REFORM IN THE PRIVATE INTERNATIONAL LAW
OF DIVORCE
A Comparative Study of two recent Draft Codes.
B. D. Inglis*
Although Conflict of Laws, at least at University level, may be regarded as
one of the more esoteric subjects, no-one could deny that practical questions of
jurisdiction in divorce causes between foreign parties and recognition of foreign
divorces and nullity decrees are, in both Canada and England, of some difficulty
and complexity, and the fact that such cases do not arise very often does not
make these questions of any less importance. For this reason, the outcome (if
any) in England of the recommendations of the Royal Commission on Marriage
and Divorce, presented to the United Kingdom Parliament in March, 1956,1
especially the possible effect on any proposed legislation of the Commission’s
recommended Code on Jurisdiction and Recognition, 2 will be awaited, if not
with some foreboding,3 at least with interest.
Almost contemporaneously with the release of
the Royal Commission’s
Report and recommendations, the Draft Family Code for the State of Israel
was released in translation by the Harvard Law School. 4 This latest develop-
*Senior Lecturer in English and New Zealand Law at Victoria University College,
Wellington, New Zealand;
formerly of the University of Chicago Law School,
British Commonwealth Fellow and Bigelow Teaching Fellow; presently of the Uni-
versity of Michigan Law School, Ann Arbor, Michigan, U.S.A., Research Fellow.
‘Report of the Royal Commission on Marriage and Divorce
(1951-1955), Cmd.
9678. The significant sections of the Report for our purposes are paragraphs 772-919,
and the Commission’s Draft Code on jurisdiction and Recognition, annexed
to the
Report as Appendix IV, pp. 394-396.
2See supra, note 1.
3The provisions of the Draft Code in reference to their possible effect on the existing
English and New Zealand Law are exhaustively discussed by Mr. J. W. Davies and the
present writer in Divorce, the Royal Commission, and the Conflict of Laws, (1957)
. It is there emphasized that although there are some
6 Am. Journ. Comp. L., 215.
sections of the Commission’s Code which undoubtedly constitute an improvement on
the English common law rules, the Code-as a whole is more a manifestation of pro-
gressive academicism that a Code of practical measures to overcome practical problems,
and in the event of its wholesale adoption would be likely to create more difficulties
than it is aimed at alleviating.
4The Israeli Draft Family Code was prepared and annotated by the Israeli Ministry
of Justice, and translated by the Harvard-Brandeis Co-operative Research on Israel’s
Legal Development. The translation from the original Hebrew was made to enable
the staff and consultants of the Harvard-Brandeis research programme to comment
on the Code, and “to call the attention of interested members of the legal profession
here [iri the United States] and abroad to the legislative problems of Israel.”: Draft
Family Code, p.i (Translator’s Note).
No. 1]
PRIV. INTER. LAW OF DIVORCE
interest and importance. The Royal Commission’s
ment is of considerable
Draft Code was prepared by English lawyers, working against a background
and within the framework of the existing English common law, and departs
to no very great extent from existing common law concepts. The Israeli Draft
Code, on the other hand, although necessarily similarly prepared against a
background of the English common and ordinance law imposed in Palestine
under the Palestine Mandate, and reflecting to a certain extent Jewish Biblical
and Rabbinical precepts, 5 has also as its basis the influence of lawyers trained
in a wide variety of European legal systems, and it may be assumed that the
Draft Code represents, at least in its Conflict of Laws section, a synthesis of
what its framers thought were the most desirable aspects of a number of legal
systems. 6
No-one would be sufficiently insular to say that the English Common Law
system of Conflict of Laws did not have its imperfections: nor would one
expect that its imperfections could be lessened to any significant degree by
elaborating on them, as the Royal Commission appears to have done. In
marked contrast, whether one agrees with its provisions or not, the Israeli
Draft Code must be regarded as of exceptional interest to both practitioners
and academicians alike as a significant and instructive experiment in Com-
parative Law :7 it is very much more than a new approach to old problems.
It is hoped that this rather lengthy preamble will have served to indicate
not only that it is the purpose of this article to examine the provisions of the
Israeli Draft Family Code in some detail, and to compare them with the
provisions of the Royal Commission’s Draft Code, but also that it is of more
than academic significance to do so.
I. DOMICIL.
The English law of domicil has the very positive virtue of certainty, but
in what may in fact be isolated cases has the equally positive disadvantage of
5These have not intrptded to any large degree into the sections of the Draft Family
Code dealing with the Conflict of Laws. An excellent study of Jewish family law
is to be found in Horowitz, The Spirit of Jewish Law (:New York,
(in English)
1953), Chapters XVII-XIX.
6For example, in drafting the sections on domicil (discussed post, pp. 4 48..) the
laws of the following countries were considered: France, Italy, Spain, Portugal,
the
Germany, Egypt, Argentine, Brazil, Mexico, Switzerland, Great Britain, and
United States. See the Draft Family Code, Comment, pp. 26-27, for an illuminating
discussion of these various laws.
7Comparative Law, as a field of study, is of fairly recent origin, and is fully dis-
cussed as such in the first issue of the American Journal of Comparative Law: (1952)
1 Am. Journ. Comp. L. See pirticularly Professor Hessel E. Yntema, Comparative Legal
Research, (1956) 54 Mich. L. Rev., 899, and Comparative Legal Studies and the Mission
of the Law School, (1957), 17 Louisiana L. Rev., 538, which, incidentally, contain highly
stimulating and not unjustified strictures on American legal education. See also Rhein-
stein, (1952) 1 Am. Journ. Comp. L. 95-114.
McGILL LAW JOURNAL
[Vol. 4
unreality.8 It also bestows on married woman what has appeared to some0 to
be the disability of being unable to acquire a domicil apart from that of her
husband.10 The difficulties arising in divorce cases from this legal inconvenience
the Royal Commission sought to remove by recommending’1
that residence
of both parties, or either party (if the marriage was celebrated in England)
should be sufficient to found jurisdiction, provided that a decree is not to be
pronounced unless the personal law of both parties recognizes as a sufficient
ground for divorce a ground substantially similar to that on which a decree
is granted in England, or the personal law of both ‘parties would in the
circumstances of the case permit the petitioner to obtain a divorce on some
other ground. The further difficulties inherent in this recommendation are
discussed later,’12 but it is sufficient to point out here that the Royal Com-
mission made no attempt to remedy whatever defects it found in the existing
law of domicil’ 3 by recommending a change in the law of domicil itself.
The drafters of the Israeli Draft Family Code have, on the other hand, chosen
to solve the problem of domicil, not by substituting the concepts of nationality,
or residence with a greater or less degree of animus mnanendi, but by redefining
the concept :14
.28. A person’s domicii is the place which is the centre of his life.
.31. Where a person’s domicil is unknown, his residence is deemed to be his
domicil.
.30.15 An individual’s residence is the place where he resides, either permanently
or temporarily.
It will be seen at once that the common law concept of the domicil of
origin is excluded from this definition, and whether this is likely to appeal
to common law lawyers is a question which turns on a number of factors.
For practical purposes, as applied to persons of full age,”, the domicil of
origin is a purely fictional device used for ensuring that in cases where domicil
SWinans v. Attorney-General [1904] A.C. 287 and Rainsay v. Liverpool Royal In-
firmary [1930] A.C. 588 are leading cases which are also examples of the extremes to
which the law on this point has been taken.
9Report of Royal Commission, paras. 791, ff. And see discussion, post, pp. 43. ., ff.
‘ 0This is not strictly a disability in cases where a married woman in England, whose
husband has acquired some other than an English domicil, petitions for a divorce under
s.18(1) (b) of the Matrimonial Causes Act, 1950. It should, however, be emphasized
that the jurisdictional fact here is residence, and not, as
in other Commonwealth
countries, domicil.
“lDraft Code, section 1.
l2Post, p. 49.
13But see the Report of the Standing Committee on Private International Law
(1954), Cmd. 9068, in which the present English law of domicil comes under severe
criticism; and see the Report of the Royal Commission on Marriage and Divorce,
paras. 791, ff.
‘ 4See note 6, supra.
‘ 5The sections are rearranged here for the sake of convenience in discussion.
‘ 6The domicil of minors and incompetents is considered, post, p..4f..
