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must be the issue of a marriage which would have been lawful had it been solemnised in the country where the land lies.
As a matter of practical administration, going from these general principles to the manner in which it is practically administered by the fiscal departments in England, as far as personalty is concerned the marriage is considered good; as far as realty is concerned the marriage is considered bad.
The President: There is no doubt that the marriage is valid for all purposes, except that as regards the inheritance the lex loci prevails. In our debates both the Attorney-Generals have agreed to that.[1]
Mr. Downer: It is so, and yet it would have been very much more satisfactory had it been so decided. It is quite true that as far as the judgments are concerned we have got Sir Cresswell Creswell and Lord Wensleydale, certainly both eminent judges, who said that the marriage would have been void to all intents and purposes, though the parties had been domiciled in the country where the marriage was lawful. On the other hand we have the judicial opinions of Lord Campbell and Lord Cranworth in the opposite direction, and certainly we have the opinions of many eminent lawyers given since in the same direction. But as far as any judicial decision has been
given upon the subject, it left the matter in a very unsatisfactory state, and it left the judges practically equally divided in opinion.[2] So I say, even from that point of
- ↑ Not however, without considerable hesitation on the part of Sir Henry James.
- ↑ As, for example, it was maintained by Lord Justice Lush, concurring with the Master of the Rolls, in the celebrated case of Goodman’s Trusts, that personalty is governed by the law of the domicile of the owner of the effects and not that of the beneficiaries.
