REVUE DE DROIT DE McGILL
[Vol. 34
On Blackstone, California Divorces and the Retrospectivity
of the Common and Civil Laws: Edward v. Edward
H. Patrick Glenn*
In Edward v. Edward (Estate), the Saskatchewan Court of Appeal rec-
ognized a 1955 California divorce on the ground that a “real and substantial
connection ‘ 2 existed between the parties and the State of California. The
connection existed in the form of the residence of both husband and wife
in California at the time of the decree, and the Court reached its decision
notwithstanding the absence of proof of acquisition of a California domicile
by the husband. In so doing, the Court aligned itself with other provincial
courts 3 in following the decision of the House of Lords in Indyka v. Indyka,1
and in refusing to follow previous decisions of the Judicial Committee of
the Privy Council 5 and the Supreme Court of Canada 6 to the effect that the
domicile of the husband was the only acceptable ground of jurisdiction for
a foreign court in matters of divorce. The Supreme Court in 1976 had
expressly left open the question of whether a “real and substantial connec-
tion” test should be adopted and had not itself overruled previous law. 7
Speaking for the Saskatchewan Court of Appeal, Bayda C.J.S. expressly
rejected the argument that this change in the law should be of prospective
effect only and unavailable to the applicant in Edward. He cited Blackstone
(“For if it be found that the former decision is manifestly absurd or unjust,
it is declared, not that such a sentence was bad law, but that it was not the
law”),8 acknowledged recent academic writing on the subject of prospective
*Peter M. Laing Professor of Law, McGill University.
McGill Law Journal 1989
Revue de droit de McGill
‘(1987), 39 D.L.R. (4th) 654, [1987] 5 W.W.R. 289 [hereinafter Edward cited to D.L.R.].
2Supra, note 1 at 661.
31n Manitoba, see Holub v. Holub (1976), 71 D.L.R. (3d) 698, [1976] 5 W.W.R. 527, 26
R.EL. 263 (C.A.); in Ontario, see Bevington (Hewitson) v. Hewitson (1974), 47 D.L.R. (3d)
510, 4 O.R. (2d) 226 (H.C.).
4(1967) [1969] 1 A.C. 33, [1967] 3 W.L.R. 510, [1967] 2 All E.R. 689 [hereinafter Indyka
cited to A.C.].
69-70.
5Le Mesurier v. Le Mesurier, [1895] A.C. 517.
6Stephens v. Falchi, [1938] S.C.R 354, [1938] 3 D.L.R. 590.
7Powell v. Cockburn, [1977] 2 S.C.R. 218, 8 N.R. 215, 68 D.L.R. (3d) 700, 22 R.EL. 155.
8Commentaries on the Laws of England, vol. 1, 4th ed. (Oxford: Clarendon Press, 1771) at
19891
CHRONIQUE DE JURISPRUDENCE
overruling, and declined to follow U.S. authorities on what is there widely
known as “Sunbursting.” 9 He described the principle of retrospectivity as
“part of the declaratory theory of law”’10 and stated that “…the principle
has become so elementary that most courts now readily apply it without
making reference to it and perhaps without even recognizing that they are
using it.” 11 He concluded that “…the most cogent reason for rejecting [the
technique of prospective overruling] is the necessity for courts to maintain
their independent, neutral and non-legislative role…. By deciding an existing
case under the old rule but warning that future cases will be decided under
a new rule now being announced, a court is really usurping the function of
the legislature.”‘ 12 Elaboration of common law grounds of recognition of
foreign divorces thus continues to supplement the specific grounds of rec-
ognition established by federal divorce legislation, and the recognition of
all past divorces as well as the recognition of future ones.13
The decision is a good indication of the continuing vitality of the dec-
laratory theory of law and of the rather precarious hold which nineteenth
century concepts of precedent have had in this country, formal pronounce-
ments notwithstanding. 14 The declaratory theory of law teaches that law is
sought, and not made. If a better solution is sought and found, it represents
the law as it is perceived, and previous perceptions have no claim to per-
manence as law then “made.” Bayda C.J.S. thus rejected the application,
in his words, of “the law of Saskatchewan as it was perceived in 1957.”5
While the declaratory theory has been much criticized by those who prefer
to make or, with increasing frequency, to unmake law, it is receiving new
and unexpected support in jurisdictions which have placed great reliance
on legislative sources of law,16 and from contemporary cybernetics and com-
9From the decision of Cardozo J. in the case of Great Northern Railway Co. v. Sunburst Oil
& Refining Co., 287 U.S. 358 (1932), upholding a decision of the Supreme Court of Montana
refusing to make its ruling retrospective. Of prospective overruling in the U.S.A., Professor
Dickerson has concluded that “[a]lthough occasionally used, it has not been widely and freely
adopted.” R. Dickerson, The Interpretation and Application of Statutes (Boston: Little, Brown,
1975) at 256 n. 43.