No. 1]
PRIV. INTER. LAW OF DIVORCE
is relevant it is always possible to ascertain what the domicil is. Hence, where
an individual dies in transit from a country which he has made his domicil
of choice, to another country which would have become his new domicil of
choice had he arrived there, his domicil at the time of his death is settled as
his domicil of origin in a third country. The fact that he may have left that
country at the age of two, and remained out of it all his life withQut any
thought of returning to it makes no difference.
Now if, as has always been said to be the case, the concept of domicil is
founded basically on the idea that the law of the country with which the
individual has.the closest real connection should govern a given situation, it is
immediately seen that there are serious disadvantages in adopting any unduly
technical or formalistic means of arriving at a finding of that connection.
It can hardly be said that, in the example given above, there is any real con-
nection, if indeed any connection whatever, between the deceased and the law
of the country of his domicil of origin. While there is, as has been indicated,
the advantage that the individual’s affairs can never be without a connecting
link to a given legal system, the main difficulty is seen to lie in the means used
to choose that system, and in the nature of the connecting link. In some cases,
such as the above example, the introduction’ of the domicil of origin is to
provide a connecting link which is entirely insubstantial and unreal; it is
similarly easy to visualize situations in which nationality, as a connecting
link, could be even more unreal, just as residence alone, as a connecting link,
may in certain circumstances be far too weak.
The concept of “the centre of an individual’s life” as a connecting link,
on the other hand, not only avoids the technicalities and fictions involved in
the concept of the domicil of origin, but also, when considered in relation to
.30 and 31 of the Draft Code, provides sufficient flexibility to overcome
the difficulties inherent in the concept of the domicil of choice. 17 There may
be, however, in certain cases difficulties involved in the ascertainment of the
“centre of a person’s life” which are not satisfactorily solved by the pre-
sumption applied by .31,
to be his
domicil when the “centre of his life” is unknown, and the further provision
in .30, defining residence for the purposes of the Draft Family Code as
that a person’s residence is deemed
laws
is
the
‘intention
to remain’,
17″Another element emphasized in some
the
aniinus inanendi. See, e.g., the Mexican Code ‘place of abode in which one lives with
the intention to settle’ and particularly the Swiss Code ‘the place at which one stays
with the intention of remaining permanently.’ In Anglo-American law, intention forms
a separate, subjective factor in addition to the factual prerequisites for creating a
domicil; this is also the law in France with respect to change of domicil (Sec. 103 of
the Civil Code). We prefer to base our definitions only on the objective aspect. In-
tention is no more than one of the date that the judge will consider in determining
the ‘centre of life’. It is not an independent factor strong enough to take the place
of other factors (as in the Swiss definition), nor is it an additional requirement (as
in England and Mexico)”: Comment on .28, p. 27.
McGILL LAW JOURNAL
[Vol. 4
either permanent or temporary. The Comment to .28 gives the example of
an immigrant who dies aboard ship on his way to Israel, points out that in
such a case English law would distribute his estate according to the law of
and indicates that “[u]nder
his father’s domicil at the time of his birth,’
our Bill, the law having the closest connection with the matter and with the
deceased’s presumed intent will apply, i.e., the law of Israel where that person’s
‘centre of life’ is already situated at that time.”‘ 9
As an example chosen by the drafters to illustrate the proposed effects of the
Code, this is not perhaps the most fortunate. The question whether an in-
dividual has his “centre of life” in a specified country is apparently to be
answered by reference to objective facts, the individual’s intention being of
relatively minor importance. 20 In the case of a Jewish immigrant on his way
to Israel it is no doubt true to say that Israel is even at that stage the “centre
of his life”, and that his present intention is not a factor, compared with other
factors, of any great weight. In other cases, however, where there are no
strong religious, political, family or other ties, it is difficult to say that merely
because a person is immigrating to a country it is the centre of his life, without
also saying that it is the individual’s intention that that country shall be the
centre of his life when he gets there and settles in.21 It is doubtful whether the
bare wording of .2822 can be taken so far as to include this type of situation
in all cases.
If the above analysis is correct, it would seem that the average, e.g.,
emigrant, who has renounced his former country as the “centre of his life”,
can hardly say that his life has a centre in the territorial sense, or that he has
a residence, while he is in transit.23 A solution to the difficulty by imputing
to such an emigrant the domicil of the country to which his ship or his aircraft
belongs could conceivably lead to odd results. It is hard to see how this type
of problem could be solved without resorting to some type of fictional domicil,
residence, or “centre of life”. English law, as has been said, escapes the
difficulty by referring to the domicil of origin, and the principal question the
prospective reformer will have to answer is which fiction is most objectionable.
The domicil of minors and incompetents is regulated by a separate section
of the Draft Family Code:
18Assuming, of course, that he was legitimate.
‘ 9 Draft Family Code, p. 27.
2 0 See Draft Family Code, Comment, p. 27; note 17, supra.
2 1There may, of course, be factors which would tend to lessen the difficulty of such
a situation, such as the purchase by the immigrant of a home in the country to which
he is immigrating.
2 2 As read with .30 and 31.
231
is not perhaps too fantastic in this connection to use as examples the inter-
national tramp, who wanders from country to country doing odd jobs, being never
more than a transient in any, or the retired millionaire whose only “residence” is his
caravan, or the person who sleeps, and has part of his social life in Windsor, Ontario,
but does all his business and has an equal amount of social life in Detroit, Michigan.
No. 1]
PRIV. INTER. LAW OF DIVORCE
.29. A minor and an incompetent shall be presumed to have the domicil of his
parents or the parent in whose custody he is, or of his guardian, unless he is shown
to have another domicil. 24
It is seen that those responsible for drafting the Code have rejected the
concept of the “derivative” domicil. In the case of minors and incompetents,
the reason for attributing to them the domicil of their parent or guardian has
been, of course, that they have been regarded as incapable of forming their
own domiciliary intention. Naturally this latter proposition remains relevant
only while the concept of intention as an essential element of a domicil of
choice is relevant, and this is removed by the other sections of the Draft
Family Code already discussed.25
It was considered by the drafters of the Code that there was nothing in
minority or in incompetency which necessarily precluded the individual con-
cerned from acquiring a “centre of life” not that of his parent or guardian.
While, however, minors or incompetents have relatively few concerns of their
own, it seems reasonable to presume that their domicil is identical with that
of the adults in charge of them unless the contrary is proved. 26
A provision of this nature enables the courts to deal intelligently with
questions relating to married minors, which under the common law cause
difficulty. In a situation where a child is living on a permanent basis with
some person who is neither its parents nor a guardian, and whose parents
are domiciled in another country, it is undoubtedly appropriate that the law
of the country where the child has in fact the “centre of his life” should be
applied. 27 The section, of course, benefits most those minors who have attained
sufficient discretion to exercise a certain degree of freedom of choice in the
matter of where their lives should be centred: in the case of young children,
however, it is no doubt wise to provide a presumption that they retain their
domicil of dependence unless the contrary is proved.
It should again be emphasized that the principal value of the sections of the
Israeli Draft Family Code dealing with domicil is in the fact that they may
be regarded, to a certain extent, as a synthesis of the best of the concepts
applied in this matter by a wide variety of Western countries. The language
2 4 1t should at this stage be pointed out that no distinction is drawn in the Draft
Family Code between men and women, or between single, married, or divorced women.
“The equality of rights and the independence of the wife call for the elimination of…
automatic dependence on her husband. Even ‘legal certainty’ does not justify the im-
position on her of her husband’s domicil by force of law.”: Draft Code, Comment, p.
28. For further discussion on this topic, see Post, p. … It is of interest to note the
view taken by the drafters of the Code on marriage generally: it is based on the
equality of husband and wife and their joint effort to “make the household thrive”:
see Code, .48-57, and Comments thereon (pp. 55-69).
25.28, 30, 31. See ante, p. 44
2GComment on .29, Draft Family Code, p. 29.
27That in such a case the domicil of the child should change with each change of
domicil of its parents, which is the present position, is of course absurd.
McGILL LATW JOURNAL
[Vol. 4
of the sections is simple, direct, and brief :28 so simple, direct, and brief, in fact,
that it will probably allow for a considerable degree of judicial latitude.
