[PROBATE, DIVORCE AND ADMIRALTY DIVISION]

SOTTOMAYOR, OTHERWISE DE BARROS v. DE BARROS.

Nullity of Marriage - Consanguinity - First Cousins - Marriage illegal by the Law of Domicile.

The petitioner and respondent, Portuguese subjects and first cousins, came to reside in England in 1858. In 1866 they went through a form of marriage before the registrar of the district of the city of London. In 1873 they returned to Portugal, and continue to reside there. By the law of Portugal a marriage of Portuguese subjects, being first cousins, without dispensation, wheresoever contracted, is invalid:-

Held, that the Court of the place of contract of marriage is not bound to recognize the incapacities affixed by the law of the domicile on the parties to a contract of marriage, if such incapacities do not exist according to the lex loci contractžs, and to pronounce a marriage, otherwise valid, to be null and void by reason of such incapacity.

IN this case the petitioner Ignacia Clara Maxima Pacheco Pereira Pamplona da Cunha Sottomayor, described as of Lisbon, in the kingdom of Portugal, applied to the Court to declare her marriage with the respondent Gonzalo Lobo Pereira Caldos de Barros to be null and void. The petition set out a form of marriage between the parties on the 21st of June, 1866, at the registry office in the city of London; it then proceeded:- 2. That your petitioner and the respondent are both natives of Portugal and Portuguese subjects, and were at the date of the said marriage domiciled in the kingdom of Portugal. 3. That your petitioner and the respondent are natural and lawful first cousins, and that according to the law, in force in Portugal at the time of the said marriage and now, first cousins are incapable of contracting marriage on account of consanguinity. 4. That your petitioner and the respondent have never cohabited as husband and wife, and the said marriage has never been consummated, and for the reasons aforesaid is null and void in law. 5. That the marriage aforesaid was procured by fraud upon the petitioner. 6. That when the petitioner went through the said ceremony of marriage she was ignorant that she was contracting a valid and binding marriage. (These two last paragraphs were added by authority of the Court in an order dated the 5th of July, 1876.)

The petition was personally served upon the respondent at

Labrosa, in Portugal, and he entered an appearance to the citation, but did not file an answer, and the matter came on for hearing as unopposed before Sir R. J. Phillimore on the 5th of July, 1876, who directed that the petition when amended should be served on the solicitor of the respondent, and that the papers in the suit should be sent to her Majesty's Proctor in order that he might, under the direction of the Attorney General, instruct counsel to argue before the Court the question whether the petitioner had shewn a sufficient ground for a decree of nullity, first, by reason of the incapacity of the parties to contract marriage in 1866; secondly, by reason of fraud as shewn by the evidence laid before the Court; thirdly, by reason of the petitioner's want of intention to contract a marriage, and of her ignorance of the effect of the ceremony as shewn by the evidence already laid before the Court.

In consequence of this order, on the 22nd of November, 1876, the Queen's Proctor filed his answer as follows:- 1. That the petitioner and respondent have been acting in collusion for the purpose of obtaining a decree of nullity of marriage. 2. That on the 21st of June, 1866, the petitioner and respondent, being capable of contracting marriage, were lawfully married by licence at the registry office for the district of the city of London. 3. That the said marriage was not procured by fraud upon the petitioner as in the fifth paragraph of her petition alleged. 4. That the said petitioner intended to and did contract a lawful marriage by the ceremony observed as above alleged, and was not ignorant of the effect thereof. 5. That the petitioner and respondent cohabited as husband and wife, and that the said marriage was consummated, and is good in law. 6. That at the time of the said marriage the petitioner and respondent, were domiciled in England, and were not domiciled in the kingdom of Portugal. 7. That the petitioner and respondent intended at the time of the said marriage to live together as man and wife in England, and did so live for six years; that the validity of the said marriage is to be determined by the law of England. He prayed the Court to dismiss the petition, and pronounce for the validity of the marriage. As regards the charge of collusion, the particulars filed were that the petitioner and respondent agreed and combined together to have a petition for a decree of nullity of marriage presented, and to have divers facts

alleged and proved under the petition which were untrue to the knowledge of them both, and agreed that the petition should set up a sham case herein.

