................................................................... 381 Bessette, Re, ......
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    • Irwin Books Archive Canadian Family Law. Second Edition
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    ...(SCC), Lamont J. See also Alberta (Attorney-General) v Underwood, [1934] SCR 635. Kerr v Kerr, above note 5. (1861), 9 HL Cas 193 [Brook]. [1930] AC 79 proceeding if conducted in the place of the parties’ domicile would be considered a good marriage.9 There is some support for the view that......

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