Whether this will not result in the creation of a set of rules which may
differ in their effects from those intended by the drafters of the Code remains
to be seen, and whether this is an advantage or a disadvantage is a matter of
opinion. Brevity
law,
and it may be wondered whether it was entirely desirable for the English
Standing Committee on Private International Law, in its Draft Code on
Domicil referred to earlier,29 to have followed an apparently growing tendency
in Commonwealth legislative drafting by attempting to provide for every con-
ceivable type of situation.
is not, however, necessarily a drawback
in codified
II. JURISDICTION
IN DIVORCE AND NULLITY SUITS.
It has been necessary to consider the question of domicil at some length
on account of its importance as a jurisdictional basis in divorce.
The Royal Commission’s Draft Code avoids a change in the substantive
law of domicil by changing the jurisdictional basis: hence, to escape from,
in particular, the difficulties which arise due to the dependence of the wife’s
domicil on that of her husband,30 the Commission’s Code provides that the
Court shall have jurisdiction to entertain divorce proceedings on the bases
of (a) the petitioner’s domicil in England at the commencement of the pro-
ceedings, 1 (b)
the fact of the petitioner’s presence3 2 in England at the
commencement of th& proceedings, where the last residence of the parties was
England; and (c) the residence of both parties in England at the commence-
2SThe sections occupy a total of 7 lines in the writer’s mimeographed copy of the
Draft Family Code. Contrast the Draft Code on Domicil prepared by the English
Standing Committee on Private International Law and contained in its First Report
(Cmd. 9068), which contains the Committee’s view of what it considered
(1954)
“the law should be” (Report, para. 11)
in 5 Articles with 12 sections, occupying alto-
gether approximately 90 lines of print.
29Supra, note 28. Attention should be drawn to the valuable analysis and evaluation
of the Draft Code on Domicil by Professor Graveson in (1954)
70 L.Q.R. 492. The
learned writer there points out that “essentially, the Code in its present form is
incomplete. It would be most misleading for it to be regarded as a complete statement
of all the rules (or even of all the existing ones) affecting this topic in our private
international law. … The Committee’s excellent proposals for reform of this part of
the English Conflict of Laws are so easily amenable to improvement that it is worth a
little patience- on our part to avoid the need for piecemeal legislation.”: ibid., 513.
Articles 1, 3, 4 and 5 of the Draft Code on Domicil are reproduced in their entirety
in the course of the above article, and Article 2 is reproduced in the same author’s
Conflict of Laws (3rd ed., 1955) at pp. 86 and 90.
3ORoyal Commission’s Report, para. 796.
31Royal Commission’s Draft Code, section l(a).
32Ibid., section l(b). Nothing here is said about any residence requirement on the
petitioner’s part at the commencement of the proceedings.
No. 1]
PRIV. INTER. LAW OF DIVORCE
ment of the proceedings.m The Court may not, however, grant a divorce on
law of the parties recognizes as
the latter two bases unless the personal
sufficient ground for divorce or nullity a ground substantially similar to that
on which a divorce is sought in England, or the personal law of the parties
would in the circumstances of the case permit the petitioner to obtain a divorce
on some other ground. 34
These proposals, however theoretically desirable they may seem, never-
theless raise considerable practical difficulties, as does the further provision
of the Commission’s Code defining the “personal law” of the parties. 35 These
difficulties have already been discussed in detail elsewhere.- 6 it is sufficient
to say here that, firstly, it is a little difficult to see what adequate justification
there can be for providing a divorce forum on a simple residence basis to
“assist those persons who have to live in England or Scotland for some time
but have no intention of becoming domiciled therein” -7 and secondly, in its
desire to foster reciprocity with other countries in regard to divorce matters,
the Commission has lured the question of divorce jurisdiction into the dismal
swamp “of partial renvoi, filled with quaking quagmires 8 in which the law
may well founder without the attainment of the reciprocity which the Coin-
,mission was anxious to encourage. If complete reciprocity was desired, the
so-called total renvoi, or “foreign court”, theory, considerably less on the
33Ibid., section I(c).
34Ibid., section 1, proviso.
35Ibid., section 9, which reads: “(1) For the purposes of this part of the Code, the
personal law of a party shall be: (a) the domestic law of the country in which that
party is domiciled, if, under the rules of private international law of that country,
questions of personal status are governed by the law of the country in which the
person is domiciled; failing which (b) the domestic law of the country of which that
party is a national, if, under the rules of private international law of that country,
questions of personal status are governed by the law of the country of which a person
the domestic law of the country in which that party
is a national; failing which (c)
above to
is domiciled.
look to the law of a party’s nationality and he has more than one nationality, he shall
be taken to be a national of that country in which he is also domiciled, or, failing
that, a national of that country of which he last became a national.”
(2) Where the Court is required under subsection (1) (b)
3 6By Mr. J. W. Davies and the present writer in (1957) 6 Am. Journ. Comp.
L., ?IF.. “2( f.
37Report, para. 811. The Committee was also of the view that the strict require-
ments of domicil as a jurisdictional basis should be relaxed in order to bring English
law into line with that of other countries.
3SBy section 9 in particular: See supra, note 35. This felicitous and expressive
phrase is borrowed from Professor William L. Prosser, Selected Topics on the Law
of Torts (Michigan, 1953), p. 89. Professor Prosser’s words are well worth preserv-
ing in full: “The realm of the conflict of laws is a dismal swamp, filled with quaking
inhabited by learned but eccentric professors who theorize about
quagmires, and
mysterious matters in a strange and incomprehensible jargon. The ordinary court, or
lawyer, is quite lost when engulfed and entangled in it”
McGILL LAW JOURNAL
[Vol. 4
nightmare fringe of the conflict of laws,3 9 would, it is suggested, have been a
far more satisfactory and realistic device to choose. 40
The sections of the Israeli Draft Family Code dealing with the jurisdiction
of Israeli courts in matters of personal status41 do not deal directly with juris-
diction in divorce and nullity suits. Any such proceedings which originate in
Israel are for the time being dealt with by the religious courts, and it is
hardly appropriate here to consider the jurisdictional requirements
in such
circumstances. It is, however, helpful to consider the provisions of .183,
which confers on Israeli secular courts
jurisdiction to declare a person to be of age, to declare a person incompetent, to
establish paternity, to issue an adoption order or to rendef any other decision in-
volving the determination or change of the personal status of any person (save
matters of marriage and divorce) where that person’s domicil is in Israel.
Assuming that this section supplies a jurisdictional basis for divorce suits,
which, of course, it does not, it is seen that the difficulties inherent in the
corresponding sections of the Royal Commission’s Draft Code are largely
avoided by the abandonment of the concept of the wife’s “derivative” domicil:
“The equality of rights and the independence of the wife call for the elimin-
ation of [the] automatic dependence [for her domicil] on her husband. Even
‘legal certainty’ does not justify the imposition on her of her husband’s
domicil by force of law. .
. . Doubtless, as a matter of fact, the husband’s
domicil will be an important element in the determination of a married woman’s
domicil, just as her domicil goes a long way to prove the husband’s domicil,
but there is no reason for a fixed rule providing an automatic answer. ‘ 42
No doubt, in these times, it is wise to allow for the fact that the centre of a
wife’s life may not necessarily be her husband, but, on the legal aspect, there
is an equally strong view the other way, succinctly expressed by Professor
Graveson :43
In retaining the basic principle of the unity of domicil of husband and wife the
Committee have shown a wisdom and experience not to be blinded by superficially
attractive arguments on social justice and sex equality, whatever that may mean.
For this principle is but one aspect of the broader concept of the bond of legal
unity of the whole family in matters of personal law. The basis of the concept,
as of the principle of unity, is simple and normal fact. But if law so rationalizes
30But see the judgment of Wynn-Parry, J., in In re Duke of Wellington [1947]
Ch. 506, 515.
40And see also section 2 of the Draft Code, which would provide the court with
jurisdiction “if the petitioner is a citizen of the United Kingdom and Colonies and is
domiciled in a country, the law of which requires questions of personal status to be
determined by the law of the country of which the petitioner is a national, and does
not permit divorce to be granted on the basis of the petitioner’s domicil or residence.”
It is difficult to see any real necessity for this provision; and see further
(1957)
6 Am. Journ. Comp. L., at p. 223..
41.183-185.
