Correspondence
| DOI | http://doi.org/10.1111/j.1468-2230.1950.tb00165.x |
| Date | 01 April 1950 |
| Published date | 01 April 1950 |
AP~IL
1960
STATUTES
229
1987
or
the
1944
Act, the court exercised jurisdiction without being
the
forum
domicilii.
It
has therefore never been decided whether
English courts apply English law in matters
of
divorce because it
is the law of the domicile
or
because
it
is the law of the court. The
Act appears to assume that the former alternative is correct and
lays down that, where the
lex
fori
is not the
kx
donricilii
it will
in future be applied, not indeed
as
kx
fori
but
8s
a
fictitious
lex
dornicilii.
This solution of the problem is clear and satisfactory,
both from a practical and from a theoretical point
of
view. The
real difficulties begin where the new Act is to be applied to nullity
and (by virtue of section
13
of the
1037
Act) to separation cases.
Separation jurisdiction exists at common law on the alternative
bases of domicile or residence
or
(possibly)
‘
matrimonial home
),
but
8s
Mr.
Cross
points out (Dicey-Morris,
Conflict of
Laws,
6th ed.,
p.
281)
the courts have
so
far always applied English law even where
it was not the law
of
the domicile.
It
may be surmised that they
would also have done
so
in a case arising under section
13
of
the
1037
Act. This, it seems,
is
confirmed by the new Act. The
advantage of this solution is that it brings the practice of the High
Court into line with that
of
the courts of summary jurisdiction.
As regards nullity suits, however, this enactment would appear
to
be devoid
of
meaning. The substantive law governing the
validity
of
marriages is not the law of the domicile at the time
of
the proceedings.
It
is
sometimes the
lea: loci celebraticinis
and,
with regard to other questions, that of the domicile of either spouse
before the marriage (or, possibly, the law of the first intended
‘
matrimonial home
’).
The
‘
issue
’
on the other hand whether for
purposes of English nullity jurisdiction
a
woman can have a separate
domicile depends
on
the law of the husband’s domicile, not at thc
time
of
the petition, but at the time of the marriage.
If,
therefore,
the subsection was intended to alter the law as laid down in
De
Reneville,
it misses its purpose as well. All that remains is a truism,
z‘iz.,
a reference to the English system of the conflict of laws.
0.
KARN-FREUND.
CORRESPONDENCE
Tirc
GENERAI.
EDITO.,
I
nm indeed grnteful to Dr. Hermnnn Mannheim for pointing out the
ambiguity of nn incidental expression of mine in Notes upon
Recent
Scottish
Decisions
[
12
M.L.R.
613],--an ambiguity which flowed from omission of
verbs from the phrase used. My reference to the Continentnl systems had in
mind the origins of
the
Scottish rule
ns
diverging from the English law of
evidence; nnd was not intended
to
stnte the present rule on the Continent
in terms of the Scottish law
of
corroborntion. The ambiguity wns all the
less
pnrdonnble since
I
was nlrendy awnre through,
inter
dia,
Dr.
Mnnnhcim’s
own lenrned contributions that there
is
no longer nn identity
of
view betweeo
the Scottish and the Continental systerns upon sufficiency
of
proof.
T.
B.
SMITH.
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