Brooks v Brooks
| Jurisdiction | England & Wales |
| Judgment Date | 18 March 1861 |
| Date | 18 March 1861 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 703
House of Lords
Mews' Dig. iii. 478; vii. 626, 630, 633, 635, 649; viii. 216. S.C. 7 Jur. N.S. 422 4 L.T. 93; 9 W.R. 461; 5 Rul. Cas. 783; and, below, 27 L.J.Ch. 401; 3 Sm. and G. 481. Considered and acted upon, as to conflict of laws, in In re Alison's Trusts, 1874, 31 L.T. 639; and Sottomayor v. De Barros, 1877, 2 P.D. 87; 3 P.D. 6. As to marriage with deceased wife's sister, adopted in Howarth v. Mills, 1866, L.R. 2 Eq. 392; and Pawson v. Brown, 1879, 13 Ch.D. 205. As to ex-territorial application of English Acts, cf. Whicker v. Hume, 7 H.L.C. 134, and note thereto.
Marriage - Conflict of Laws - Personal Disability - Prohibited Degrees - Statutes 28 H. 8, c. 7, and c. 16 - 32 H. 8, c. 38 - 5 and 6 W. 4, c. 54.
[193] JAMES W. BROOK and Others,-Appellants; CHARLES BROOK and Of-and the ATTORNEY-GENERAL,-Respondents [Feb. 25, 26, 28, March L 18, 1861]. r [Mews' Dig. iii. 478; vii. 626, 630, 633, 635, 649; viii. 216. S.C. 7 Jur. N.S. 422 '*, 4 L.T. 93 ; 9 W.R. 461; 5 Rul. Cas. 783 ; and, below, 27 L.J.Ch. 401; 3 Sm. and G. 481. Considered and acted upon, as to conflict of laws, in In re Alison's Trusts, 1874, 31 L.T. 639; and Sottomayor v. De Barros, 1877, 2 P.D. 87; 3 P.D. 6. As to marriage with deceased wife's sister, adopted in Howarth v. Mills, 1866, L.R. 2 Eq. 392; and Pawson v. Brown, 1879, 13 Ch.D. 205. As to ex-territorial application of English Acts, cf. Whicker v. Hume, 7 H.L.C. 134, and note thereto.] fjfiA : 703 IX H.L.C., 194 BEOOK V. BROOK [1861] Marriage-Conflict, of Laws-Personal Disability-Prohibited Degrees-Statutes 28 H. 8, c. 7, and c. 16-32 H. 8, c. 38-5 and 6 W. 4, c. 54. The forms of entering into the contract of marriage are regulated by the lex loci contractus, the essentials of the contract depend upon the lea, dornicilii. If the latter are contrary to the law of the domicile, the marriage (though duly solemnized elsewhere) is there void. The Marriage Act, 26 Geo. 2, c. 33, only applies to the forms of certain marriages celebrated in this country; it does not touch the essentials of the contract. . It is, therefore, only territorial. The 5 and 6 Will. 4, c. 54, affects all domiciled English subjects wherever they may be transiently resident. It does not affect them when actually domiciled in British Colonies acquired by conquest, where a different law exists. The marriage of a man with the sister of his deceased wife is declared by the 28 Hen. 8, c. 7, to be contrary to God's law; and though that statute itself is repealed, its declarations are renewed in the 28 Hen. 8, c. 16, and 32 Hen. 8, c. 38, which are in force. - Being forbidden by our law, such a marriage contracted by British subjects, temporarily resident abroad, but really domiciled in this country, though valid in the foreign country, and duly celebrated according to the forms required by the law of that country, is absolutely void here. A. and B., British subjects, intermarried; B. died; A. and C. (the lawful sister of B.), being both at the time lawfully domiciled British subjects, went abroad to Denmark, where, by the law, the marriage of a man with the sister of his deceased wife is valid, and were there duly, according to the laws of Denmark, married: Held, that under the provisions of the 5 and 6 Will. 4, c. 54, the marriage in Denmark was void. William Leigh Brook, of Meltham Hall, in the county of York, married in May 1840, at the parish church of Huddersfield, in Yorkshire, Charlotte Armitage. There were two children of that marriage, Clara Jane Brook and James William Brook. In October 1847, Mrs. [194] Brook died. On the 7th June 1850, William Leigh Brook was duly, according to the laws of Denmark, married at the Lutheran church at Wandsbeck, near Altona, iii Denmark, to Emily Armitage, the lawful sister of his deceased wife. At the time of this Danish marriage, Mr. Brook and Miss Emily Armitage were lawfully domiciled in England, and had merely gone over to Denmark on a temporary visit. There were three children of this union, Charles Armitage Brook, Charlotte Amelia Brook, and Sarah Helen Brook. On the 17th September 1855, Mrs. Emily, the second wife of Mr. Brook, died at Frankfort of cholera, and two days afterwards Mr. Brook himself died of the same complaint at Cologne, leaving all the five children him surviving. Mr. Brook, in the early part of the day on which he died, executed a will, by which he disposed of his property among his five children, and appointed his brother Charles Brook, and his two brothers-in-law, John and Edward Armitage, his executors and trustees. In consequence of the state of his property and of some pending purchases of land, and afterwards on account of the death of the infant Charles Armitage Brook, it became necessary to institute an administration suit, and a bill was filed for this purpose in March 1856, which by order of the Court, was amended, and in