42Draft Family Code, Comment, p. 28.
43Reform of the Law of Domicile, (1954)
70 L.Q.R. 492, 504.
No. 1]
PRIV. INTER. LAW OF DIVORCE
the major fact of family life, it should no less rationalize in exceptions to the
principle the fact that husband and wife often do not live together. This the Com-
mittee has done to a limited extent in allowing a wife judicially separated to
acquire an independent domicil, as well as in respect of infants.44
The main disadvantage of allowing a complete independence of a wife’s
domicil from that of her husband is the possibility of a resulting “limping
marriage.” It should be pointed out, however, that the relevant sections of
the Israeli Draft Family Code are not concerned with jurisdiction in Israeli
divorce proceedings, and indeed under present Jewish law and practice the
problem of a “limping” Jewish marriage could hardly arise. In any event,
the difference between the English and Israeli views on the topic of unity of
domicil is not as great as it might seem. The English view as expressed by
is, in substance, that there should be unity of domicil between
Graveson
husband and wife, subject to exceptions where there is in fact no unity in
actual family relationship. The view of the drafters of the Israeli Code is,
on the other hand, that (in effect) unless there is shown to be actual family
unity there is no necessary unity of domicil. One of the mose obvious
difficulties involved in adopting too wide a view of the “equality” of husband
and wife as far as domicil is concerned is that of uncertainty, which the
drafters of the Israeli Code did not regard as serious, 45 and indeed the problem,
in relation to present Israeli *law, is not serious in Israel. As far as England
is concerned, however, certainty appears to be a much more real value than
the avoidance of “imposition on [a wife] of her husband’s domicil by force
of law,” 46 an evil which does not appear t6 many lawyers who have to deal
with this type of case particularly outrageous. Possibly a mild palliative to
these difficulties might be the employment of a rebuttable presumption of unity
of domicil during the subsistence of the marriage in question. The advantages
are obvious, and include a higher degree of certainty, convenience, and social
justice, for whatever the latter may be worth in this particular context. The
possibility of a resulting “limping marriage” is, however, not removed.
The peculiarly original concept of domicil adopted by the drafters of the
Israeli Code must, however, be borne in mind,4 7 and it is seen that the choice of
this type of domicil as the basis of divorce jurisdiction (which is not at
involves its own problems. Under the Code as it
present the case in Israel)
stands Israeli courts have jurisdiction to deal with matters of personal status
even if the person whose status is in question has been “domiciled” in Israel
for only a very brief period: indeed, no period of “domicil” is specified. 48 No
44Report of Committee on Domicil, Appendix A, Article 4(4).
45See ante, p. 5a.
46Draft Family Code, Comment, p. 28.
47See supra, pp.4.4.., ff.
48See Draft Code, Comment, p. 206: ‘Under the Bill, domicil is required without
specification of -any period whatever. The Courts will be competent to deal with the
case of an immigrant even if the action is filled only one day after his arrival.”
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doubt the courts would exercise caution, in the case of a very brief period of
residence, in arriving at a finding of domicil, but as far as divorce is concerned
it is doubtful whether provisions such as these are adequate to guarantee
against the parties’ perjury. Florida and Nevada require residence for a few
weeks only to found jurisdiction in divorce suits, and such requirements have
come under severe attack both in the United States and elsewhere.
Although the drafters of the Israeli Code are insistent that “the Court
should not have jurisdiction over [the matters regulated by .183]49 unless
the person whose status is being determined has a lasting and close link with
this country, i.e., the link of domicil”, 50 it is extremely doubtful whether the
“centre of life” concept of Israeli domicil alone goes nearly far enough to
provide a link which is either close or lasting in divorce cases. This difficulty
would of course be overcome by provision for a specified period of “domicil”
before the commencement of a divorce suit. The present requirement in most
British Commonwealth jurisdictions of two or three years’ domicil (in the
English sense) or, as in the case in England where a deserted wife is the
petitioner, three years’ residence, can hardly be said to impose undue hardship
on prospective petitioners, especially when those petitioners are entitled, on
such a basis, to be considerably more confident that their divorce decrees have
a reasonably good chance of being recognized overseas.
It should again be emphasized that the provisions of the Israeli Draft
Family Code considered in connection with this particular topic are not in-
tended to cover jurisdiction in divorce suits, and if and when it is ever necessary
to make such provision no doubt considerations such as the above will be
taken into account.
The recommendations of the Royal Commission on the question of jurisdic-
tion in cases where the wife is the petitioner are embodied in section 6(1) of
the Draft Code, where it is provided that for the purpose of establishing
jurisdiction in divorce and nullity5l suits a wife who is living separate and
apart from her husband is entitled to claim a separate English domicil not-
withstanding that her husband is not domiciled in England at the commence-
ment of the proceedings, provided that, in the circumstances, had she been a
single woman, the court would regard her as having an English domicil.
Section 6(2) provides that where a wife who is claiming a separate English
domicil was domiciled in England immediately before her marriage or im-
mediately before her separation from her husband, and is resident in England
at the commencement of the proceedings, she is deemed to have acquired an
English domicil unless there is evidence to the contrary. There is, it will be
noted, no substantial difference between these provisions and the provisions of
49See supra, p. 50..
5ODraft Code, Comment, p. 206.
SlAs to the Commission’s recommendations
p….
in regard
to nullity suits, see post,
No. 1]
PRIV. INTER. LAW OF DIVORCE
existing Australian and New Zealand legislation, with the important exception
that no period of residence is prescribed, and there seems no good reason for
leaving it out, especially in regard to cases which might possibly arise under
section 6(1). The evils of migratory divorces have been spoken of too often
to bear repetition here, and it must be borne in mind that even though the
English test of domicil is stringent, the fact that, in theory at least, no period
of residence is required under the Draft Code may at least possibly create a
situation similar to that existing in regard to Florida and Nevada divorce
decrees.62
The provisions of the Royal Commission’s Draft Code relating to jurisdic-
tion in nullity suits have already been fully considered elsewhere,5 and all
that needs to be said here is that, in view of the fact that a declaration of
nulity of a void marriage is in no sense a declaration of a change of status,
exception can hardly be taken to the liberal rules recommended by the Com-
mission in this respect, or to their suggested choice of law rules as a limiting
factor on the exercise of jurisdiction.54 As to voidable marriages, the provisions
recommended by the Commission 55 are substantially similar to those recom-
mended by them in regard to divorce jurisdiction, and what has already been
said concerning the latter56 applies equally here.57
52And see ante. 1). 5Z
53(1957) 6 Am. Journ. Comp. L., at p. 223 to 229.
54See section 4(2) and (3) of the Commission’s Draft Code. “(2) If the marriage
is alleged to be void on the ground of lack of formalities, that issue shall be determined
in accordance with the law of the country in which the marriage ceremony took
place. (3) If the marriage is alleged to be void on a ground other than that of lack
of formalities, that issue shall be determined in accordance with the personal law or
laws of the parties at the time of the marriage (so that the marriage shall be de-
clared null and void if it is invalid by the personal law of one or other or both of the
parties) ; Provided that a marriage which was celebrated elsewhere than in England
or Scotland shall not be declared void if it is valid according to the law of the
country in which the parties intended at the time of the marriage to make their
intention has in fact been carried out.” But as to
matrimonial home and such
“personal law” see ante, p. … 4?
55In section 5 of the Draft Code. The court has jurisdiction if the petitioner is in
England at the commencement of the proceedings, and the place where the parties
last resided together was England, or where the parties to the marriage are both
resident in England at the commencement of the proceedings. A proviso states that
the court shall not grant a decree of nullity unless the personal law or laws of one
or other or both of the parties at the time of the marriage recognized as sufficient
ground for nullity of marriage or divorce a ground substantially similar to that on
which annulment is sought in England.
56See ante. p.49..
57But section 5 is less revolutionary in the law of nullity than is section- 1 in the
law of divorce, as the residence of both parties is already a basis of jurisdiction for the
annulment of a voidable marriage: Ramsay-Fairfax v. Ramsay-Fairfax [19561 P. 115
(C.A.). Also, the foreign law to be applied is the law at the-time of the marriage,
and not, as in divorce, at the time of the commencement of proceedings. Nor is the
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III. RECOGNITION OF FOREIGN MARRIAGES
This topic is really a part of the main topic of nullity of marriage, but it is
sufficiently important to be dealt with separately.
