in several cases. The judgments vary according to the degree of prejudice with which such alliances were regarded. In Massachusetts, if the parties went into a state where they could lawfully marry and then returned, the marriage was held good.1 In Louisiana, a marriage in France between a Frenchman and a "person of colour" was held bad irrespective of the domicil. In North Carolina, the Court took up the intermediate position that the marriage was good if the parties were domiciled in the place of solemnisation, and it was lawful there.2 It can hardly be doubted that a prohibition of this kind would not affect the validity of a marriage celebrated in this country. The incapacity would be regarded as of a penal nature, and traceable to the institution of slavery. So in a French case it was held that a Frenchman married to a negress in Louisiana could not plead in France that the marriage was null by the law of Louisiana a case which goes much further, for there the marriage was invalid by the lex loci actus.1

Marriage of Priest or Nun.-In like manner the disability imposed in Catholic countries on persons who have taken religious vows or orders would not be recognised as invalidating a marriage celebrated here. The Tribunal Civil de la Seine has held the marriage of a Catholic priest celebrated in London invalid."

1 Medway v. Needham, 8 Am. Dec. 131.

2 Bishop, i. 865.

3 See per Hannen, J., in Sottomayor, supra, Dicey, p. 224.

Roger v. R., Trib. Civ. de Pontoise, 1884, Journal du Droit International Privé, Vol. xii., p. 296; cited in note to Gillespie's Bar, 2nd Ed., p. 356. Bar thinks the correct rule is that such a marriage is bad

wherever celebrated, if invalid by the personal law of the husband, ibid.

5 Per Hannen, J., in Sottomayor, supra, Dicey, p. 224; Story, § 94; Westlake, p. 58; Cf. Stephen's Comm., 11th Ed., i. 146, Metcalfe's Trusts, 1864, 2 De G. J. and S. 122. 6 Rouet v. R., Journal du Droit International Privé, Vol. xiv., p. 66. See Gillespie's Bar, p. 324.

CHAPTER XLI.

THE ESSENTIALS OF MARRIAGE.

As the form of Marriage is judged of by the lex loci, so the Essentials depend on the lex domicilii.-In entering into a marriage the wife acquires the husband's domicil, because she evinces by her mere consent to the union, the clear intention to make his home her own. From the moment of the marriage her domicil becomes the domicil of the husband. It is, therefore, natural that, in the absence of express contract to the contrary, the effects of the marriagethe rights of the husband with regard to the person of the wife or her property, and vice versa; the grounds upon which the marriage may be dissolved; the status and rights of the children; and, in fine, all the results flowing from the marriage shall be determined by the law of the country in which the parties intend to establish their home. In the words of Selborne, L.C., in a Scottish case: "When a marriage has been duly solemnised according to the law of the place of solemnisation, the parties become husband and wife. But when they become husband and wife, what is the character which the wife assumes? She becomes the wife of the foreign husband in a case where the husband is a foreigner in the country in which the marriage is contracted. She no longer

retains any other domicil than his, which she acquires. The marriage is contracted with a view to that matrimonial domicil which results from her placing herself, by contract, in the relation of wife to the husband whom she marries, knowing him to be a foreigner, domiciled, and contemplating permanent and settled residence abroad. Therefore, it must be within the meaning of such a contract, if we are to inquire into it, that she is to become subject to her husband's law,

DOMICIL CHANGED AT MARRIAGE.

401

subject to it in respect of the consequences depending upon the law of the husband's domicil." 1

And in a leading case, where a domiciled Scotsman had married an English woman, the marriage being celebrated in England, Lord Brougham said: "A domiciled Scotchman may be said to contract not an English but a Scotch marriage, though the consent wherein it consists may be testified by English solemnities. The Scotch parties, looking to residence and rights in Scotland, may be held to regard the nature and incidents and consequences of the contract according to the law of that country, their home; a connection formed for cohabitation, for mutual comfort, protection and endearment, appears to be a contract having a most particular reference to the contemplated residence of the wedded pair; the home where they are to fulfil their mutual promises, and perform those duties which were the objects of their union; in a word, their domicil." 2

Where the Parties contemplate a change of Domicil after the Marriage. It may happen that the intention of parties is to acquire a new domicil immediately after the marriage, as-e.g., if two persons domiciled in Scotland marry with the intention of going out to America, directly after the ceremony, to settle down there. In such a case it might be urged that the incidents of the marriage must be determined by the law of the State in which they intend to reside. Let us suppose that the husband dies on the voyage. Is the widow entitled to her legal rights by the law of Scotland? The question does not seem to have been determined, but the opinion is expressed, by writers of high authority, that when a change of domicil is contemplated at the marriage, the rights of parties will depend on the law of the intended home. Thus Pothier says, in a passage which may be thus translated:

"If the husband at the marriage intended to fix his domicil in the country of the wife-e.g., if a citizen of Lyons came to Orleans to marry a woman, with the purpose of establishing his domicil at Orleans, he would be taken in this case to have abandoned his domicil at Lyons, and to have acquired one at

1 Harvey v. Farnie, 1882, 8 App. Ca., at p. 50.

2 Warrender v. W., 1835, 2 Sh. and M'L., at p. 204.

Orleans, to the law of which place he must be considered to have subjected himself.

