EUGENE RERTHIAUME Vs. DAME ANNE-MARIE YVONNE DASTOUS

JUDGEMENT

(1.) In 1913 the respondent, a French Canadian of the Roman Catholic faith, being then a girl 19 years of age who had just graduated from a convent in a small town in Montreal, went on a trip to Europe with her father. She there met the appellant, a member of a Quebec family and also of the Roman Catholic faith, who had been living in Paris for several years. He proposed marriage to her, and she accepted. The appellant asked the respondent to make the necessary arrangements, and she called on the cure of the parish where her fiance had been residing and where she was then temporarily residing. The cure informed her that there were certain civil formalities to be gone through and that he would celebrate the marriage. She asked her fiance to attend to the civil formalities and he took her to the British Consulate where certain papers were signed and a certificate issued which was given to her fiance. After that the parties proceeded to the Church, the certificate was handed to the cure who then proceeded to celebrate the marriage according to the form of the Roman Catholic Church. The parties lived together as husband and wife until the year 1926, when on returning from an absence from home the respondent discovered that the appellant had been guilty of infidelity and had introduced a mistress into their home. The respondent then applied to the Court in Paris for a divorce. That Court before proceeding further demanded the exhibition of a civil certificate of marriage. This the respondent was unable to produce. She discovered that the certificate which her fiance had procured at the British Consulate was only a notice of intended marriage, and that the officiating cure had carelessly omitted to notice that it was not a certificate of marriage.

(2.) As a matter of fact he had exposed himself to severe penalty by celebrating the religious ceremony without the pro-Suction of a certificate. As no certificate of marriage could be produced- none such ever having been in existence-the Court declined to proceed with the case for divorce. The respondent then raised another action in the French Courts, craving and judgment "pour faire statuer le marriage,"and craving alternatively that if the marriage was declared void it should be held that she had contracted it in good faith and was entitled to a declaration of civil effects in her favour. The appellant appeared and denied the jurisdiction, he having still retained his Canadian domicil. This plea was sustained and the action dismissed. The respondent then raised the present action in the superior Court of the Montreal district. The action sought a declaration of marriage, decree of separation, a dissolution of the communaute des biens-the marriage having been without a marriage contract, communaute des biens would ensue -and a judgment for alimony. Damages were also claimed but that claim was departed from. Alternatively a declaration was sought that as the respondent had been in good faith, the marriage was a putative marriage and in terms of Art. 164, Civil P. C. civil effects. The case depended before Loranger J. who held the marriage valid pronounced a decree of separation, dissolved the community of goods and granted a decree against the appellant for an alimentary allowance of $1,500 a month. On appeal the Court of King's Bench by a majority upheld the judgment. Bernier, J., dissented and held that the marriage was null and that a null marriage could not be a putative marriage. The present appeal is from that judgment.

(3.) Their Lordships are unable to agree with the judgment under appeal. If there is one question better settled than any other in international law, it is that as regards marriage-putting aside the question of capacity-locus regit actum; if a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the proceeding or ceremony which constituted marriage according to the law of the place would not constitute marriage in country of the domicile of one or other of the spouses. If the so called marriage is! no marriage in the place where it is celebrated, there is no marriage any-where, although the ceremony or proceeding if conducted in the place of the parties domicile would be considered a good marriage. These propositions are too well fixed to need much quotations. They were laid down long ago in England in the well known case of Dalrymple V/s. Dalrymple, 2 Hag Con 54 and in Scrimshire V/s. Scrimshire, 2 Hag Con 395, approved by Lord Stowell in Ruding V/s. Smith, 2 Hag Con 371 at p. 393. A question precisely the same as the present had been decided in Scotland in the case of Johnstone V/s. Godet, [1813] Ferg Con Law Rep 8, mentioned by Lord Fraser in his work on Husband and Wife, Vol. 2, p. 1310, where the parties had undergone a ceremony of marriage in Martinique, where the Code Napoleon prevailed. This marriage, if it had taken place in Scotland, would have been good. But there was no civil ceremony and the marriage was bad under the Code; and it was held no marriage in Scotland.