Up to the present, English law has regarded foreign marriages as valid if,
firstly, the form prescribed by the lex loci celebrationis has been observed; and
secondly, the parties, by their personal law, had capacity to marry,”s or, pos-
sibly, the parties bad capacity to marry by the law of the husband’s domicil,
especially if that domicil happened to be English. 59
The Royal Commission’s Draft Code retains the rule that where a foreign
marriage is alleged to be void on the ground of lack of formalities, that issue
shall be determined by the lex loci celebrationis,60 but also broadens the rule
as stated above in relation to grounds other than lack of formalities, making it
clear that a foreign marriage is void in England if either party lacked capacity
according to his or her personal law. A more startling innovation, however,
is the proviso that a marriage celebrated elsewhere than in England or Scot-
land “shall not be declared void if it is valid according to the law of the
country in which the parties intended at the time of the marriage to make their
matrimonial home and such intention has in fact been carried out.”61
It is unnecessary here to discuss at length the doctrine of the “proposed
matrimonial home”, which, in the present state of the law, can hardly be taken
seriously, supported as it is only by inconclusive dicta in three cases. 2 It is,
however, necessary to point out that the doctrine not only appears to offer to
parties otherwise incapacitated the right to confer capacity on themselves by
the choice of an appropriate matrimonial home, but also appears to invoke the
proposition that the rule will require a prolonged investigation into the question
court required to consider whether the personal law or laws of the parties “would,
in the circumstances of the case, permit the petitioner to obtain a [decree] on some
other ground” (as in section 1), which considerably simplifies the proof of foreign law.
5 8 See, e.g.. Brook v. Brook (1861), 9 H.L.C. 193; Sottontayor v. de Barros (1)
(1877), 3 P.D. 1 (C.A.)
59 The decisions in Sottoinayor v. de Baeros (2)
(1879), 5 P.D. 94 and Pugh v.
Pugh [1951] P. 482 might appear to lead to this conclusion. However, in In re Paine
[1940] Ch. 46, Bennett, J., relying on Mette v. Mette (1859), 1 Sw. & Tr. 416, held
orally that a marriage between a domiciled Englishwoman and a domiciled German
was void on the ground that the wife lacked capacity at English law. But Aette v.
Mette was concerned with the incapacity of the husband at English law, and In re
Paine appears to be the only decision contrary to the view expressed above, and,
indeed, the only case in which the wife’s incapacity to marry (as distinguished from
the husband’s) at English law seems to have been considered in this regard.
6 oSection 4(2).
OlSection 4(3).
62De Reneville v. De Reneville [1948] P. 100, per Lord Greene, M.R. at 114 and
Bucknill, L.J. at 122; Kenward v. Kenward [1951] P. 124, 144, per Denning, L.J.
There are also certain very insubstantial dicta of Lord Campbell in Brook v. Brook
(1861), 9 H.L.C. 193, 207.
Nro. 1]
PRIV. INTER. LAW OF DIVORCE
of the situs of the matrimonial home, and especially, the intention of the parties
at the time of the marriage. As to the former, possibly some evidence of
habitual residence will be required. The latter question is, however, one of
some difficulty. It would seem essential that concrete evidence of the parties’
intention be given if the rule is not to become merely that the marriage is to be
upheld if it is valid by the law of the country where the parties have their
home at the time of the proceedings; but in the majority of cases likely to arise
it is difficult to see what evidence could be produced.
Theoretically, of course, it is possibly desirable that the law of the country
having the closest connection with the parties’ married life should be taken
into account. This is Ao doubt a realistic view, since the fact that nullity
proceedings have been commenced does not alter the fact that the parties have
in fact gone through a ceremony of marriage and have in fact been living
together as husband and wife, possibly for a considerable period. What the
“matrimonial home” doctrine does not take into account, however, is that the
personal law of the parties is surely the only law which has any interest in
saying whether the parties can or cannot marry. No amount of insistence on
the theoretical or practical advantages of the “matrimonial home” doctrine
can avoid the fact that it enables (and possibly even encourages)
the evasion
of contractual disabilities. It is no justification of the evasion of such a dis-
ability to say that the parties are now in fact married, and the jurisdiction in
which they intended to set up their home when they evaded their respective
contractual disabilities does not recognize those disabilities as a bar to a valid
marriage. It is certainly convenient to recognize a fait accompli, but this does
not make the parties, before the marriage, any more capable of marrying.
The “matrimonial home” doctrine appears also in the Israeli Draft Family
Code,63 but the other provisions of the Code relating to form and capacity
should be considered first. The Code provides that 4 the form and validity of a
marriage is to be governed by the law of the domicil of the parties at the time
of its solemnization; but the marriage of a person domiciled in a foreign
country, even though not valid under the law of that country, is valid, firstly,
if” it is valid under Israeli law, and secondly,
if, as regards form, it was
solemnized in accordance with the law of the place of solemnization.
It is seen, therefore, that the effect of this provision is:
(1) As regards parties domiciled in Israel”5 at the time of the mar-
riage, the marriage will be regarded as valid in Israel if it is valid as
to substance under Israeli law, and if it was celebrated in Israeli form.
(2) As regards parties not domiciled in Israel6 5 at the time of the
marriage, the marriage will be regarded as valid in Israel if:
63.194, considered post, p. 5&..
64.190.
65As to the effect of the “matrimonial domicil” doctrine incorporated into the Code
by .194, see post. p.5..
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[Vol. 4
it is valid as to substance under Isibaeli law, and was celebrated
(a)
in Israeli form; or
it is valid as to substance under the lex domiciii of the parties
(b)
at the time of the marriage, and is also valid as to form under that
law; or
(c)
and valid as to form under the lex loci celebrationis.
it is valid as to substance by the lex dornicilii of the parties,
One of the considerable advantages of a provision such as this is that the
necessity to distinguish between form and substance in marriage is largely
done away with, and in fact arises only in a case where the marriage is valid
as to substance by the law of the parties’ domicil, but is not valid as to form
either under that law or Israeli law, where the parties are at the time of the
marriage not domiciled in Israel. The distinction between form and substance
has always been a problem of some difficulty in England, and, understandably,
one of rather greater difficulty in Jewish law.66 However, the danger of
“limping marriages” arising from a disregard of the requirements of the
foreign form cannot be dismissed lightly. The drafters of the Code give as an
example the case of a Jewish citizen and resident of France, who has married
there according to Jewish law (and only according to Jewish law) who
cannot allege in Israel, under the provisions of the Code, that the marriage is
invalid.6 7 It is not suggested that a rule leading to such results is not morally
desirable both in and out of the Israeli context, but a situation in which a man
is regarded in France as unmarried but regarded in Israel as married is one
which private international law should, it is suggested, be aimed at avoiding.
The fact that there are many cases in this particular field of private interna-
tional law in which conflicts rules do not avoid such situations does not mean
that this result is desirable either from the point of view of comity or from
the point of view of certainty.
What would appear to be a further disadvantage in this type of provision
is that it requires Israeli domiciliaries, wherever they marry, to marry accord-
ing to Israeli form.6 8 In Israel there is no form of civil marriage available for
66The interesting decision of the Israeli Supreme Court in Hershenhorn v. The
Attorney-General (Criminal Appeal 54/54) 8 Piskei Din’ 1300 provides a good il-
lustration.
67Draft Family Code, Comment, p. 217.