"Must we come to the same conclusion if the same citizen of Lyons had married the woman of Orleans at Paris, with the purpose of going to establish his domicil at Orleans?

"The ground of doubt is that, as domicil can only be acquired facto et animo, the man had not in this case, at the marriage, already lost his domicil at Lyons, or acquired one at Orleans, to which place he had not, at that time, gone. Notwithstanding, we must say that, although at the marriage he had not yet acquired a domicil at Orleans, it is sufficient that his intention was to establish his domicil there, in order to make Orleans rightly regarded as the matrimonial domicil, and that he should be taken, in consequence, to have wished that the marriage should fall under the laws of Orleans rather than under those of the domicil which he was on the eve of quitting."1

Story supports this theory. 'But suppose a man domiciled in Massachusetts should marry a lady domiciled in Louisiana, what is then to be deemed the matrimonial domicil? Foreign jurists would answer that it is the domicil of the husband, if the intention of the parties is to fix their residence there; and of the wife, if the intention is to fix their residence there; and if the residence is intended to be in some other place, as in New York, then the matrimonial domicil would be in New York." And after citing various jurists, he thinks the conclusion they arrive at is sound. But it is to be observed that Cujas, Huber, and Le Brun, to whom he refers, are contemplating a marriage in which the intended domicil is the husband's actual domicil at its date, though the ceremony is performed abroad. And the same remark applies to the American cases cited by Story. Here, it is clear law that the husband's domicil is to govern the rights of parties. But in the case where the marriage is contracted with a view to the husband's changing his domicil, it is submitted as not doubtful that the wife acquires first the actual domicil of the husband at the marriage. Mere animus will not change his

1 Traité de la Com. Art. Prelim.,

n. 15, 16.

2 Conflict of Laws, § 194. See also

Burge, For. and Col. Law, i., p. 245 ; and Westlake, 3rd Ed., p. 68.

CAN HUSBAND PREJUDICE WIFE'S RIGHTS ?

403

domicil, and hers must be the same as his. The case of Udny settles that if his domicil is one of origin, it is not lost except animo et facto, and if it is an acquired domicil, which may be abandoned, his domicil of origin reverts till he has acquired a new domicil of choice. The notion that the wife could maintain that part of the contract of marriage was that the matrimonial domicil should be in the new country, and that, therefore, her rights must be fixed by that law, seems untenable.3

Where the Husband's Domicil is changed during the Marriage. It is maintained by some writers that the husband cannot by changing his domicil prejudice the wife's rights, as they existed at the marriage. On general grounds of principle there is much to be said for this view. Savigny puts it thus: "A second controversy relates to the case in which the domicil of the husband is changed during the marriage. Here one opinion is that the local law of the earliest domicil remains decisive at all periods, and cannot therefore be changed by the election of a new domicil. The reason is generally stated to be that in the inception of the marriage there is included a tacit contract, that the conjugal rights of property shall be immutably settled according to the law of the present domicil. This opinion I hold to be correct. . . A second opinion refuses to assume a tacit contract, and makes the matrimonial rights of property depend solely on the law of the domicil. Hence it is concluded that in the case where a new domicil is chosen, its law must decide, and that therefore every change must have as its consequence a different law as to the matrimonial rights of property. Finally, a third and intermediate opinion rejects, like the second, the theory of a tacit contract, and likewise allows only the law of the existing domicil to decide, but with the reservation, that the estate acquired at the time of the marriage remains unchanged (jus quæsitum), and that only future acquisitions shall be governed by the law of the new domicil. Let us examine the arguments for these opinions a little more closely. Our unprejudiced sense of right certainly speaks in favour of the first. 3 See the dictum of Halsbury, L.C., in Cooper v. C., 1888, 15 R. H.L., at

1 Warrender v. W., 1835, 2 S. and M'L. 154; Dicey, p. 104.

2 Udny v. U., 1869, 7 M. H.L. 89.

P. 25.