The evidence in the case was chiefly taken in Portugal on commission, and the following facts were proved: that the petitioner and respondent were both born at Oporto, in Portugal, the latter in 1850, and the former in 1851, and were first cousins; that they were, and are, Roman Catholics, and domiciled Portuguese subjects. That in the year 1858 the petitioner, her father and mother, and her uncle De Barros and his family, including the respondent, his eldest son, came to England, and the two families occupied a house jointly in Dorset Square, London. The petitioner's father came to this country for the benefit of his health, and De Barros for the education of his children and to superintend the sale of wine. De Barros subsequently, in 1861, became manager to a firm of wine merchants in London, under the style of Caldos Brothers & Co., of which the petitioner's father was made a partner, and which stopped payment in 1865. De Barros died in London in 1870, and his son, the respondent, returned to Portugal in 1874, having inherited some landed property at Alto Douro, in Portugal. The petitioner returned to Portugal in January, 1873, and her father was removed there in a state of imbecility in September, 1874.

On the 21st of June, 1866, the petitioner, at that time of the age of fourteen and a half years, and respondent sixteen years of age, were married in the registrar's office of the city of London, in the presence of the mother of the petitioner and the father of the respondent and the grandmother of both parties. No religious ceremony accompanied or followed such marriage, and although the parties lived together in the same house until the year 1872, they never slept together, and the marriage was never consummated. The petitioner stated that she went through the form of marriage contrary to her own inclination, by the persuasion of her uncle and mother, on the representation that it would be the means of preserving her father's Portuguese property from the consequences of the bankruptcy of the wine business. The marriage was never recognized by the respondent or by the friends and relations of either party. It appeared, from the

evidence of advocates acquainted with the law of Portugal that, as at the time of marriage the petitioner and respondent were natives of Portugal and Portuguese subjects and domiciled there, and were natural and lawful first cousins, the marriage was null and void, because, by the law of Portugal, first cousins are incapable of contracting marriage on account of consanguinity, and such marriage would be held by such law to be incestuous, and therefore that the petitioner and respondent were incapable of contracting a valid marriage either in Portugal or elsewhere.

July 5, 1876. Inderwick, Q.C., Dr. Tristram, and Bayford, appeared for the petitioner.

Feb. 27. Willis, Q.C., and Jacques, for the Queen's Proctor.

[The cases referred to were Dalrymple v. Dalrymple(1); Harford v. Morris(2); Countess of Portsmouth v. Earl of Portsmouth(3); Hall v. Hall(4); Compton v. Bearcroft(5); Steele v. Braddell(6); Mette v. Mette(7); Simonin v. Mallac(8); Brook v. Brook.(9)]

March 17. SIR R. PHILLIMORE. The marriage in this case took place on the 21st of June, 1866, at the registrar's office in the city of London district, between Gonzalo Lobo Pereira Caldos de Barros the younger, and Ignacia Clara Maxima Pacheco Pereira Pamplona da Cunha Sottomayor. On the 18th of November, 1874, the wife filed a petition praying that the marriage might be decreed null and void by reason of consanguinity between the parties. On the 5th of July, 1876, the case came before the Court for hearing. A witness was examined orally, and the evidence of witnesses taken under a commission was read. An appearance had been entered on behalf of the respondent, but he had not pleaded, and counsel were heard on behalf of the petitioner only. Taking into consideration the peculiar circumstances of the case, which I am about to state, I thought it

(1) 2 Hagg. Cons. 54, 104.

(2) 2 Hagg. Cons. 423.

(3) 1 Hagg. Eccl. 355.

(4) 15 Jur. 710.

(5) 2 Hagg. Cons. 444, n.

(6) Milw. Ir. Eccl. Reps. 21.

(7) 1 Sw. & Tr. 416; 28 L. J. (P. M. & A.) 117.

(8) 2 Sw. & Tr. 67; 29 L. J. (P. M. & A.) 97.

(9) 9 H. L. C. 217.

expedient that the averments in the petition should be enlarged so as to enable the Court to consider whether there was not ground for a decree of nullity, first, by reason of the incapacity of the parties to contract marriage in 1866; secondly, by reason of fraud, as shewn by the evidence already laid before the Court; and, thirdly, by reason of the petitioner's want of intention to contract a marriage, and of her ignorance of the effect of the ceremony, as shewn by the evidence before the Court. The amended petition has been duly served upon the respondent, and I, moreover, thought it right that her Majesty's Proctor should be requested to intervene in this case; and I have reheard it, with the advantage of an able argument of Mr. Willis, who represented the Queen's Proctor.