July 1856, a supplemental bill was filed, making the Attorney General a party to the suit. The causes came on to be heard in March 1857, before Vice Chancellor Stuart, ' when certain inquiries were ordered, and in June 1857, the chief clerk certified (among others) the facts above stated, and the certificate raised the question of the validity of the marriage at Wandsbeck. Evidence was taken on this subject, and several declara-[195]-tions were made by officials and by advocates in Holstein, that the marriage of a widower with the sister of his deceased wife was perfectly lawful and valid in Denmark to all intents and purposes whatever. The cause coming on for hearing, on farther directions, Vice-Chancellor Stuart called in the assistance of Mr. Justice Creswell, who, on the 4th December 1857, declared his opinion that the marriage at Wandsbeck, was by the law of England 704 BROOK V. BEOOK [1861] IX H.L.C., 196 invalid. Vice-Chancellor Stuart on the 17th April 1858, pronounced judgment, fully adopting this opinion, and decreed accordingly. This appeal was then brought. Sir F. Kelly and Mr. Malins (Mr. G. Lake Russell, Mr. Cleasby, and Mr. Freeman with them) for the Appellants.-It is a settled rule of international law, that every contract must depend for its validity on the law of the country in which it is made. Marriage is a contract which falls within this rule. Being valid where it is made, its validity must be accepted throughout the world. There are two exceptions to this general principle: First, where the contract is malum in se. Secondly where, though valid in the country where made, it is by express law prohibited in another country, and all the subjects of this latter country are forbidden any where and under any circumstances to enter into such a contract (Story, Confl. of L., ss. 82, 113, 114, 117, 123). The question here will depend on this second exception. The English law has acknowledged marriages which would have been invalid in this country, to be valid if duly celebrated elsewhere. Marriages by words of present, acknowledgment only are instances of this, Compton [196] v. Bearcroft (Buller's N.P. 113, 114, See 2 Hagg. Cons. Eep. 444n), so as even to entitle the wife to dower here, llderton v. Ilderton (2 H. Bl. 145), Eliding v. Smith (2 Hagg. Cons. Rep. 371), Scrimshire v. Scrimshire (id. 395), in which last case the rule was distinctly declared, though the alleged marriage there was held to be void as being contrary to the law of the foreign country, as well as of the domicile. Gayll (Lib. 2, Obs. 36), is there quoted (2 Hagg. Cons. Rep. 408), for the principle that " constat unumquemque subjici jurisdictions judicis, in eo loco in quo contraxit," and that principle was acted on in Harford v. Morris (id. 423), Butler v. Freeman (Ambl. 303), and Roach v. Garvan (1 Ves. 157), and the converse of it, namely, that the marriages of all subjects celebrated abroad not in accordance with the lex loci are invalid, was asserted in Middleton v. Janverin (2 Hagg. Cons. Rep. 437). Personal laws have no extra territorial application. Paul Voet, and other authorities, all of which are summed up by Story (Confl. of Laws, s. 7, 20-22). A contract valid where made, and capable of being performed anywhere, may be enforced in a country where it could not be legally made, as in the case of the usury laws, Harvey v. Archbold (3 Barn, and Cres. 626), Mill v. Roberts (3 Esp. 163). It is admitted that this principle is not recognised as to- marriage by the law of France, but then the law of France on that matter is an exception to all laws. The Sussex Peerage case (11 Clark and Fin. 85), is not an exception to this rule, for it was held there that the words of the statute expressly attached on the persons of a particular family, and the Duke of Sussex was one of that family. But for that peculiarity, if the marriage had been proved [197] to be valid by the law of Rome, where it was celebrated, it would have been valid here; and so it was held in Sarft v. Kelly (3 Knapp. P.C. Gas. 257), where no such personal disability existed. The case of Birtwhistle v. Vardill (2 Clark and Fin. 671; 7 id. 895), and the recent case of Fenton v. Livingstone (3 McQueen Sc. Ap. Rep. 497), may both be put aside, as they relate rather to the tenure of property than to the law of marriage. In the former, especially, the marriage was undoubtedly valid, and the only question was as to its retroactive effect upon landed property in England. If this marriage should be pronounced invalid here, though validly celebrated in Denmark, it must be on the ground that such marriages are invalid as contrary to the law of God, but that is not expressly asserted by any statute in this country, the only statute which did declare it, 28 Hen. 8, c. 7, having been repealed. In Sherwood v. Ray (1 Curt. 173; 1 Moo. P.C.C. 355) it was considered that such a marriage, though by the canon of 1603 declared to be prohibited by the law of God...
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