domicil is determined by the two elements of actual residence and intent, as in other cases; while the wife acquires by marriage the domicil of the husband, and changes it as his changes. (1) 602 And in such case the wife's rights in and to the property of the husband, or her own, would be determined by the law of that domicil, so far at least as relates to the personal property of both, and the real property of the husband. If the wife had real property in the country of her own domicil, hers and her husband's rights in respect to it might now be governed by the lex loci rei sitæ. (7) See ante, p. * 581, n. (b). But the wife may, so far as the question of divorce is concerned, have a domicil distinct from that of the husband. In Harteau v. Harteau, 14 Pick. 181, Shaw, C. J., after considering certain questions arising in the case which have no direct bearing upon this point, says: "This suggests another course of inquiry, that is, how far the maxim is applicable to this case, that the domicil of the wife follows that of the husband. Can this maxim be true, in its application to this subject, where the wife claims to act, and by law, to a certain extent and in certain cases, is allowed to act adversely to her husband? It would oust the court of its jurisdiction, in all cases where the husband should change his domicil to another State before the suit is instituted. It is in the power of a husband to change and fix his domicil at his will. If the maxim could apply, a man might go from this county to Providence, take a house, live in open adultery, abandoning his wife altogether; and yet she could not libel for a divorce in this State, where, till such change of domicil, they had always lived. He clearly lives in Rhode Island; her domicil, according to the maxim, follows his; she, therefore, in contemplation of law, is domiciled there too; so that neither of the parties can be said to live in this Commonwealth. It is probably a juster view to consider that the maxim is founded upon the theoretic identity of person and of interest between husband and wife, as established by law, and the presumption, that from the nature of that relation the home of the one is that of the other, and intended to promote, strengthen, and secure their interests in this relation, as it ordinarily exists, where union and harmony prevail. But the law will recognize a wife as having a separate existence, and separate interests, and separate rights, in those cases where the express object of all proceedings is to show that the relation itself ought to be dissolved, or so modified as to establish separate interests, and especially a separate domicil and home, bed and board being put, a part for the whole, as expressive of the idea of home. Otherwise, the parties in this respect would stand upon very unequal grounds; it being in the power of a husband to change his domicil at will, but not in that of the wife." Mr. Bishop, in his work on Marriage and Divorce, § 730, after quoting from the preceding case, says: "And the doctrine that, for purposes of divorce, the wife may have a domicil separate from her husband, is well established in the American tribunals, although some of the authorities would seem to take the distinction (it is submitted without proper foundation), that a wife cannot lose her domicil by the husband's change of residence after the offence is committed, yet cannot on the other hand acquire a new one. Indeed it has been distinctly laid down, that the wife cannot, by a removal of her habitation after the commission of the offence, acquire a new jurisdiction in which to prosecute her claim for divorce, though it is believed that the preponderance of American authority, as well as weight of argument, is greatly the other way.' See further, on this question, Irby v. Willson, 1 Dev. & Bat. Eq. 568, 582; Frary v. Frary, 10 N. H. 61; Harding v. Alden, 9 Greenl. 140; Sawtell v. Sawtell, 17 Conn. 284; Brett v. Brett, 5 Met. 233; Tolen v. Tolen, 2 Blackf. 407; Jackson v. Jackson, 1 Johns. 425; Maguire v. Maguire, 7 Dana, 181; Pawling v. Wilson, 13 Johns. 192, 208. If the husband and wife have been separated by a judicial decree, and are liv ing separate, the domicil of the wife is independent of that of the husband. Williams v. Dormer, 2 Robb, Ecc. R. 505, 9 Eng. L. & Eq. 598. SECTION VIII. OF FOREIGN DIVORCES. The relation of the law of place to the subject of divorce presents questions of much difficulty. And although many cases involving some of these questions have been decided after very full consideration, both in England and in this country, some topics remain, in relation to which there exists at present much uncertainty. The law of divorce differs greatly in different countries, because marriage itself is viewed under so great a diversity of aspect. The Catholic Church regards it as a