At the time of the marriage the wife was of the age of fourteen years and five months, and the husband of the age of sixteen years. Their parents, who dame to this country in 1858, were Portuguese subjects, and had not, in my judgment, looking to all the circumstances of the case, lost their original Portuguese domicile. The parties to the marriage were first cousins. The father of the lady was insane. The marriage was promoted by her mother and by her uncle, the father of her husband. It was presumed, erroneously as it turned out, that the marriage would have the effect of relieving the commercial property of the insane father from certain pecuniary embarrassments. The girl most reluctantly consented to the marriage, yielding at last to the entreaties of her mother, and the assurances that the marriage, being contracted before a civil officer in England, and being illegal by reason of consanguinity in Portugal, would have no binding effect. The marriage was never consummated, and the parties lived exactly in the same relations and without any change of name, or any cohabitation whatever, as they had done before the marriage was contracted. The mother returned to Portugal towards the end of the year 1872, and was joined by her daughter in January, 1873, who is now dwelling in her parents' house in Lisbon.

Looking at all these circumstances, I think it is not improper to say that this is a marriage which the Court would not be reluctant to pronounce invalid, but I must be on my guard against

taking any other view than a strictly legal one of the unfortunate relationship in which these parties have been placed by their own acts. The boy and girl were both of marriageable age by the law of this country, and, I believe, also by that of Portugal. I am satisfied on the evidence that the marriage was not brought about by what the law would consider coercion of the girl's mother or her relations; and that she perfectly understood that she was about to contract a marriage appears from the great reluctance and distress with which she alleges she consented to it; nor can it vitiate the contract that she had an erroneous view of its future consequences. It cannot, therefore, be set aside on the ground of incapacity of age or coercion or fraud, and this, I may say, was at the last hearing admitted by her counsel.

There remains a very serious question, and one in some measure prim¾ impressionis, namely, whether the marriage can be pronounced invalid in foro contractžs, that is, in an English Court by reason of its being treated by the law of the domicile of the parties as void on the ground of their consanguinity. The Portuguese advocate who has been examined says that the marriage was null and void, because, according to the laws in force in Portugal at the time of the said marriage and now, first cousins are incapable of contracting marriage on account of consanguinity, and any such marriage is holden by the said law of Portugal to be incestuous, and therefore, that the petitioner and respondent were incapable of contracting a valid marriage, whether in Portugal or elsewhere. I must add to this statement of the law that which is a matter publici juris (so to speak), namely, that marriages between first cousins in Roman Catholic countries are capable of being, and not unfrequently are, rendered valid by a papal or episcopal dispensation. This marriage cannot be pronounced invalid because it is incestuous according to the general law of Christendom; it is not a marriage between persons in the direct lineal line of consanguinity, or in the collateral line within the degree of brother and sister, both which classes of marriage are by the usage and practice of Christian states, and the general current of Christian law and authority, considered as incestuous, unnatural, and destructive of civilized life (Story, Conflict of Laws, § 114), and so considered by laws "qu¾ humano generi universo sunt dat¾" (Grotius de

Bello et Pace, l. 2, c. 5, s. 13, § 2). I must also bear in mind the observations of Lord Cranworth in Brook v. Brook.(1) The prohibition of marriage between first cousins cannot be put upon this basis, or upon higher ground than that of a prohibition by the positive law of the country of the domicile. The objection of consanguinity in this case, being removable by a papal or episcopal dispensation, is of the nature of what the canonists call an impedimentum impeditivum, and not an impedimentum dirimens.

I have considered all the judgments which have been given in this country upon the much vexed subject of foreign marriages. The decided cases establish the doctrine that the Court of the domicile recognizes certain incapacities, affixed by the law of the domicile, as invalidating a marriage between parties belonging to that domicile in a foreign state in which such marriage is lawful. But the decided cases do not establish the converse doctrine that the Court of the place of the contract of marriage is bound to recognize the incapacities affixed by the law of the domicile on the parties to the contract, when those incapacities do not exist according to the lex loci contractžs. It may appear that according to the jus gentium the latter proposition is a consequence of the former; and I remember addressing such an argument to the full Court of Divorce in the case of Simonin v. Mallac(2), but in vain. In that case the parties were French subjects, and came to England for the purpose of evading the French law, and having been married by licence, returned to Paris the day after the marriage. A French tribunal pronounced a decree of nullity against the marriage, on the ground that it had been celebrated without the consent of parents, and without the precedent publications required by the code. Application was made to the English Court to pronounce a decree of nullity on the ground of the incapacity of the parties according to the law of their origin and domicile, and this appeared to me to be a case in which the English tribunal, according to the jus gentium, ought to respect the French law, and also pronounce a decree of nullity, but it refused to do so in a very elaborate and careful judgment delivered by Sir C. Cresswell on behalf of the full Court. It was a case prim¾ impressionis. The Court said (p. 80), "It is very remarkable that neither in the

(1) 9 H. L. C. 226.