68″Residents [sic] of this country cannot narry otherwise than in the form recognized
by Israeli law, and that is the religious form. Celebration of the marriage abroad does
not relieve from compliance with this form; but where this form has been complied
with, the marriage will be recognized in Israel even though it was not solemnized in
accordance with the law of the place of “ts celebration :” ibid. This does not, of course,
mean that the only form of marriage recognized in Israel is the Jewish form, but
the position is that a marriage must be celebrated by the religious functionaries of
the various communities, and section 182 of the Criminal Code Ordinance, as amended
by the Marriage Age Law, 5710-1950, prohibits the solemnization of a marriage
otherwise than in accordance with the law applicable to the parties. Oddly enough,
No. 1]
PRIV. INTER. LAW OF DIVORCE
persons who do not belong to any particular religious community, 69 and while
such a provision is entirely appropriate as regards the Jewish community,
one effect of it seems to be that persons domiciled in Israel who have no
particular religious convictions, or do not belong to any particular religious
community are obliged, if they wish to marry outside Israel, to marry accord-
ing to some religious form which is in the closest accordance with their beliefs,
if any. Rule 4(b) of the Personal Status (Consular Powers) Regulations
1922, which enables the Consuls of foreign countries in Israel to perform
marriage ceremonies is hardly, of course, of any help. The difficulties of such
a situation need not be stressed. It is no doubt convenient to have a provision
the effect of which is that the marriage of a person domiciled .in Israel is
valid in Israel if, had it been celebrated in Israel in the form in which it was
celebrated elsewhere, it would have been a valid marriage, but what it is in-
tended to indicate here is that it may be difficult, in some cases, for persons
who wish to marry outside Israel, yet are domiciled there, to find a form which
will meet Israel’s rather stringent requirements. 69a
It will be recalled that under the proviso to section 4(3) of the Royal Com-
mission’s Draft Code, the validity of a foreign marriage could, as far as
substance is concerned, but need not necessarily, turn on the question whether
there is no provision in the Draft Family Code expressly covering this topic, although
what has been said above is possibly reinforced by .37 of the Code, which provides
that no person is authorized to celebrate a marriage unless a notice to that effect is
published in the Official Gazette.
69See note 68 above. There is, however, provision for the celebration of marriages
by the Consuls ‘of foreign countries: Personal Status (Consular Powers) Regulations
1922, Rule 4(b).
69 Indeed, even in Israel itself, under the existing law it is almost impossible for parties
of different religious faiths to marry. The difficulty is particularly acute in cases where
one of the parties is Jewish, and stems from a desire for strict adherence to religious
law. It is thought that any relaxation of the present law, such as the provision of a form
of civil marriage to meet cases either where a religious marriage is impossible, or is not
desired by the parties, would lead to even greater difficulties within the ranks of the
Jewish community: under Jewish religious law, the issue of a marriage “unsanctified by
God”, whether or not both parties are Jewish, is not legitimately Jewish and cannot
marry a true Jew. Such a result is certainly unfortunate, and the political entity re-
sponsible for emphasizing it is the United Religious Front, which is strongly opposed to
any form of civil marriage or any relaxation of the religious law. It is a little difficult
to see what vital interest the United Religious Front could have in the marriages ol
non-Jews, however, and it is surprising that the strictness of Israeli law in this particular
field has not been relaxed to meet at least the hardship imposed on non-Jewish persons
domiciled in Israel. There are, however, other political entities in Israel which consider
that everyone, whether Jewish or not, should have a free choice between a civil or a
religious marriage, and that it is essentially immoral to insist that an agnostic or non-
conformist take marriage vows “according to the laws of God and Moses” when he does
not believe in those laws. The question is really a political one, and no doubt in the
course of time it will be possible to arrive at a solution which will overcome the present
unsatisfactory position.
158
McGILL LAW JOURNAL
[Vol. 4
it was valid according to the law of the country where the parties at the time
of the marriage intended to make their matrimonial home, and had carried
out their intention; however, if the marriage in question was valid in form
under the lex loci celebrationis, and valid as to substance by the law of the
domicil of both parties, the question of their intended matrimonial home would
not arise. 70
On the other hand, in view of the manner in which the “intended matri-
is brought into the Israeli Draft Family Code by
monial home” doctrine
.194, the difficulties in regard to the doctrine mentioned earlier 7′ are likely
to arise in a far greater proportion of cases. This, in turn, arises from the
rejection, in the Code, of the notion of the wife’s “derivative” domicil.72
It is provided by .194 that, where spouses have different domiciles, and
where the time of the celebration of the marriage is controlling, the law of the
place “which at that time was the intended joint domicil of the spouses” shall
apply in all matters determined by the law of the domicil.7
In a large number of cases involving foreign marriages, it is not unlikely
that the husband and wife will have different domiciles at the time of the
marriage. In all such cases it may appear to some to be rather alarming that
the validity of such a marriage in Israel will depend, not on whether it is
valid by the law of the parties’ respective domiciles, but on whether it is
valid by the law of their intended joint domicil. It is not difficult to conceive
of instances where it may happen that there is no impediment of any sort
to the marriage by the law of either party’s domicil, yet the marriage may be
regarded as void if the country where they intend to establish the centre of
their life, and is consequently void in Israel.
An example which could readily become reality would be that of a husband
and wife, not Jews, to whose marriage there was no impediment either in
substance or in form by the laws of their different domiciles, whose intention
it was to immigrate to Israel and set up their home there after their mar-
riage, yet who had not gone through a ceremony of marriage recognized by
Israeli law. In such circumstances, it is clear that the marriage would not be
recognized in Israel for the reason that under .194 the parties’ domicil at
the relevant time would be Israel, and the marriage was not one coming within
the terms of .190. It is hard to find any justification for this type of con-
sequence: indeed, it is not shown in the brief Comment to .194 that such a
consequence was envisaged by the drafters of the Code.74
It has already been pointed out7 5 that the use of the “intended matrimonial
home” doctrine is, under the Royal Commission’s Draft Code, more or less
70The provisions of section 4 of the Royal Commission’s Draft Code are stated
ante.P. 54
72Draft Family Code, Comment, p. 28. And see discussion, ante. p. 50.
73.194(1). The provisions of .194(2) are not relevant to this discussion.
74See Draft Family Code, Comment, p. 222.
75Ante. P.58..
No. 1]
PRIV. INTER. LAW OF DIVORCE
a device of last resort, so to speak, when all other tests of the substantive
validity of the marriage have failed. It is suggested that in view of the evident-
iary and other difficulties of the doctrine, already discussed, if it must be
employed at all it is infinitely preferable that it be employed in this limited
way, rather than indiscriminately and automatically in all cases where parties
of different domiciles marry. One of the advantages of the use of the doctrine
under the Royal Commission’s Code is that it may operate to sustain the
validity of a foreign marriage whether or not the parties had different domiciles
at the time of the marriage. The Israeli Draft Code, in restricting and at the
same time (in effect) broadening the application of the doctrine to cases
where the parties have different domiciles, loses this very real advantage. The
truth of the matter is, probably, that the drafters of the Israeli Code intended
.194 only as machinery for ascertaining domicil in itself, and did not consider
the possibility of going beyond this aim to a wider view of the section’s effects
in the field of recognition of the validity of foreign marriages.
IV.
RECOGNITION OF FOREIGN DIVORCES.
This topic is one in which the views expressed depend largely on the extent
to which it is thought desirable that divorces obtained by a wife as petitioner on
the basis of her separate residence or domicil should be recognized. At common
law a foreign divorce could not be recognized unless the marriage had been
dissolved by the courts of the husband’s domicil, 76 or, if dissolved by the courts
of some other country, unless the courts of the country of the husband’s domicil
would recognize the marriage as having been effectively dissolved.77 A few years
ago this rule was extended, enabling the courts to recognize foreign divorces
granted on the basis of the wife’s residence or separate domicil, if the foreign
court had assumed jurisdiction on a basis substantially similar to that on which
the English (and therefore also, presumably, the Commonwealth) courts assume
jurisdiction in such an instance.78 Such a basis is apparently continuous residence
at least for two years or upward.7 9
Under this, rule it is, of course, possible for a husband domiciled in, e.g.,
England, to obtain a Nevada divorce on the basis of six weeks’ residence, re-
sulting in his “domicil” there, and the decree would presumably be recognized
in England.80 A similar result would follow in the case of a wife, whose husband
7 6Le Mesurier v. Le Mesurier [1895] A.C. 517.
77Arinitage v. The Attorney-General [1906] P. 135.
78Travers v. Holley [1953] P. 246 (C.A.).
79Dunne v. Saban [1955] P. 178.
SOBut it seems that the test of his “domicil”
in Nevada is the test of domicil at
English law: see, on this point Bater v. Bater [1906] P. 209; Crowe v. Crowe [1937].
2 All E.R. 723; Walker v. Walker [1950]. 2 W.W.R. 411,
[1950], 4 D.L.R. 253
(British Columbia Court of Appeal); and see also Bonaparte v. Bonaparte (orse.
