REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00347.x |
| Published date | 01 January 1956 |
| Date | 01 January 1956 |
REVIEWS
h
DIVORCE,
LA
SI~PARA~ON
DE
CORPS
ET
LEURS EFFETS
EN
DROIT
INTERNATIONAL
PRIV~
FRAN~AIS
ET
horns.
(fitude de Droit
Cornpar&) By
PETEB
BENJAMIN,
M.A.,
LL.B.(Cantab.), Docteur
en Droit. [Paris: Librairie G6nnQale de Droit et de
Juris-
prudence.
1955.
xi
and
258
pp.]
ONE
must first congratulate Dr. Benjamin upon the successful presentation
of
a
there
du
doctorat
in the University of Paris, now published with the
co-operation of the Centre National de la Recherche Scientifique.
His
subject
is
one of perennially topicnl interest with an abundance of material, both
forensic, and textual, on both sides of the Channel: and exhaustively
is
it
covered, though naturally it
is
divorce which principally engages the authoFs
attention. Dr. Benjamin discusses historically the
rules
of French courts
and those of England for the assumption of jurisdiction to entertain petitions
for divorce or Separation, including the question of
lw
alibi
pendew
and, for
England, the magistrates’ jurisdiction which has no French counterpart; the
choice of law in each country when the municipal courts have jurisdiction;
the effect8 of
a
decree or order in France and England, respectively, both on
the parties themselves (their ability to remarry, the right of the former or
separated wife to retain her husband’s name, etc.) and in such matters
88
awards of damages, custody of and access to issue of the marriage, property
relations nnd ancillary relief generally; and the recognition and enforcement
of foreign decrees or. orders by French and English courts, again with con-
sideration also
of
allied matters. A Preface by Professor RenC David and
comprehensive tables of sources and contents complete
a
work, the general
lay-out of which, it
is
perhaps unnecessary to add, is marked by the clarity
which appears to be
de
curw
in
a
legal text produced in France. For the
reader who wishes
to
know what
are
the rules of French or English private
international law upon nny point concerned with divorce or separation, here
is
the book.
And yet one lays down the work with
a
sense of disappointment, Mainly,
this
is
because of Dr. Benjamin’s method, which
is
to set out on each problem
first the rules of French law and then those of English law, in separate
sections or chapters, indicating
as
they occur the points of divergence. between
or coincidence of the rules of each system. If left
at
that, this has its
defects
as
a
moduu
operand;.
For, while it allows for the demonstration of
what may, without disrespect, be termed the more obvious points of com-
parison and contrast,
it
does not appear to be adapted to going very far
below the surface. For instance, the contrast between the French liberality
in the matter of jurisdiction but particularity in choice of law (resulting
in
nice problems where parties to
a
suit
are
of diffeerent nationalities, stateless
or of multiple nationality) and the Ewlish preoccupation with the problem
of jurisdiction and relative unconcern over choice of law-both in the matter
of themselves entertaining petitions and in the recognition of foreign
decrees
-ie thrown into clear relief:
so
also with the consequence that either
different problems engage the attention of the
two
sets of courts or that the
same problem appears
as
one of choice of law in France while in England it
arises on the plane of jurisdiction. But these surely are inevitable results of
the basic difference of technique, which, though certainly requiring note, must
essentially be accepted and proceeded from. The really interesting thing
is,
what happens then? And that question, unfortunately, usually remains
unanswered. On
a
pure question of internal law, for example, in the
first
place, one would like to know whether the
“cauuer
trdr
restreinter”
of
VOL.
19
101
8
102
TIIE
MODERN
LAW
BEVIEW
VOL.
19
divorce in England do make divorce much more di5cult to obtain
on
this
side of the Channel (pp. 10-11)-if, that is, one takes into account not only
the words of the statute setting out the grounds of divorce but also the
flourishing concept of constructive desertion and some recent kinds of
cruelty.
Or
again,
on
the thorny problem of polygamous marriages, which
incidentally might have received rather more attention, one will seek in vain
for
a
consideration of just how, in the
result,
France and England compare.
PresumabIy, in France where the courts do not deny jurisdiction but would,
through the operation of the concept of
ordre
public,
refuse to grant decrees,
R
change (albeit unlikely) in the latter concept could produce
a
change of
practicei perhaps, indeed,
ordre
public
would not prevent the dissolution of
a
de
fact0
monogamous marriage. But that the reader .must deduce for
himself from p. 20 and p. 69,
n.
182. This preoccupation with the rules as
such gives the work
a
distinctly unpractical flavour.
This tends to characterise also the individual treatment of particular
topics.
In
the matter of English divorce jurisdiction, for instance, the
principles of domicile are explained, with references to
Winam
v.
Att.-Qen.
[1904] A.C. 287, etc., and the difficulty of ousting
a
domicile of origin. True,
there follows the sentence (p.
45)
“
On
pout ntlamoim dhcemr
uw
tendunce
plus
libdrale
b
cet Bgard
dum
certcrines
dQcia’ons
rdcmtes.”
Now could not
this
last, in fact, be further developed rather than be followed by the surely
now dubious observation that it is generally easier to And oneself attributed
a
domicile of choice in the Commonwealth than
in
a
foreign country, for
which reference is made to
Whicker
v.
Hme
(1868) 7 H.L.C. 1241 In
recent reported decisions from, say,
Cruh
v.
Cmh
(1946) 62 T.L.R. 16, how
often has the problem
of
domicile prevented an English court from enter-
taining
a
petition for-or, for that matter, recognising a foreign decree of-
divorce? The point is important because the defects of the English concept
of domicile and judicial insistence on the matter recur throughout the book.
Surely, for effective comparative purposes, the important thing is not the
rules as such but the way
in
which they operate or, at least, are made to
operate. Doubtless because it is written
with
a
view to
a
Fred public, certain concepts of French law are virtually
assumed or cursorily dealt with, while their English counterparts get
a
fuller
treatment, which leads to unbalance; in particular is this the case with the
notions of domicile and
ordre
public.
The treatment of English domiciliary
principles and practice has been mentioned: of the French concept of
domicile-which is important
in
the light of such developments as the
approval by the
Cour
de cassation in
Pafaire
Rividre
(1958) of the selection
of the law of the domicile as the
lex
CMU~Q
in
the divorce of
two
persons of
-different nationality-nothing is said. Similarly, apart from being told
thnt
the English concept of public policy is narrower than that of
ordre
ezcblk,
the reader forms his own impression of the latter convenient and Protean
notion. Equally,
in
the light of the strictures on the English law of domicile,
it is interesting to note that the manner
in
which the theory of
la
fraude
d
la
loi
(when operative in this field) apparently operates only in favour of
France passes without comment.
A distingulshed English comparative lawyer has been known to
say
thnt
comparative law confirms him
in
his initial conviction of the excellence of
the common law. Dr. Benjamin does not share that view in what concerns
the subject-matter of his study. Everyone is, of course, entitled to his own
opinion and certainly
br.
Benjamin is not alone in his strictures
on
this
branch of English private international law
:
most English scholars have
hurled
at
least an occasional brick at this ever-popular Aunt Sally.
No
one
would claim that the position is ideal; but one cannot avoid the impression
that the features above referred to
result,
in this work, in
a
gloomier picture
than current practice suggests.
This, in turn, leads to
a
further point.
J.
A.
C.
THOMAS.
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