CO885-(11-13) — Page 399

1764.

سيليسيا

PUBLIC RECORD OFFICE

Reference :-

CO.

885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

12 PUBLIC RECORD OFFICE, LONDON

SIR,

No. 162.

(NEW SOUTH WALES.)

THE SOLICITOR-GENERAL to COLONIAL OFFICE.

Temple, 9th February 1878.

I was favoured with your letter of the 11th of July 1877, stating that you were directed by the Earl of Carnarvon to transmit to me a copy of a Despatch from the Governor of New South Wales enclosing the transcript of a Bill passed by the Legislative Council and Assembly of that Colony, and reserved by the Governor for the significa- tion 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 his Lordship desired you to request that, jointly with the Attorney-General and Dr. Deane, I would take these papers into consideration, and favour his Lordship with my opinion:

(1.) As to the effect 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.

In obedience to his Lordship's commands I have taken these papers into my consideration, and have the honour to

Report

That I have first to express my regret that a misapprehension as to the extent of the difference of opinion which existed between myself, the Attorney-General, and Dr. Deane has led to so long a delay in replying to the questions addressed to me.

Before, however, replying to the specific questions now, it will be convenient to advert to the course of judicial decision upon the question how far a marriage celebrated in England can be affected by a sentence of divorce in any foreign, Colonial, or Scottish Court.

In 1812 all the Judges decided in Lolley's case that no sentence or act of any foreign country or State could dissolve an English marriage à vinculo matrimonii for grounds upon which it was not liable to be dissolved à vinculo matrimonii in England.

The judgment in this case was unanimous, and Mr. Lolley was sentenced to seven years' transportation.

In the year 1831 a question involving the same point arose before Lord Brougham as Chancellor (who had himself been counsel for Mr. Lolley), in a case of Macarthy v. Decaix.

The husband was a Dane, the wife was an Englishwoman; the marriage had taken place in England, and Denmark was the admitted domicile of both at the time of the suit, which resulted in a decree of divorce in the Danish Courts.

The Chancellor held himself bound by Lolley's case, and pronounced the Danish divorce ineffectual.

About the same time Dr. Lushington, after expressing some doubt about the grounds on which Lolley's case was decided, finally gave judgment in the case of Conway v. Beasley, that he was bound by authority, obviously referring to Lolley's case, which indeed, in a subsequent part of his judgment, he quotes; and accordingly held that a Scottish decree of divorce was ineffectual to dissolve a marriage celebrated in England.

In 1858 the House of Lords affirmed the principle of Lolley's case, although it may be said that the particular decision in Dolphin v. Robins can be supported upon grounds raising a different question from that decided in Lolley's case.

In the year 1860, in Tollemache v. Tollemache, and in Palmer v. Palmer, the Courts of this country treated, in the one case an American and in the other a Scotch decree of divorce, as of no avail to dissolve an English and a Scotch marriage respectively, in accordance with the principles which have been referred to above.

▲ 12916.-158. 25.-12/84.

2

1901.