10,997.
PUBLIC RECORD
OFFICE
CO.
Reference :-
885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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MY LORD,
No. 150.
(NEW SOUTH WALES.)
THE VICAR-GENERAL to COLONIAL OFFICE.
Temple, September 1877.
I AM honoured with your Lordship's commands, signified in Mr. Bramston's letter of the 11th July last, stating that he was directed by your Lordship to transmit F.O., 11th to me a copy of a despatch from the Governor of New South Wales enclosing the July 1877. transcript of a Bill passed by the Legislative Council and Assembly of that Colony, and reserved by the Governor for the signification of Her Majesty's pleasure thereupon, entitled "An Act to amend the law relating to Divorce and Matrimonial causes.'
That the Governor also enclosed a report upon the Bill by the Attorney-General, and a protest against its provisions by certain members of the Legislative Council.
That your Lordship desired Mr. Bramston to request that, jointly with the Attorney- General and Solicitor-General, I would take those papers into consideration, and favour your Lordship with our opinion-
(1.) As to the affect which a decree pronounced under that Act would have upon a
marriage contracted in England.
(2.) As to the rights of children by a second marriage of either of the divorced persons, contracted in the lifetime of the other, to succeed to property out of New South Wales, and
(3.) Generally as to whether the Act might properly be submitted for Her Majesty's
sanction.
I am sorry that some difference of opinion exists between the Attorney-General and the Solicitor-General and myself upon the matters respecting which your Lordship desires our opinion, and that it is therefore necessary to trouble your Lordship with separate reports.
For myself I have the honour to
Report
That the proposed Act would make the law of New South Wales similar to that in Scotland in like cases.
The tribunals of England have hitherto held that, as respects England, a Scotch divorce had no effect upon a marriage contracted in England between domicil, at the time of the marriage, was English.
persons whose
But in Warrender v. Warrender (Cl. and Finn. 1) and in the more recent case of Giels v. Giels (1 Macqueer's H.L.C.), where the marriages were had in England, but the de facto domicil of the husband was at the time of the marriage Scotch, the House of Lords, considering the marriage in such case to have been in form English, but in substance and essentially Scotch, held that the law of Scotland applied, and that the decrees of divorce pronounced by the Scotch Courts were absolute and effective.
I am therefore of opinion that a decree of divorce pronounced under the proposed Act would be effective, if at the time of the marriage had in England the husband was domiciled in New South Wales; but if the husband, at the time of the marriage, were domiciled in England, the decree of divorce under the proposed Act would have no effect, at least in England, upon the marriage contracted in England.
2. The rights of the children of the second marriage of either of the divorced persons, contracted during the lifetime of the other, to succeed to property out of New South Wales, must depend upon the effect which the law of the particular country in which those rights come in question may give to the decree of divorce pronounced in New South Wales under the proposed Act.
In England the children of the second marriage would have the rights of legitimate children, if the decree of divorce were made upon a marriage in which the husband was at the time of the marriage domiciled in New South Wales, but they would be illegitimate if the husband were, at such time, domiciled in England.
3. The proposed Act will introduce a great change in the matrimonial law of the Colony, and make that law in this respect at variance with the law of England; whether such change would be beneficial or expedient in the Colony I cannot form an opinion.
▲ 18916.-146. 25.-12/84.