(1) To establish an uniform nationality for the Empire coupled with the test of residence in regard to local laws, such as we should see in the United States if the Americans adopted residence instead of domicil as the test in every State, and
(2) To substitute an uniform test of residence for domicil while safeguarding certain convenient doctrines by international, as well as imperial, convention.
It is, for instance, highly undesirable for a Frenchman to carry about with him an incapacity to marry under 25 without parental consent wherever he goes. If he marries an Englishwoman in England the French Courts must be induced to admit that the marriage contract is good if celebrated according to English law. This also applies to Italy.
Again there is an obvious convenience in the old rule that land must be dealt with according to the law of the country where it is situate, and personal property according to the law of the domicil (or, as I should prefer to have it, the law of the local nationality).
It is anomalous that a colony like British Columbia should exact death duties on shares held in an industrial company trading in Vancouver by a deceased Englishman domiciled in England. A special order in Council enables the executors of the Englishman to recover the estate duty they have to pay on such shares before the will can be proved; but it does not relieve them from the nuisance of filling up forms to supply a vast quantity of absurd and irrelevant information compared with which the famous Form 4 was positively pleasurable.
To establish the test of nationality would at once sweep away most of the worst cases of conflict between our own test of domicil and the continental test of residence. There would be comparatively little confusion as to what law should be applied in most cases. If an Englishman died in France his Imperial nationality would at once determine the principle that his status and property were in no way involved in any question of a French domicil, and his English “local nationality” acquired either by birth or residence would determine the rest. This would entirely fit in with the laws of the Continent.
The same facilities would make for uniformity in the marriage laws throughout the Empire. An Imperial subject living in, e.g., the West Indies or the Channel Islands (where there is no divorce) would be entitled to obtain a divorce according to the law of England or Scotland or any colony in which divorce existed by, say, five years’ residence. The period of residence and nationality are indisputable facts; the domicil is not. Take, for example, Scotland. A woman may divorce her husband in Scotland, yet the Scottish law permits her husband within 40 years after the decree to go to the Court and annul the decree on the ground that his domicil was not, at the time of the suit, Scottish, although he may have put in no such defence at the time. A law which clearly could not be invoked except after a period of five years’ continuous residence, without regard to what the husband’s intentions were or where he happened to own houses or land, makes for order where the present law produces chaos. Under my system the husband will no longer be able to say, “I had property in Scotland, but I did not often reside there; I have now decided to let it, and my present intention is to die in Timbuctoo.”
The test of residence would also solve the difficulties of a wife living apart from her husband because she might be allowed to acquire the right of invoking the laws of the country in which she resides, as she can to-day in England when she asks under the old ecclesiastical rule for a judicial separation or nullity of marriage, and this right would be recognized throughout the Empire.
Every day the tests of nationality and residence are gaining ground. Every day the test of domicil gives rise to more complicated disputes. Unless we mend our ways in time, the present confusion will become rapidly worse confounded.
I venture to think that a reform which so obviously appeals to the common sense of mankind must arrive within at least fifty years. It involves rather less hard work than the Birkenhead Statutes about real property.