Marriage and Divorce Laws of the World

by Hyacinthe Ringrose

Restitution of Conjugal Rights.—Husbands and wives are entitled to each other’s society, and if, without sufficient reason, either of them neglects to perform his or her obligations the injured party may institute what is known as a suit for restitution of conjugal rights, in which the court will grant a decree directing the offending party to render conjugal rights to the other party. If the decree is not complied with, such non-compliance is equivalent to desertion, and a suit for judicial separation may be instituted immediately. If the husband is the offending party, and if he has been guilty of adultery, a suit for divorce may at once be instituted; or if he commits adultery subsequently to the date of the decree for restitution, proceedings for divorce may be taken. Furthermore, if the suit for restitution is brought by the wife, the husband may be directed to make such periodical payments for her benefit as the court may think just. If the suit for restitution is brought by the husband, and if the wife is entitled to any property, the court may order a settlement for the whole or part of it for the benefit of the husband and children of the marriage, or either or any of them, or may order the wife to pay a portion of her earnings to the husband for his own benefit, or to some other person for the benefit of the children of the marriage. A husband cannot compel his wife to live with him by force, and if he seizes and retains possession of her, she or her relatives can obtain a habeas corpus to compel him to release her, but persons who wrongfully induce a wife to leave her husband, or who detain her from his society by improper means, are liable to an action for damages by him. If a husband declines to live with his wife because he discovers that she has been unchaste before marriage she cannot obtain a decree for restitution of conjugal rights unless he knew of the fact before the marriage took place. If a husband has been guilty of cruelty he cannot obtain a decree for restitution.

Foreign Marriages.—The Foreign Marriage Act of 1892 (55 and 56 Vict. c. 23) forms a complete code upon the subject of the marriage of British subjects abroad.

Its chief requirement is that one at least of the parties to the marriage must be a British subject.

Notice of the proposed marriage must be given fourteen days before the ceremony, and it must be performed before one of the following officials, who is termed in the Act a “marriage officer”: the British ambassador, minister or chargé-d’affaires, accredited to the country where the marriage takes place; the British consul, governor, high commissioner, or official resident. The term consul in the Act includes a consul-general, a vice-consul, pro-consul, or consular agent.

If the woman is a British subject, and the man is a subject or citizen of another country, the marriage officer must be satisfied that the intended marriage would be recognized by the laws of the country where the man to be married belongs.

In 1896 there was passed the Marriage with Foreigners Act (6 Edw. 7, 3. 40), which is intended to protect British subjects who contract marriages with subjects or citizens of other countries, either at home or abroad, and to run the risk of having their marriages treated as invalid by the law of the country of the foreign contracting party. It provides for the granting of certificates by competent authority in the country to which the foreign party to the marriage owes allegiance, stating that there is no lawful impediment to the proposed marriage.

Conflict of Laws.—English courts do not recognize a decree of divorce granted by the courts of a foreign country as having any effect outside of the country where granted, unless at the time of the beginning of the action which resulted in the decree both parties were domiciled within the jurisdiction of the court which granted it.

This rule applies to divorce decrees obtained in Scotland because for all the purposes of private international law Scotland is a foreign country.

The English courts will, however, recognize as possessing extra-territorial validity a decree of divorce which is recognized as valid by the courts of the country where the parties were actually domiciled at the time of its being granted.

In the case of Gillig v. Gillig, decided in 1906, the English High Court recognized as valid in England a divorce granted in South Dakota, U. S. A., of parties domiciled in New York, because the decree in question was recognized as valid by the courts of the State of New York. It is the doctrine of English courts that an honest adherence to the principle that domicile alone gives jurisdiction in a divorce action will preclude the scandal which arises when a man and woman are held to be husband and wife in one country and strangers in another.