1884 Schlachter (b), Dutcher v. Dutcher (c), Pate v. Pate (d), Under our own law, moreover, the courts will not always press the legal fiction that the husband's domicile is that of the wife. In a case of Langevin v. Barette (h), the Superior Court took jurisdiction to annul a marriage at the instance of the wife, although the husband was at the date of the institution of the action, and had been for seventeen years previous thereto, domiciled in the United States. The question now before this court is not, therefore, whether or not the Superior Court in the Province of Quebec would, under Article 6 of the Civil Code, be entitled to assume jurisdiction in the matter, but whether the comity of nations requires that the jurisdiction of the foreign court taken under the circumstances above detailed should be recognized. It is not denied that the present appellant might sue in our courts for rights concerning her capacity and status, but this by no means implies that no other courts are open to her for enforcing such rights. But the learned Chief Justice of the Court of Queen's Bench appears to have been largely influenced in forming his opinion by his belief that the divorce in question was obtained in fraudem legis, and the cases which he has cited from the American reports as applicable to the present case, were decided upon. facts which left no doubt in the mind of the court that there had been collusion between the parties and removal from the jurisdiction with intent to evade the laws of their domicile. In the present case there are absolutely no grounds for suspecting fraud or collusion. Another objection made by the learned Chief Justice is that the decree rendered by the Supreme Court of New v. FISK. 1884 v. FISK. York is contrary to the public policy of the Province of STEVENS Quebec, and cannot in consequence obtain recognition from our courts, inasmuch as divorce is not allowed under our law. Now, the appellant does not for a moment contest the general principles laid down by the learned Chief Justice that a State will refuse to give effect to foreign judgments which are contra bonos mores, but it is respectfully submitted that divorce a vinculo for adultery is not comprised in the category of laws or customs which civilized nations regard as contrary to public policy. In Canada the remedy has been left to the discretion of the Federal Parliament, which acts judicially in granting divorces a vinculo. Divorce, then, cannot be said to be against the public policy of Canada, since Parliament will grant it for sufficient cause, and especially on the ground of adultery. Kerr, Q.C., for the respondent. The evidence shews the respondent's intention to abandon his old domicile in New York and to acquire a new domicile in some part of Canada. But his New York domicile being his domicile of origin, continued to be his domicile until he had, in fact, acquired a domicile of choice. Art. 80, C.C.; Guthrie's Savigny, pp. 54, 59; Foote, Priv. Int. Law, pp. 10-15; Dicey on Domicil, rule 8, pp. 86-90. The respondent acquired a new domicile of choice so soon as he had fixed his residence in the Province of Quebec, with the intention of there remaining. Dicey on Domicil, rule 7, pp. 73-86. The acquisition of a domicile of choice in Quebec by the husband gave to the wife a Quebec domicile. The principle common to the law of nearly every State being that the domicile of the wife, not separated from bed and board, is that of her husband. Art. 83, C.C.; Art. 108, C.N.; Guthrie's Savigny (1 ed.), sec. 10, par. 353, pp. 56, 60; Wharton, Conflict of Laws, par. 43, 44; Westlake, par. 241 (2 ed.). The appellant and respondent being domiciled in the Province of Quebec during the whole of the year 1880, were, therefore, in June of that year, when the action for divorce was instituted before the Supreme Court of the State of New York, subject to the laws of that province, and amongst others to those respecting the status and capacity of persons. So that if the status of a person be governed by the law of one State which prohibits a change therein under any circumstances, no action or proceeding in a foreign State by which a change in that status is sought to be effected can be regarded as effective by the tribunals of the first-named State. A judgment rendered in the foreign State affecting that status would be regarded by the tribunals of the first-mentioned State as void for want of jurisdiction. Doglioni v. Crispin (i); Foote, pp. 473, 474; 2 Bishop, Marriage and Divorce, par. 134, 38, 144; Dicey on Domicil, pp. 258-264. Marriage is recognized everywhere as producing a great change in the status of the consorts. Foote, pp. 474, 475; Bard, Droit Int. Privé, Nos. 139-141; Chassat, Traité des Statuts, No. 191; 4 Phillimore, sec. 322; 1 Bishop, par. 119; 2 Bishop, par. 193; Dicey, p. 155. Divorce is also recognized as producing a change of status in the persons divorced. Foote, pp. 473, 474; Chassat, No. 