[1892] P. 402; Drake (orse, MacLaren) v. Drake [1929], 2 W.W.R. 87,
Megone)
[1929], 3 D.L.R. 159.
McGILL LAW JOURNAL
[Vol. 4
is domiciled in a country where Nevada decrees obtained on the basis of a wife’s
separate domicil are recognized.
It is presumptuous, of course, to look on all Nevada divorces as necessarily
bad and undesirable: it would seem, however, that when they are granted to
persons whose sole aim in residing in Nevada at all is to get a divorce without
what they regard as any delay apart from that resulting from Nevada’s six
weeks residence requirement, the country in which such persons are in reality
domiciled is entitled to say whether or not it will regard such a decree as validly
dissolving a family unit with whose welfare it, and it alone, is in reality con-
cerned. This is in fact the position which up to now English and Commonwealth
courts appear to have adopted,8′ by insisting that the husband 2 must have been
domiciled in the jurisdiction granting the decree in the English sense.83
This, it would seem, is an adequate safeguard against the recognition of
“tourist” divorces in English and Commonwealth courts. It is true that in the
Armitage v. The Attorney-General8 4 type of situation the English court is, in
effect, obliged to recognize this type of divorce, but there can hardly be any
complaint here, as the divorce is in fact being recognized because it would be
recognized by the courts of the husband’s domicil.
Section 7 of the Royal Commission’s Draft Code not only embodies the
existing law as stated above, but on one interpretation broadens it almost beyond
recognition. Under its provisions the court must
…
recognize as valid a divorce, obtained by judicial process or otherwise,
(a) which has been granted in accordance with the law of the country in which
one spouse was, or both spouses were, domiciled at the time of the pro-
ceedings, or which would be given recognition by the law of that country; or
(b) which has been granted in accordance with the law of the country of which
one spouse was a national, or both spouses were nationals, at the time of
the proceedings, or which would be given recognition by the law of that
country; or
(c) which has been granted in circumstances substantially similar to those in
which the court in England exercises divorce jurisdiction in respect of
persons who are not domiciled in England .
.
.
There is, on the face of it, nothing unduly novel about this provision. The
basis for recognition under the first part of paragraph (a) of the section is
still domicil, and on a first reading this word might be taken to be used in the
8 t See the cases cited in note 80, above, from which it also appears that the motive
in acquiring the domicil in the jurisdiction in which the decree is granted is immaterial.
The fact that the domicil has been acquired in the English sense appears to be the
only relevant consideration.
82What is said in this sentence does not, of course, apply to the type of situation
considered in Armitage v. The Attorney-General [1906] P. 135.
a3Thus, in MacDonald v. Nash [1929], 2 W.W.R. 84, [1929], 4 D.L.R. 1051, and
in Drake (orse. MacLalren) v. MacLaren [1929], 2 W.W.R. 87, [1929], 3 D.L.R.
159, it was held that residence in Reno sufficient to found jurisdiction in the Nevada
courts, but for the sole purpose of obtaining a Nevada divorce, was insufficient to
give the Nevada court jurisdiction (in the Canadian sense) to grant the decrees.
84[1906] P. 135.
No. 11
PRIV. INTER. LAW OF DIVORCE
English sense; the second part of the paragraph on its face restates the principle
in the Armitage case, 86 and on this reading of the paragraph no comment is
recognizes, on a first reading, nationality as a juris-
called for. Paragraph (b)
dictional requirement, embodies the existing law in regard to it, and also
applies the Armitage principle. It is hard to find any real objection to this.
Paragraph (c) seemingly restates the rule in Travers v. Holley87 and here,
again, no comment is called for.
On a closer study, however, the section reveals pitfalls and traps for the
unwary which may not have been within the contemplation of the Royal Com-
mission. Firstly, paragraph (a) expressly refrains -from saying that the “one
spouse” who must have been domiciled in the country where the decree was
made must be the husband, and it seems to follow that the Commission must
have intended that divorces based on the wife’s separate domicil should be
recognized. But this is impossible if “domicil” is read in the English sense,
since the English common law rule has always been that a wife cannot, during
the subsistence of the marriage, obtain a domicil apart from that of her hus-
band, and no foreign decree obtained on such a jurisdictional basis will be
recognized in England, unless it falls within the Armitage or Travers v. Holley
rules, which are inapplicable here. It can hardly be asserted that the construc-
is to depend on whether the
tion of the word “domicil” in paragraph (a)
husband or the wife was the petitioner, and it is suggested that the conclusion
must be drawn that the word is to be construed in the sense in which it was used
by the foreign court granting the decree. It would appear to follow that in
many, if not all, cases arising under paragraph (a)
the court could not go
behind the foreign court’s exercise of jurisdiction on the basis of the foreign
court’s notion of domicil, and it therefore further follows that paragraph (a)
alone has dealt a death-blow to any protection whatever that now exists against
the recognition of “tourist” decrees, and in fact throws the door wide open for
their recognition in England. Whether or not this result was intended, its evils
are obvious, and they are dealt with briefly later.88
Secondly, in paragraph (b), although the recognition of decrees based on
the jurisdictional fact of nationality is no doubt a desirable relaxation of the
common law rule, it is to be noted that nothing whatever is said in the para-
graph about nationality as a jurisdictional fact. Apparently it was thought
desirable that foreign decrees should be recognized, no matter on what juris-
dictional basis they were granted, provided the petitioners happened to have
been nationals of the country granting them. This leads to the result that a
wife who is an American national, married to a domiciled Englishman, can at
any time, at the expense of a visit to one of the United States which operates
86[19061 P. 135.
8711953] P. 246.
88Post, p.62. ..
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a “bargain-counter divorce mill for profit”,8 9 and perhaps a little perjury as
to her domicil, obtain a decree recognized in England solely due to the coinci-
dence of her American nationality. It is doubtful whether the most ardent
English reformer would consider such a position desirable, even disregarding
the fact that a view which leads to such a result flies in the face of stated
English policy in such matters.90
Nor must it be overlooked that the enactment of paragraphs (a) and (b)
appear on the interpretation suggested here to constitute an open invitation to
disaffected English husbands and wives to go abroad in search of divorce
decrees which may be obtained without any undue delay on grounds such as
“mental cruelty” (which is a favourite choice in the more popular American
divorce states) or “incompatibility of temperament” with which an inconsider-
ate English legislature does not provide them. This may, of course, be a
desirable result, but it might, be thought that a marriage between parties who
are to all intents and purposes domiciled in England would be one in which
the English, and only the English, courts or legislature have a legitimate
interest.
It is unnecessary to comment on paragraph (c) at any length: this sub-
stantially restates the rule in Travers v. Holley,91 but enlarges it to include
the new English jurisdictional requirements advocated in the earlier sections
of the Draft Code. What has already been said about these sections 2 applies
here also, but it is desirable to add that the evidentiary problems inherent in
those sections are not to any degree lessened by being, so to speak, once
removed.
Section 7 of the Draft Code93 is obviously drafted with a view to encourag-
ing the reciprocity with other countries which the Commission considered
desirable. It is, however, possible to be reciprocal without being indiscriminate,
whether largely indiscriminate recognition of foreign decrees was
intended
or not.
The corresponding provisions of the Israeli Draft Family Code are far from
indiscriminate, and merit the closest scrutiny. It is provided, firstly, that
89This pungent phrase is borrowed from Joseph Dainow, Policy Considerations in
Divorce Jurisdiction and Recognition, 10 Louisiana L. Rev. 54
(1949).
00″ . . . the interest of the community at large [is] to be judged by maintaining a
true balance between respect for the binding sanctity of marriage and the social con-
siderations which make it contrary to public policy to insist on the maintenance of a
union which has utterly broken down”: Blunt v. Blunt [1943] A.C. 517, 525, per
Viscount Simon, L.C.; “The Divorce Court does not exist for the purpose of promot-
ing the dissolution of marriages but for the purpose of discharging the painful duty
of dissolving them when all reasonable hope of reconciliation between
the parties
has come to -an end”: Cohen v. Cohen [1940] A.C. 631, 645, per Lord Romer.
91[1953] P. 246.
9 2 See ante. p.49.
93Section 8, dealing with recognition of foreign decrees of nullity, is in substantially
the same terms and to the same effect.