sacrament, over which the civil law and civil tribunals have no power whatever, and which can only be dissolved by the supreme spiritual power of the Church. Protestants deny it to be a sacrament. They regard it as a civil contract, of a religious character it may be, and therefore properly associated with religious ceremonies; but wholly within the power of the civil authority. But England, which was Catholic while its common law was in course of formation, had no means provided for effecting divorce after it became Protestant; and in that country, complete divorce a vinculo was effected only by parliament, until the statute of 20 and 21 Vict. ch. 85, constituted a special court for the trial of such questions, with full power to decree a dissolution of the marriage. We suppose that in all Protestant countries judicial tribunals may grant divorces a vinculo. In the States of this Union, divorce is granted by the tribunals, for reasons which are defined by statute. In some States these causes are *603 limited to adultery, and facts of equivalent character; and in others are extremely liberal, not to say lax. And in some of the States it is the custom of the legislatures to grant divorces. by private acts, and in practice this is sometimes done for very feeble reasons, and almost without other reason than the request.1 The question must therefore be one of much difficulty how far a State will recognize the validity of a foreign divorce, granted, perhaps, for causes which the law of the tribunal trying the question would hold to be wholly insufficient. The general rule is certainly this. A divorce granted in a • State in which both parties had their actual domicil, and also 1 In South Carolina alone, no divorces whatever are granted. See 1 Bishop, Mar. Div. & Sep. § 58. — W. were married, is valid everywhere. (m) Then it may be said that, generally, every State recognizes the validity of a divorce granted where both parties have their actual domicil, if granted according to the law of that place. (mm) It has been very authoritatively declared to be the law of England, that the tribunals of that country acknowledge no foreign divorce of an English marriage. (n) 1 A more careful consideration of the (m) Story's Confl. of Laws, § 201; 2 Kent Com. 108. It would not be easy to find this rule established by distinct adjudications, for the reason that it is too well settled to be questioned. 223. (mm) Standridge v. Standridge, 31 Ga. (n) In Lolley's case, Russ. & Ry. Cr. Cases, 237, English subjects were married in England; the husband went to Scotland; there he was divorced a vinculo; he returned to England and married there, his first wife living; he was indicted for bigamy, convicted, and sentenced to transportation. Lord Brougham, in deciding M'Carthy v. Decaix, 2 Russ. & M. 614, 619, comments upon Lolley's case, and upon Lord Eldon's remarks upon it, and says: "I find, from the note of what fell from Lord Eldon on the present appeal, that his lordship labored under considerable misapprehension as to the facts in Lolley's case; he is represented as saying he will not admit that it is the settled law, and that therefore he will not decide, whether the marriage was or not prematurely determined by the Danish divorce. His words are, I will not without other assistance take upon myself to do so.' Now, if it has not validly and by the highest authorities in Westminster Hall been holden, that a foreign divorce cannot dissolve an English marriage, then nothing whatever has been established. For what was Lolley's case? It was a case the strongest possible in favor of the doctrine contended for. It was not a question of civil right, but of felony. Lolley had bona fide, and in a confident belief, founded on the authority of the Scotch lawyers, that the Scotch divorce had effectually dissolved his prior English marriage, intermarried in England, living his first wife. He was tried at Lancaster for bigamy, and found guilty; but the point was reserved, and was afterwards argued before all the most learned judges of the day, who, after hearing the case fully and thoroughly discussed, first at Westminster Hall, and then at Sergeant's Inn, gave a clear and unanimous opinion, that no divorce or proceeding in the nature of divorce in any foreign country, Scotland included, could dissolve a marriage contracted in England; and they sentenced Lolley to seven years' transportation. And he was accordingly sent to the hulks for one or two years; though in mercy the residue of his sentence was ultimately remitted. I take leave to say, he ought not to have gone to the hulks at all, because he had acted bonâ fide, though this did not prevent his conviction from being legal. But he was sent notwithstanding, as if to show clearly that the judges were confident of the law they had laid down; so that never was there