The Incidental Question and Capacity to Remarry
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00855.x |
| Date | 01 July 1985 |
| Author | A. J. E. Jaffey |
| Published date | 01 July 1985 |
July 19851
NOTES
OF
CASES
465
a~signment:~ will be the sum a landlord would have been willing to
pay for a voluntary surrender. The trust assets include not only the
lease, however, but also the statutory rights to security
of
tenure
and continuation of the lease.= Liability for breach
of
trust could
therefore also extend to future loss of profits. Where a bona fide
lessee simply wishes the tenancy to end, the application
of
the
principles enunciated in
Sykes
and
Harris
v.
Black
could lead to
injustice.
Featherstone
v.
Staples
indicates that continuing obligations
will not be imposed on such a lessee, but at the expense of a
potentially heavy pecuniary liability for breach of trust.
CHRIS RODGERS*
THE
INCIDENTAL
QUESTION
AND
CAPACITY
TO
REMARRY
IN
Lawrence
v.
Lawrence’
the wife had obtained a divorce from
her first husband in Nevada. The divorce was recognised as valid in
England under section
3
of the Recognition of Divorces and Legal
Separations Act 1971, both on the ground of the first husband’s
United States nationality (section 3(l)(b)) and on the ground that
Nevada uses the concept of domicile as a ground of jurisdiction,
and the wife was domiciled in Nevada at the institution
of
the
proceedings within the meaning of Nevada law (section
3(2)).
The
wife
was however domiciled in Brazil according to English law.
The day after the Nevada decree the wife married the second
husband in Nevada. He was domiciled in England, and after a
brief stay in the United States they set up their matrimonial home
in England in accordance with their agreed plans.
The wife petitioned in England for a decree of nullity in respect
of this second marriage. She claimed that it was void because,
although the Nevada divorce was recognised in England, her
capacity to remarry was governed by the law of Brazil, her
antenuptial domicile, and by that law the Nevada divorce was not
valid. It will be seen that, as
so
often in bigamy cases in the
conflict
of
laws, an incidental question arose.
If
the wife’s capacity
to marry was governed by the law of Brazil as the law
of
her
domicile, and by the law of Brazil she had that capacity only if she
was single, which country’s rules for the recognition of divorces
were to be applied in deciding whether she was single: those of the
lex cawae
(Brazilian law) or of the
lex fori
(English law)? There
was authority that the
lex camae
should determine the validity of
the divorce, principally
R.
v.
Brennvood Superintendent Registrar
See
s.17
Agricultural (Miscellaneous Provisions) Act
1976.
This was accepted,
arguendo,
by Slade L.J. in
Harris
v.
Black
(1984)
46
P.
&
C.R.
366,372.
Lecturer in Law, University College
of
Wales, Aberystwyth.
[1985] 1
All E.R.
506
(Fam.D.);
The Times,
27th March
1985
(C.A.). Transcripts
of
the
Court
of
Appeal judgments were kindly made available by Messrs. Gamlens,
Solicitors.
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