No. 1]
PRIV. INTER. LAW OF DIVORCE
“divorces shall be governed by the law of the place of the domicil of the
spouses at the time of the divorce, but the divorce of a foreign resident obtained
abroad, even though invalid by the law of domicil, shall be valid if valid accord-
ing to the law of Israel.” 94 “Divorce” is defined as including annulment and
dissolution of marriage and judicial separation.9″
It is seen that in its extraterritorial effects this provision cannot be criticized
on the grounds on which the corresponding provisions of the Royal Commis-
sion’s Draft Code may be attacked. Bearing in mind the concept of domicil
introduced elsewhere in the Draft Family Code,96 it is clear that a foreign
divorce will be recognized under .193 only if it is based on the jurisdictional
fact of the petitioner’s “centre of life”, or if it is valid according to Israeli
law. The protection against recognition of “tourist” decrees is therefore present,
and may indeed be stronger than the existing English rule, as an Israeli court,
in considering whether a petitioner has acquired a “centre of life” in the foreign
jurisdiction will presumably, in most cases, incorporate the petitioner’s motive
in settling within that jurisdiction as an essential ingredient of domiCil. 9T The
problem dealt with in Travers v. Holley9 8 does not of course arise, as there is
no bar under the Israeli Code to a wife acquiring a separate domicil in the
Israeli sense.
An even more important, and it is suggested highly desirable, provision in
regard to this topic is contained in .186, with which .193 must be read:
A foreign judgment concerning marriage or divorce or any other determination
or change of personal status shall be recognized in Israel upon confirmation by an
Israeli Court, in such manner as shall be prescribed by regulations, that the follow-
ing conditions are complied with:
(1)
the court which gave the judgment had jurisdiction to do so under the law
of its country and the judgment is a final decision according to that law;99
the judgment was not obtained in evasion of the jurisdiction of another court
or religious tribunal1 00 and was not given without affording both parties an
opportunity to be heard;
the procedure of obtaining the judgment and its contents are not contrary to
the policy of Israel.
(2)
(3)
On the assumption that the state in which persons have (to use the Israeli
term) the centre of their lives is the only jurisdiction having any real interest
in whether or not marriages between such persons should or should not be
94.193.
95Ibid.
96.28, 30, 31, considered ante.
97The test adopted is, according to the drafters of the Code, objective: see Com-
ment, p. 27, cited in footnote 17.
98[1953] P. 246.
99This subsection must, it is suggested, be read with .193, cited ante. See, however,
post, note 102.
Israel,
1001n
the religious
in, matters of
divorce: see, e.g., in regard to the Jewish community, the provisions of the Rabbinical
Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953; and see also the Palestine
Orders in Council, 1922:1947.
tribunals have exclusive
jurisdiction
McGILL LAW JOURNAL
[Vol. 4
dissolved, it is seen that the provisions of the section contrain much of con-
siderable value. For example, under .186 and 193, read together,10 1 the
evasion of the divorce requirements of such a jurisdiction by means of a quick
visit to another with more relaxed rules is rendered almost impossible. Not
only must the foreign court have had jurisdiction under foreign law, but its
country must have been the centre of the parties’ lives at the relevant time. 10 2
Further, even if that country was in fact at that time the centre of the parties’
lives, the decree will not be recognized if it was obtained by an evasion of
(presumably)
the requirements of the country or the state which could be
said to have a legitimate interest in the regulation of the marriage relation.103
Even if this requirement is satisfactorily disposed of, the decree will still not
be recognized if the manner of obtaining it is contrary to the policy of Israel.10 4
It is seen that these requirements are stringent, yet there should be no
difficulty in meeting them in bona fide cases. What is certain is that require-
ments such as these achieve an infinitely more satisfactory result than the
vague and indiscriminate nature of the requirements
(if they can be called
such) of section 7 of the Royal Commission’s Draft Code.
01See post, note 102.
02This was apparently not the intention of the Code’s drafters, but it is submitted
that this result follows from .193, cited ante, p. … See Comment to .186, Draft
Family Code, pp. 212, 213: “In this country the foreign court was required to have
jurisdiction both under the rules of Israel and of the foreign country . . . The Bill
does not require more than jurisdiction under the law of the foreign country.
“‘The
law of its country’ means
the rules of that country which define
the
jurisdiction of its courts….
” . .. Under the proposed Section, an order of adoption given in Florida will
three
accordingly be recognized
months (as required by Florida law) even though their domicil …was elsewhere.
if the parties were
resident there for
in Israel
“.. .If this is a liberal approach, the necessary safeguard appear in Clause (2);
The Israeli Court will recognize the judgment only if it appears that they merely
‘concocted’ the jurisdiction of the Florida courts and evaded
that of another court
(foreign or Israeli) recognition will be refused.”
It is possible, however, that .186, standing alone, is sufficient without any re-
ference to .193, and achieves a result similar to that which follows if both are read
together. An advantage of excluding .193 from the operation of .186 is that, probably,
reciprocity would be encouraged. A disadvantage of following this course is that it
excludes, technically at least, the legitimate interest Israel may have in the continuance
of a marriage of its domiciliaries.
‘evasion’
‘0See Draft Family Code, Comment, p. 213: “The word
implies fraud,
‘fraude a la Ioi’; this will authorize the Court to disregard a foreign judgment not only
where ‘concoction’ or abuse of the foreign jurisdiction constituted an evasion of the
jurisdiction of an Israeli court or tribunal, but also where the evasion is of the juris-
diction of a third country.”
104By “policy” the drafters of the Code mean “the basic values accepted in Israel”;
Comment, p. 213. The Comment continues. “These values are part of the concept of
public policy (‘ordre public’) which cannot be defined and must receive its meaning
through judicial precedents.”
No.- 1]
PRIV. INTER. LAW OF DIVORCE
If, in the course of this article, the impression has been given that the
writer’s view is that on the whole the Royal Commission’s Draft Code, as
compared with the conflicts sections of the Israeli Draft Code, is of markedly
inferior quality, such an impression should be corrected now. It is quite obvious
that the conflicts sections of the Israeli Code contain provisions which, if
grafted on English law, would involve far more radical change than it is likely
that anyone would want. The principal objections raised here to the provisions
of both Codes have been mainly objections to the policies sought to be im-
plemented, and on this matter there can of course be different views. What it
has been sought to suggest, however, is that the drafters’ approach to their
preparation of the Israeli Code is, in comparison with that which seems to
have been adopted by the Royal Commission, likely to lead to very much more
productive results.
There is every indication that the Royal Commission has studied the exist-
ing English law of divorce jurisdiction and recognition with scrupulous care,
and indeed one would not expect the position to be otherwise. It must be said,
however, that the disadvantages of preparing a new body of law by endeavour-
ing to patch, sew up, repair, and fill the gaps in the old body of law are made
glaringly manifest by some of the results which it may be conjectured would
follow were the Royal Commission’s Code to become law. The effect of
pouring new wine into old bottles is frequently more drastic than is really
desired, and the sections of the Draft Code dealing with the recognition of
foreign divorce decrees is an admirable example in point. It is true that the
rules of private international law are frequently said to be based on the comity
of nations, but comity among nations is not necessarily achieved by a hectic
striving for reciprocity at the expense of domestic policies built up over
generations.
It has already been pointed out that the main interest in the Israeli Draft
Family Code lies in the fact that it is an extremely valuable experiment in
comparative law, and is an outstandingly successful synthesis of what its
drafters regarded as the best features of a large .number of foreign codes and
foreign bodies of law in which they had been trained and within whose frame-
work they had worked. It is refreshing to note that, in spite of this, the
drafters are not prepared to abandon certain fundamental policies as a sop to
attract reciprocity in other jurisdictions.
It is hoped from what has been said that it will appear that some of the
suggested measures appearing in the Israeli Draft Code deserve the most
careful scrutiny and consideration, and that some of the measures advocated
in the Royal Commission’s Code deserve the most careful scrutiny and re-
consideration. It is not likely that it will ever be suggested that our own
law, and our own legal concepts, are “so good and so right”10 5 that we cannot
afford to learn from others.
1o1SPer Jaames, L. J., in In re Goodman’s Trusts (1881), 17 Ch. D. 266, 299.
