4192,
PUBLIC RECORD OFFICE
Reference :-
PLEC.O. 885
بالسلبيا
10 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
SIB,
No. 332.
(MALTA.)
LAW OFFICERS to COLONIAL OFFICE.
Lincoln's Inn, April 27, 1865. We are honoured with your commands signified in Sir F. Rogers' letter of the 13th instant, stating that he was directed to acknowledge our report respecting the validity of marriages celebrated in Malta according to Protestant rites. That, with reference to the 4th question submitted to us in Sir F. Rogers' letter of the 15th February, we stated that in our opinion there is adequate cause for legislative interference for the purpose of removing doubts "as to past marriages, and that it is
very
expedient that the validity of the marriages referred to should be confirmed and for the future made clear by a proper Ordinance."
#
That there is, however, one further question on which you, Sir, wish clearly to ascertain our opinion. That you, Sir, apprehend that the legislature of a colony is clearly competent to pass a law to regulate prospectively marriages, and marriages celebrated afterwards in the Colony according to such law would (subject to certain exceptions not now material) be valid throughout the British Empire and also that any marriage solemnised in the Colony in an invalid manner, but subsequently validated by a retrospective Colonial law, would be deemed in the Colony to have been valid ab initio.
But that it is not so evident that this subsequent validation would extend beyond the limits of the Colony in which it was made, or that an English court dealing with an English suit or English property would consent to treat the irregular marriage as having been (at any rate before the passing of the validating Act) other than it really was, ie, null and void. That the question is important, as Acts of this kind have been passed in different Colonies, and important rights may depend upon their sufficiency.
Sir F. Rogers was therefore pleased to request our opinion whether a Colonial Act giving validity retrospectively to marriages irregularly contracted within the limits of the Colony has any effect, and, if so, what effect it has beyond those limits. Whether the proposed law for validating retrospectively Maltese marriages should be passed by the local or by the Imperial Legislature; and whether there is any necessity for an Imperial Act, for confirming those Colonial Acts or Ordinances which have been already passed to give validity to marriages irregularly solemnised.
In obedience to your commands we have taken this matter into consideration, and have the honour to
Report
That there can be no doubt of the validity throughout the British Empire (except in certain special cases into which it is unnecessary here to enter) of every marriage solemnised in a British Colony which is valid by the law in force there at the time of its celebration.
With respect to a Colonial Act for the purpose of giving validity retrospectively to marriages irregularly contracted within the limits of the Colony, we are of opinion that, although such Act might be effectual beyond the limits of the Colony for all purposes properly dependent on the law of domicil, as to persons whose domicil was in that Colony at the time both of the marriage de facto and of the passing of the Confirmatory Act, yet it would not be effectual beyond those limits as to other persons or for purposes (e.g., the succession to real property in England) not properly dependent upon the law of domicil. We think therefore that it will be expedient that any Act for the purpose of removing doubts as to the validity of such marriages should be passed by the Imperial and not by the Local Legislature. An Imperial Act will have force as to all British subjects throughout the British dominions without reference to any question of domicil, and it will also (as we conceive) have, even in foreign countries as to all British subjects, have British matrimonial domicil, the same force which a similar Colonial Act would have by inter- national law or usage as to persons subject, by reason of other domicil, to the legislation of the particular Colony.
• No. 321.
16278,-736. 25.-2/86.