10Supra, note 1 at 661.
1Ibid.
‘ 2Supra, note 1 at 664.
t3See the Divorce Act, 1985, S.C. 1986, c. 4, s. 22, expressly preserving non-statutory grounds
of recognition.
14See further H.P Glenn, “Persuasive Authority” (1987) 32 McGill L.J. 261 at 293-94.
15Supra, note I at 660. His language is similar to that of Lord Reid in Indyka, supra, note
4 at 69: “… it is well recognised that we ought not to alter [readily] what is presently understood
to be the law…..
16For France, see C. Mouly, “La doctrine, source d’unification internationale du droit”
R.I.D.C. 1986. 351 at 364: “Le droit est variable et difus. II est done une mati~re A d6couvrir
et non pas A crier.”
McGILL LAW JOURNAL
[Vol. 34
munications theory (as a means of obtaining decentralized, non-hierarchical
and yet co-ordinated decision-making). 17 The retrospectivity implicit in the
doctrine is rarely unsettling, since concepts of resjudicata, limitations, time-
limited rights of appeal, and vested rights (no recovery of money paid under
mistake of law) have yielded what may be more appropriately called a
principle of “beneficial retrospectivity” (in an institutional sense), the ex-
ceptions to which have their own autonomy. Judges thus can change con-
temporary perceptions of the law, but they are reminded constantly that law
is rooted in the past, and that they must look to the past as well as to the
future in declaring present law.
The declaratory theory of law appears increasingly of interest in federal
or confederal jurisdictions. Separate juridical hierarchies operating on for-
mal theories of stare decisis do not easily yield a common law, and may
contribute significantly to the balkanization of what is meant to be uniform
legislation. That this may occur with respect to federal legislation is evident
from the concept of “intercircuit heterogeneity” in the United States, where
the frequency of differing interpretations of federal law by federal circuit
courts has led to calls for a national appellate jurisdiction to resolve inter-
circuit conflict. There has been less evidence of this in Canada, where de-
cisional law floats more freely over borders, but regional variation in
application of federal law is documented. 18 This is not in itself a bad thing,
but variation, like uniformity, can be taken to extremes. In many matters,
such as divorce, uniformity is further complicated by the fact that federal
legislation does not purport to occupy the field but assumes a background
of common or civil law.
The retrospective effect of case law has the enormous advantage in this
country of being common to both the civil and common law.19 In federal
fields, agreement on the law of the present thus also represents agreement
on the law of the past. The Quebec Court of Appeal has indicated that
17See M. Shapiro, “Toward a Theory of Stare Decisis” (1972) 1 J. Leg. St. 125 at 131: The
concept of stare decisis which is designated would allow “decision-makers to cooperate –
to
substitute, somehow, mutual influence for command from above.” Blackstone would have had
no problem with this, though the idea that decisions themselves could be retrospective or
prospective in application might have troubled him more. Judicial decisions were, after all,
merely evidence of a common law which had to be constantly re-searched and re-sought as
new problems arose.
18See L. Arbour, “Comparative Judicial Styles: The Development of the Law of Murder in
Quebec and Ontario Courts of Appeal” (1980) 11 R.D.U.S. 197, and G.E Murray & PG.
Erickson, “Regional Variation in Criminal Justice System Practices: Cannabis Possession in
Ontario” (1983) 26 Crim. L.Q. 74.
19For the necessarily retrospective effect of decisional law in the civil law tradition, see J.
Ghestin & G. Goubeaux, Traitj de droit civil, vol. 1, Introduction g~n~rale, 2d ed. (Paris:
LG.D.J., 1982) at 370 et seq., with references.
1989]
COMMENTS
although it does not consider itself formally bound by the decision of the
House of Lords in Indyka,20 it is willing to consider expansion of the grounds
of recognition of foreign divorces. 21 This turns out to be the same position
as that of the Saskatchewan Court of Appeal, and allows both courts to
adapt their common law to changing circumstances while benefiting from
common experience.
2oSupra, note 4.
21Claus v. Sonderegger (1978), [1979] C.A. 60 (refusing recognition of a Swiss divorce ob-
tained by a Swiss national shortly after re-acquiring Swiss nationality and while domiciled
either in Italy or Quebec).