197; Dicey, p. 156. It therefore follows that a marriage to be valid and binding must not be contracted in violation of the laws which govern the status and capacity of the contracting parties at the time of the marriage. And, as a corollary hereto, that a divorce to be valid must not be in violation of the law which governs the status and capacity of the parties divorced pending proceedings for such a divorce. Upon these principles is founded the doctrine that the only tribunals competent to decree divorce are those authorized so to do by the State whose laws govern the status and capacity of the consorts. In Germany it is admitted that the court of the actual domicile of the consorts alone can pronounce a valid divorce. Wharton, sec. 210; Guthrie's Savigny, sec. 379, p. 248. In England, previous to the 20 and 21 Vict. ch. 85, (i) L.R. 1 H.L. 301. 1884 STEVENS v. FISK. 1884 STEVENS v. FISK. the jurisprudence may be considered to have been settled in the same sense as in Germany, viz. : That the court of the actual domicile of the consorts alone had jurisdiction to pronounce a divorce between them. Warrender v. Warrender (j), Shaw v. Atty.-Gen. (k), Manning v. Manning (l), per Lord Penzance; Foote, p. 70. The contract is indissoluble and contemplates perpetuity. Divorce is a penalty imposed by the court of the domicile. Marriage is founded on the jus publicum, and the parties are therefore unconditionally subjected to the jus publicum of the place where they are domiciled. Wharton, par. 211, and authorities cited par. 237, 206; Story on Conflict of Laws, par. 15; par. 230 a, b and c; Guthrie's Savigny, par. 379, p. 243; Fiore, Nos. 122, 123, 126; Bishop, par. 180, 198; Dicey, p. 240. Another ground taken for the recognition of the decree of divorce is that the respondent appeared in the suit, and that thereby jurisdiction was vested in the Supreme Court of the State of New York to proceed and make a decree dissolving the marriage tie between him and the appellant. Consent in a case such as the present is of no avail to vest jurisdiction in a foreign court. In the first place an act by a domiciled inhabitant of Quebec by which a divorce should be decreed between him and his wife in a foreign State is an attempt to evade the law of his domicile, it is an attempt on his part to violate a law d'ordre publique of the province, and as such cannot be countenanced by that law. Fiore, No. 92, p. 186, No. 121; Chassat, No. 197, p. 263. Lastly, if the divorce upon which is based the action of the appellant be held to be invalid, she is still the wife of the respondent, and in order to enable her to take out the writ of summons against him in that action it was absolutely essential for her to be duly authorized in the manner required by law. A married woman cannot bring such an action as the present one against her husband without being authorized either by him or by a judge having jurisdiction, (k) 2 P. & D. 156. (j) 2 Cl. F. 488. (1) 2 P. & D. 223. and the want of such authorization is an absolute nullity which nothing can cover. RITCHIE, C.J.-This is one of the most difficult, and I may say at the same time one of the most interesting cases in relation to private international law and the comity of nations with which I have ever had to deal. The conflicting authorities on the principles which I think must govern this case-the absence of direct authority on a case similar in all its particulars and the consequent unsettled state of the law, together with the very great importance of the case generally, as well as to the parties immediately interested, particularly to the plaintiff, have impressed me with the very grave responsibility of its determination. After the fullest and most careful investigation that I have been capable of bestowing on this case I have (not, however, without doubts and misgivings) at last arrived at the conclusion that this appeal should be allowed and the judgment of the first court re-instated. I think the evidence establishes that the plaintiff had a sufficient residence in New York to enable her to obtain under the law of New York a valid divorce there, and that she did in accordance with the laws of the State of New York without fraud or collusion obtain such divorce from a court competent to pronounce it, and I think such divorce should be recognized by the courts of Quebec. At any rate if the question of jurisdiction turns on the question of the husband's domicile, the burthen was on the husband to shew that he had actually changed his domicile of origin and his matrimonial domicile, animo et de facto. Being cited before the court of New York and appearing in the suit and submitting to and not disputing the jurisdiction of the court, the legitimate and fair presumption against him is that he had not changed his domicile animo and de facto, and, therefore, the decree of divorce was valid and should be recognized as such in the courts of Quebec. 1885 STEVENS v. FISK. |