Matrimonial Causes Act 1857

The domicile of the wives

Le Mesurier v Le Mesurier

Either party domiciled in UK at the time petition was presented or habitually resident in England
for a period of one year

Grant maintenance or financial relief – ancillary order.

Court outside granted divorce – Court in UK can grant financial relief.

Dampierre – Court in France – English Court may stay English proceedings

S v S – Swedish woman married an American man in London – Prenup such that law in NY
would apply

Indian Law

HMA, PMDA, DA, Muhammadan Law

Foreign Marriage Act, 1969

Matrimonial Relief

If parties residing within jurisdiction prior to the presentation of the petition, together for the last
time in India and at the time of presenting the petition, one of the parties was residing in India

Foreign Judgments – Hague Convention on the Recognition and Enforcement of Divorce and
Legal Separation, 1970

Art 1 – Contracting states reciprocal arrangement.

Contrary to public policy

Armitage v Attorney General: A decree recognized by Courts in the country where they are
domiciled will be valid in England.

Indyka v Indyka: HL held that decree would be recognized if pronounced by a court which has a
real and substantive connection

Messina v Smith: A decree which is recognized by a country which has a real and substantive
connection
English Act 1971 – Hague Convention Statute

Family Law Act 1986

1986 Act – divorces by judicial or other proceedings - Extra Judicial Divorce – Ghet, Talaq
(Quazi v Quazi); Chaudhry v Chaudhry – extra judicial means had to have formal recognition –
cant be unilateral declaration – can’t be contrary to public policy

Grounds

Forum granting divorce must have followed the principles of natural justice.

Against public policy.

Decree obtained by fraudulent means.

MCAlpine v McAlpine

Middleton v Middleton

Narasimha Rao v Venkat Lakshmi

Satya v Teja Singh – Obtained by fraud not valid

Morris

Setalvad – Marriage
Legitimacy

UK Law

Domiciled in England/Habitually resident in England for 1 year – Application for Legitimacy

A child is presumed to be legitimate if s/he is born anywhere in the world out of a lawful
marriage.

A child conceived before marriage is presumed to be legitimate if the child is born after the
marriage.

A child conceived before a divorce and born after

Presumption of Legitimacy

Francis v Francis: Evidence that the husband had used contraceptives during sexual intercourse
when the marriage subsisted. Court did not accept. Presumption in favour of children strong.

Children born out of artificial insemination:

Child is legitimate even if the father’s donor. Father must have consented; otherwise child
illegitimate.

J v C: Woman married to a transsexual man – heterosexual couple – only artificial insemination

legitimacy

Valid marriage is presumed if the parents had gone through a procedure of marriage

A child not born out of a lawful wedlock, such a child would be recognized as a legitimate child
in England only if recognized as a legitimate child according to the lex loci domicili of both the
parents. (at the time of the birth of the child)

Children born out of polygamous marriages: lex loci domicile of parents

Children of a void marriage: Either of parents bons fidely believed

Legitimacy act of 1976

Where there is not distinction – Australia, new Zealand

Legitimation

Ex post marriage (i.e. when the parents get married subsequently)

Skottowe v Young

Paternal acknowledgment. (only if permissible under his lex loci domicile at the time of the birth
of the child and at the time of legitimation)

Adoption Act 1926, 1976

English court will have jurisdiction only if the applicant is residing in any part of the UK and
child must be in England.

Re W(an infant)

Hague Convention 1993 – inter-country adoption: only those adoptions that create a permanent
child-parent relationship.

In re S (an infant) – divorce and custody proceedings pending in Scotland

Foreign Court – appoint guardian – child is a national of that country/ordinarily

resident/domiciled/present

Stuart v Bute

Nugent v Vetzera
English Position

Whether property or associated rights are movable or immovable is determined by lex situs.

Chatfield v Berchtoldt

Duncan v Lawson - Right to proceeds to an immovable property

Determination of Situs – Location of the immovable property or the movable property is the situs
except ships and aircrafts. The port or country under which the vessel is registered is the situs of
the vessel.

Embricos v Anglo Austrian Bank

A cheque – originally in England – moved to Austria w/o owner’s consent.

Winkworth v Christy, Manson & Woods Ltd. – A few artwork – under Italian Law – situs is Italy
– person who purchased it had good title.

Situs of Debts

The situs of a debt is where the debtor resides. Payne v R. If the debtor is a company – principal
place of business. If there are more places, then according to the contract (NY LI Co. v Public
Trustee)

Clare & Co v Nesdner Bank – Place where the account was opened/debt became repayable.

Negotiable Instruments & Securities transferrable by delivery – where the instrument is located.
Wynan v Attorney General

Shares in a company – where the shareholder can effectively deal with the share – Brassard v
Smith

Interest in the estate of a deceased person – where the administrator resides. (Attorney General v
Lord Sudely)

Intangible Property (including IPR) – Situs is where it is issued. Coin Controls Ltd v Suzo
International Private Ltd.

Indian Position

Definitions of Property – Gen Clauses Act – Except grass, growing timber and crops (because
they could be removed)

Labh Singh v State of Punjab – lex situs is where it is located.

Debt/actionable claim – where debtor resides (SBI v Dhamanti Ram)

Shares in a company – where it can be effectively dealt with by the company (Viswanath v Syed
Abdul Waji)

IP – India has different position – where the statute which gave the IP was enacted. (Blackwood
& Sons Ltd v A N Parasuram)

Contract for transfer of immovable property – Proper law of contract will apply – Launtry v
Lachapeke (Supreme Court of Canada) – Domiciled in Quebec, property in Ontario – Ontario
law did not grant immovable

Position in India

Capacity of persons is governed by lex situs – Nanchiyapa Chettiar v Muthu Kaluppa Chettiar

Transfer of tangible movable property

Lex situs governs – situs of the property at the time when the transaction takes place

Campbell v Sewell – Transfer took place in Norway. Valid in Norwegian Law. Person who
bought it had good title.

Winkworth v Christy, Manson & Woods Ltd. – A few artwork of the pf was stolen – under
Italian Law – situs is Italy – person who purchased it had good title.

 Must not be contrary to public policy.

 Must be bona fide purchase.

Transfer of intangible movable property

Actionable Claims/Debts – proper law of the contract of transfer

IPRs – lex situs.