a greater mistake than to suppose that the remission argued the least doubt on the part of the judges. Even if the punishment had been entirely remitted, the remission would have been on the ground that there had been no criminal intent, though that had been done which the law declares to be felony. I hold it to be perfectly clear, therefore, that Lolley's case stands as the settled law of Westminster Hall at this day. It has been uniformly recognized since; and in particular it was repeatedly made the subject of discussion, before Lord Eldon himself, in the two appeals of Tovey v. Lindsey, 1 Dow, 117, 131, in the House of Lords, when I furnished his lordship with a note of Lolley's case, which he followed in disposing of both those appeals, so far as it affected them. That case then settled that no foreign proceeding in the 1 As to divorce in England of foreign subjects, see Le Sueur v. Le Sueur, 1 P. D. 139; Niboyet v. Niboyet, 3 P. D. 52. An English divorce court will recognize a Scotch divorce of persons there domiciled who were married in England, Harvey v. Farnie, 5 P. D. 153; but not a divorce in the United States of persons married in England if one party went there without the other involuntarily, or without a transfer of domicil. Briggs v. Briggs, 5 P. D. 163. — K. 604 605 cases would, however, lead to the conclusion, that the established rule in England goes no further than that an English marriage cannot be terminated by a foreign divorce, unless both parties are actually domiciled in the country where the divorce takes place. All the courts in this country, and all our legislatures, do not go so far as this; for some hold and practise upon the rule, that if the parties, or indeed if only the party seeking the divorce, is within the jurisdiction of the court by a present domicil, it is enough, without nature of a divorce in an ecclesiastical court could effectually dissolve an English marriage." But in Conway v. Beazley, 3 Hagg. Ecc. R. 639, 643, Dr. Lushing ton says: "Cases have been cited in which it is alleged, that a final decision has been pronounced by very high authority upon the operation of a Scotch divorce on an English marriage; that it has been determined that a marriage celebrated in England cannot be dissolved by the sentence of a Scotch tribunal; that the contract remains forever indissoluble. The authorities principally relied upon for establishing that position are the decisions of the twelve judges in Lolley's case, and the decision of the present Lord Chancellor on a very recent occasion. If those authorities sustained to its full extent the doctrine contended for, the court would feel implicitly bound to adopt it; but I must consider whether in Lolley's case it was the intention of those very learned persons to decide a principle of universal operation, absolutely and without reference to circumstances, or whether they must not almost of necessity be presumed to have confined themselves to the particular circumstances that were then under their consideration. Lolley's case is very briefly reported, none of the authorities cited on the one side or on the other are referred to, nor are the opinions of the learned judges given at any length; all that we have is the decision. It is much to be regretted that some more extended reports of the very learned arguments which I well remember were urged upon that occasion, and the multitude of anthorities quoted, have not been communicated to the profession and to the public. In that case the indictment stated that on the 18th of July, Lolley was married at Liverpool to Ann Levaia, and afterwards to Helen Hunter, his former wife being then living. It was proved that both marriages were duly solemnized at Liverpool, that the first wife was alive a week before the assizes, and that the second wife agreed to marry the prisoner if he could obtain a divorce. The jury did not find that any fraud had been committed, but there does not appear to have been any discussion upon the very important question of domicil. A case in which all the parties are domiciled in England, and resort is had to Scotland (with which neither of them have any connection) for no other purpose than to obtain a divorce a vinculo, may possibly be decided on principles which would not altogether apply to a case differently circumstanced; as where, prior to the cause arising on account of which a divorce was sought, the parties had been bonâ fide domiciled in Scotland. Unless I am satisfied that every view of this question had been taken, the court cannot, from the case referred to, assume it to have been established as a universal rule that a marriage had in England, and originally valid by the law of England, cannot under any possible circumstances be dissolved by the decree of a foreign court. Before I could give my assent to such a doctrine (not meaning to deny that it may be true), I must have a decision after argument upon such a case as I will now suppose, namely, a marriage in England, the parties resorting to a foreign country, becoming actually bonâ fide domiciled in that country, and then separated by a sentence of divorce pronounced by the competent tribunal of that country. If a case of that description had occurred, and had received the decision of the twelve judges, or the other high authority to which allusion had been made, then indeed it might have set this important matter at rest, but I am not aware that that point has ever been distinctly raised, and I think I may say with certainty that it never has received any express decision." asking whether the party came there merely for the purpose of obtaining the divorce. (o)(x) * In this country, the law on this subject is regulated very generally by statutes; and those differ very much, and are * 606 still subject to not unfrequent change. In the absence of statutory provision, we should incline to think, that the courts would generally hold a divorce which was valid where granted, and was obtained in good faith, valid everywhere. Perhaps it may be said, that the tendency of American law is (0) There is but little uniformity among our different States, either as to statutory provisions on this subject, or the principles belonging to it as settled by adjudication, or the application of these principles to cases, or in the practice and usage of legislatures in relation to legislative divorces. Mr. Bishop, from a very full consideration of the American cases, deduces the following rules: "1. The tribunals of a country have no jurisdiction over a cause of divorce, wherever the offence may have occurred, if neither of the parties has an actual bond fide domicil within its territory. Nor is this proposition at all modified by the fact, that one or both of them may be temporarily residing within reach of the process of the court, or that the defendant appears and submits to the suit. This is the firmly established doctrine both in England and America." As authorities for this rule he cites Conway v. Beazley, 3 Hagg. Eccl. R. 631; Rex v. Lolley, Russ. & Ry. Cr. Cas. 237; Sugden v. Lolley, 2 Clark & F. 567, n.; Fellows v. Fellows, 8 N. H. 160; Hanover v. Turner, 14 Mass. 227; Barber v. Root, 10 Mass. 200; Pawling v. Bird, 13 Johns. 192; Jackson v. Jackson, 1 Johns. 424; Bradshaw υ. Heath, 13 Wend. 407; Maguire v. Maguire, 7 Dana, 181; Tolen v. Tolen, 2 Blackf. 407; Freeman v. Freeman, 3 West. Law Jour. 475; White v. White, 5 N. H. 476.2. To entitle the court to take jurisdiction, however, it is sufficient that one of the parties be domiciled in the country; it is not necessary that both should be, nor that the citation, when the domiciled party is plaintiff, should be served personally upon the de (x) See 2 Kent Com. (14th ed.) *107 and notes; 2 Bishop on Mar. & Div. (ed. 1891), §§ 48-75; Magowan v. Magowan (57 N. J. Eq. 322), 73 Am. St. Rep. 645 and note. The full faith and credit required by the U. S. Constitution to be fendant, if such personal service cannot be made." Harteau v. Harteau, 14 Pick. 181; Harding v. Alden, 9 Greenl. 140; Mansfield v. McIntyre, 10 Ohio, 27; Tolen v. Tolen, 2 Blackf. 407; Hull v. Hull, 2 Strobh. Eq. 174. —“3. The place where the offence was committed, whether in the country in which the suit is brought, or a foreign country, is quite immaterial. This is the universal doctrine; it is the same in the English, Scotch, and American courts, and there is no conflict upon the point. 4. The domicil of the parties, at the time the offence was committed, is of no consequence; the jurisdiction depends upon their domicil at the time the proceeding is instituted, and judg ment rendered. A contrary doctrine has been maintained in New Hampshire and Pennsylvania, in which States it is held, that the tribunals of the country in which the parties were domiciled when the delic tum occurred, have alone the jurisdiction." In support of the New Hampshire and Pennsylvania rule, he cites Clark v. Clark, 8 N. H. 21; Frary v. Frary, 10 id. 61; Smith v. Smith, 12 id. 80; Greenlaw v. Greenlaw, id. 200; Batchelder v. Batchelder, 14 id. 380; Dorsey v. Dorsey, 7 Watts, 349; Hollister v. Hollister, 6 Penn. St. 449.5. It is immaterial to this question of jurisdiction, in what country, or under what system of divorce laws the marriage was contracted.-6. The view we have taken is in no way controlled by that provision in the United States Constitution which prohibits the States from passing laws impairing the obligation of contracts.' See Bishop on Marriage and Divorce, § 721 et seq. given to the judgments of sister States applies to divorce decrees when based on sufficient jurisdiction over the parties. Trowbridge v. Spinning (Wash.), 54 L. R. A. 204 and note. |