Report' on Recognition of Foreign Divorces [Chapter i'. One possible mode of implementing our recommendations would be to amend each of those enactments. Obviously, this is not a very convenient course. Also, it is open to certain theoretical and practical objections. Indian Evidence Act , to which we have already adverted. Besides, they are procedural. In our opinion, therefore, the appropriate course will be separate and self-contained legislation. We have referred above' to certain theoretical and practical objections which could be raised to the device of merely amending the various enactments dealing with the marriages of persons belonging tovarious communities.
The decrees could even relate to persons professing no religion. Secondly, those decrees would, even in the case of persons married under Indian legislation, have been passed, not necessarily on the grounds referred to in the relevant Indian legislation, but on grounds which are regarded as adrnissible under the law applied by the foreign Courts, whose.
Even where the parties were domiciled in India when they were marrie , it is not inconceivable that a foreign Courtmay dissolve a. In doing so, foreign Court. In this position, addition of the proposed provisions for recognition to the Hindu Marriage Act or other comparable law, would not be a very appropriate method of dealing with the subject. The parties who have obtained the divorce in the foreign country, might be domiciled in India or not so domiciled. Their marriage might have taken place in India, or it might have taken place outside India but under an Indian enactment, or it might have been celebrated outside India but not under an Indian enactment.
Obviously, the problems arising out of all these various per- mutations and combinations can be better dealt with by separate enactrnent. Having dealt with the proper legislative device to be adopted to imple- ment our recommendations, we proceed to advert to one fundamental question which is to be considered, namely, what ought to be the general approach in such matters '? It is easy to say that a limping marriage must be avoided. But we venture to suggest that this proposition cannot be raised to the status of a dogma. There must be cases where one of the parties to the marriage may, for legitimate reasons, like the marriage to survive and the foreign divorce to be disregarded.
A familiar example is the case where the divorce was granted by 'the foreign court without giving a hearing to the opposite party. There could be other comparable situations also. There are a number of cases where justice to the opposite party [the party who was the respondent in the divorce proceedings in the foreign court , requires that the matter adjudicated upon by the foreign court should be considered again.
The fundamental aspect to be considered. The range of choice is a wide one. Between the extremes of no recogni- tion of divorce on the one hand, and the recognition of every divorce on the other. At a time when, as a matter of internal law, divorce was severely restricted, it was natural that a simi- larly guarded view should be taken with respect to jurisdiction for divorce and the recognition of foreign divorces. Wilson, U LR. Report on Re'c'ogm'tiou of Foreign Dr'vo.
An honest adherence to this principle, moreover, will preclude the scandal which arises when a man and a Woman are held to be man and wife in one country, and strangers in another. As Wolff observes,' it is impossible to recognise all judgments of all courts in any country all over the world, despite its manifest advantages, as the disad- vantages are equally manifest in so unrestricted a recognition:. Further, even where there is no danger of any kind of corruption of courts, dilferences between two countries in their fundamental attitude to questions of morality or public policy, must often make the recognition of some individual judgments seem undesirable.
Finally, general recognition might result in grave injustice where the same relationship was regarded differently by the courts of two countries as in cases of marriage, divorce, inheritance.
Cardozo, in his Paradoxes of Legal Science, dealt with the problems of rest and motion, stability and change. Ultimately, the rules relating to- conflict of laws have to be examined from the point of view of justice and the broader consideration of social policy which conflicting laws may evoke. These rules are often mistaken to he rules of inter- national law, but, in reality, they do not belong to the domain of the "law of nations".
Their subject-matter is "international" only in the sense that they involve relations.
But they are not administered by international tribunals. They do not draw their content from the traditional sources of international law. Essentially, conflict rules originate in each individual legal system. Wishwcmnthan, A.
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Because several legal systems co-exist, it becomes necessary to deter- mine their applicability. One of the great American judges, Learned Hand, has repeatedly. Miller, Judge Learned Hand. A foreign sovereign under civilized law imposed an obligation of its own as nearly homologous as possible to that arising in the place where the tort occurs. In order that the problem of recognition may suitably- dealt with in the light of the general observations made above.
The problem of recognition is, in its essence. We shal1'haveioccasi'o'11I to deal also with extra-judicial divorces obtained in foreign coiintriesbut. But it may be stated that because of the increase'-'in' mobility of individuals. Rockne MQi0?. F' OD ' ' , e Siegrrtan v. Rm Tinro Co.
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Page This is what Vattel W-rote. Da5 Intern,sale Zixfilprozessecht auf "Ci-und; der. Hilrorl V.
Grrynf,  I59 3. I 35 Can. Bar Rev.. The problem of confiict is inherent in the coexistence of more than one-legal order. Where the matter is res' intern, the inquiry is as to which.
Will my U.S. divorce be recognized overseas?
Where, however, there is already a judgment of a foreign court, this inquiry must be supplemented by an inquiry as to whether the foreign jtttigntenr should be recognised; and, if so, to what extent and in What respects and subject to what conditions-substantive or procedural. In a Catcuita case'. Rankin 1. All countries do not take the same view of inter-. But the view of international law which obtains in England in these Courts is that the power to grant divorce rests with the Court of the country in which the parties are domiciled at the date of the petition.
Other countries may take different views of international law in that respect. But it is well settled now that that is the view upon which the English law proceeds and that view. Besides being. Breen" was whether an Irish court would recognise an English decree of divorce. The husband stated that his previous marriage had been dissolved by the High Court, he being domiciled in England at all material times. The wife's reply to that was that English decree was not recognised by the law in Eire, and consequently the marriage in was bigamous.
Gucieriarz, A, I. Report on Recognfrioit of Foreign Divorces Chapter!. The wife was well aware of the husbapd's earlier marriage and of its dissolu- tion in England. The latter. Accordingly, he found that the law of Eire recognised the validity of the decree of dissolution pronounced by the English court dissolving the marriage between the husband and his first wife.
Mayfietdi the husband. After the German court had granted him a divorce, he brought a petition in the English courts for a declarrarion that the German decree was valid and should be recog- nised in English law. We are not concerned with the actual decision in the case. For understanding' the effect of recognition, it is desirable to refer to a few theoretical aspects thereof. Jftjgyg-Pgrroft V. Ma3'o-Parrot: I.