(2) 2 Sw. & Tr. 67; 29 L. J. (P. M. & A.) 97.

writings of jurists, nor in the arguments of counsel, nor in the judgments delivered in the courts of justice, is any case quoted or suggestion offered to establish the propositon that the tribunals of a country where a marriage has been solemnized in conformity with the laws of that country should hold it void, because the parties to the contract were the domiciled subjects of another country where such a marriage would not be allowed. No such argument has been advanced even in the case of marriages deemed to be incestuous." It was, I think, not quite correct to say "that no suggestion was offered," but in other respects the statement is perfectly accurate. The Court then relied a good deal upon the authority of Huber (Pr¾lectiones Juris Civilis, lib. i. tit. 3 De conflictu legum) for the general law that marriages valid according to the lex loci contractžs are valid everywhere, though the same writer (as they were aware, for they cited the passage) excepted from the operation of this principle incestuous marriages, and marriages by minors, and thought that other nations ought to refuse to acknowledge the validity of such marriages. "Multoque magis statuendum est, eos contrˆ jus gentium facere videri, qui civibus alieni imperii su‰ facilitate jus patri¾ legibus contrarium scientes volentes impertiuntur."

It is true that in that case the objection to the marriage was of a very different character from what is presented in the case before me, and that Lord Campbell, when the case of Brook v. Brook(1) was argued before the House of Lords, dwelt strongly on the fact that the objections in Simonin v. Mallac(2), derived from the French law, related to matters of form. After mentioning the facts of the case, that learned lord said: "Sir C. Cresswell, after the case had been learnedly argued on both sides, discharged the petition. But was there here anything inconsistent with the opinion which the same learned judge delivered as assessor to Vice-Chancellor Stuart in Brook v. Brook(3)? Nothing whatever, for the objection to the validity of the marriage in England was merely that the forms prescribed by the Code NapolŽon for the celebration of a marriage in France had not been observed. But there was no law of France, where the parties were domiciled,

(1) 9 H. L. C. 217.

(2) 2 Sw. & Tr. 67; 29 L. J. (P. M. & A.) 97.

(3) 3 Sm. & G. 481.

forbidding a conjugal union between them, and if the proper forms of celebration had been observed, the marriage, by the law of France, would have been unimpeachable. The case, therefore, comes into the same category as Compton v. Bearcroft(1) and Steele v. Braddell, decided by Dr. Radcliffe.(2) None of those cases can shew the validity of a marriage which the law of the domicile of the parties condemns as incestuous, and which could not by any forms or consents have been rendered valid in the country in which the parties were domiciled." These are certainly strong dicta from a high authority, from which an inference might be drawn that in the case of a marriage incestuous by the laws of the domicile, the Court of the loci contractžs might, in the opinion of Lord Campbell, be justified in setting aside the marriage on the ground of the incapacity of the parties to contract it.

If this important question were not embarrassed by precedents of former decisions, and especially by the judgment on Simonin v. Mallac(3), I might have been inclined to hold that the jus gentium would require the lex fori, which is also the lex loci contractžs, to adopt for the occasion as its own law the lex domicilii, as in an analogous case, that of Dalrymple v. Dalrymple(4), Lord Stowell speaks of the law of England, withdrawing altogether and leaving the legal question to the exclusive judgment of the law of the foreign country. But having regard to the decisions upon this subject, and especially to that of Simonin v. Mallac(3), I do not think that sitting as a single judge in an English Court, I ought to pronounce this marriage contracted in England, and valid by English law, to be null, and I must decline to do so. I dismiss the petition.

Solicitors for petitioner: Tamplin, Taylor, & Joseph.

Solicitor for respondent: J. P. Poncione

(1) 2 Hagg. Cons. 444, n.

(2) Milw. Ir. Eccl. Reps. 21.

(3) 2 Sw. & Tr. 67; 29 L. J. (P. M. & A.) 97.

(4) 2 Hagg. Cons. 54.