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13 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
SIR,
No. 106.
(NEW SOUTH WALES.)
LAW OFFICERS to COLONIAL OFFICE.
20th July.
Royal Courts of Justice, 7th November 1887. We were honoured with Mr. Bramston's letter of the 11th ultimo, stating that he was directed by you to transmit to us, for our consideration, copies of despatches No. 4, from the Governor of New South Wales forwarding a "Bill to amend and extend the No. 155, law of Divorce" which had been passed by the Legislative Houses of the Colony, and th Aug. which he had reserved for the signification of Her Majesty's pleasure, and four 16th Aug. petitions praying that the Bill might not receive the Royal Assent.
That a copy of a letter from Bishop Barry of Sydney, dated the 6th June, stating his objections to the Bill was also enclosed.
No. 162,
That Mr. Bramston was to transmit to us, together with those papers, copies of the Constitution Act of the Colony, the Letters Patent constituting the Office of Governor, and the Royal Instructions to the Governor, and that he was also to refer us to the accompanying copies of reports, noted in the margin, from former law officers of the Attorney-Gen., Crown, respecting the Act of New South Wales, No. 57 of 1877 entitled "An Act to 4 Aug. 1877. amend the law relating to Divorce and Matrimonial Causes" to which objections were Gen., Sept. raised of a character similar to those now urged.
From Vicar-
1877. From Solicitor-
That you desired, in the first place, to be informed whether you were correct in Gen., 9th Feb. assuming that one effect of the Act would be that if a decree were pronounced under 1878. it for a divorce between parties not domiciled in the Colony and either of them married again and had children, such children would be legitimate in the Colony, but illegiti- mate in England if the person marrying were domiciled here.
That Mr. Bramston was secondly to request that we would be so good as to state whether we concurred with you in thinking that the Bill, as passed, was within the competence of the Colonial Legislature, and that no reasons had been assigned which should be held to justify interference, in the present case, with the powers conferred upon the Parliament of New South Wales.
That one objection had been stated to the enactment, that it introduced variations from the law established in other Colonies, but that you had reason to believe that a similar Bill was then before the Legislature of the neighbouring Colony of Victoria, and that you might add that the existing law of divorce was not uniform in all Colonies, as for example, the law of Mauritius was based on the French code.
We were also honoured with a further letter from Mr. Bramston, dated 17th October enclosing for our perusal a pamphlet by Sir A. Stephen on the subject of the new Bill.
In compliance with the request contained in Mr. Bramston's letter, I have the honour to
Report
(1.) That with reference to the first question, I am of opinion that a sentence of attorney divorce between persons domiciled in New South Wales, pronounced by a Court of
General's Report. competent jurisdiction in the Colony, and unimpeachable for fraud or collusion, would be effectual within that jurisdiction, and would also be entitled to recognition in the Courts of this country, notwithstanding that the dissolution was decreed upon grounds which would not be sufficient in England, and consequently that, in that case the children of either party by a subsequent marriage would be regarded as legitimate in England, as well as in the Colony. As to whether anything short of domicil will enable the Court of the country in which the decree is made to pronounce a decree which will be recognised in England, is at least doubtful.
Under exceptional circumstances, English courts have been held to have jurisdiction to dissolve a marriage between parties who were not domiciled, but who were bonâ fide resident in the country in which the proceedings were taken, (see Niboyet v. Niboyet, 4 Probate Division I.) but even in that case, the question whether the decree
▲ 50069.-34. 25.-11/87.
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