July 19851 NOTES OF CASES 465

a~signment:~will be the sum a landlord would have been willing to

pay for a voluntary surrender. The trust assets include not only the
lease, however, but also the statutory rights to security of tenure
and continuation of the lease.= Liability for breach of trust could
therefore also extend to future loss of profits. Where a bona fide
lessee simply wishes the tenancy to end, the application of the
principles enunciated in Sykes and Harris v. Black could lead to
injustice. Featherstone v. Staples indicates that continuing obligations
will not be imposed on such a lessee, but at the expense of a
potentially heavy pecuniary liability for breach of trust.
CHRISRODGERS*

THEINCIDENTAL QUESTION AND CAPACITY TO REMARRY

IN Lawrence v. Lawrence’ the wife had obtained a divorce from
her first husband in Nevada. The divorce was recognised as valid in
England under section 3 of the Recognition of Divorces and Legal
Separations Act 1971, both on the ground of the first husband’s
United States nationality (section 3(l)(b)) and on the ground that
Nevada uses the concept of domicile as a ground of jurisdiction,
and the wife was domiciled in Nevada at the institution of the
proceedings within the meaning of Nevada law (section 3(2)). The
wife was however domiciled in Brazil according to English law.
The day after the Nevada decree the wife married the second
husband in Nevada. He was domiciled in England, and after a
brief stay in the United States they set up their matrimonial home
in England in accordance with their agreed plans.
The wife petitioned in England for a decree of nullity in respect
of this second marriage. She claimed that it was void because,
although the Nevada divorce was recognised in England, her
capacity to remarry was governed by the law of Brazil, her
antenuptial domicile, and by that law the Nevada divorce was not
valid. It will be seen that, as so often in bigamy cases in the
conflict of laws, an incidental question arose. If the wife’s capacity
to marry was governed by the law of Brazil as the law of her
domicile, and by the law of Brazil she had that capacity only if she
was single, which country’s rules for the recognition of divorces
were to be applied in deciding whether she was single: those of the
lex cawae (Brazilian law) or of the lex fori (English law)? There
was authority that the lex camae should determine the validity of
the divorce, principally R. v. Brennvood Superintendent Registrar
See s.17 Agricultural (Miscellaneous Provisions) Act 1976.
This was accepted, arguendo, by Slade L.J. in Harris v. Black (1984) 46 P. & C.R.
366,372.
Lecturer in Law, University College of Wales, Aberystwyth.
[1985] 1 All E.R. 506 (Fam.D.); The Times, 27th March 1985 (C.A.). Transcripts of
the Court of Appeal judgments were kindly made available by Messrs. Gamlens,
Solicitors.
466 THE MODERN LAW REVIEW [Vol. 48
of Marriages,2 but also Padolecchia v. Padolecchia3 (in which
however the result would have been the same if the English
recognition rules had been applied) and the Canadian case of
Schwebel v. Ungar4 (approved in Padolecchia), dealing with the
converse case where the divorce is recognised by the lex causae but
not by the forum. On the other hand in Perrini v. Perrit~i,~ where a
nullity decree was not recognised by the lex causae but was
recognised in England, it was held, without reference to these
earlier cases, that the remarriage was valid.
In the present case, in the High Court,6 Anthony Lincoln J. was
attracted by the view that if a divorce is recognised under an
English statute, the consequence must be that the parties are free
to remarry (i.e. the incidental question is governed by the lex fori),
but “case law and the divided opinion of academic lawyers rule out
such simple solutions.” On the basis that the validity of the divorce
was determined by the lex causae, the judge was however able to
hold the remarriage valid, for he held that the validity of the
remarriage was governed, not by the laws of the antenuptial
domiciles of each of the parties, but by the law of the intended
matrimonial home, which was England. Thus English law was the
lex causae as well as the lex fori, and by English law the Nevada
divorce was valid.
The decision was upheld on appeal, but not on the same
reasoning. Ackner L.J. held quite simply that since the English
courts were required to recognise the validity of the Nevada
divorce, it must follow that the remarriage was valid. “The essential
function of a decree of divorce is to dissolve the marriage hitherto
existing between the parties. I consider that it is plainly inconsistent
with recognising a divorce to say in the same breath that the
marriage which it purported to dissolve still continues in existence.”
It was thus not necessary to decide which law governed the wife’s
capacity to remarry; even if it was Brazilian law the marriage
would be valid, because in the eyes of the English court she was a
single woman. In other words, the incidental question is to be
decided by the lex fori. Sir David Cairns took a similar view, but
Purchas L.J. followed quite a different line, which will be mentioned
below.
It will be a cause for satisfaction if Lawrence v. Lawrence is
taken as establishing that when a divorce or nullity decree is
recognised in England a subsequent remarriage must never be held
invalid on the ground that the divorce is not recognised by some
other law. That is what is recommended by the Law Comrni~sion,~

622, (1964) 48 D.L.R. (2d) 644.

1979 Fam. 84.
119853 1 All E.R. 506.
’ Report on Recognition of Foreign Nullity Decrees and Related Matters, Law Com.
No. 137, para. 6.56.
July 19851 NOTES OF CASES 467
and indeed seems to follow from Lawrence. There is a slight doubt
however, owing to the failure of the members of the Court of
Appeal explicitly to hold that R. v. Brentwood Superintendent
Registrar of MarriagesEwas overruled.
In that case the husband, an Italian national domiciled in
Switzerland, and his first wife were divorced in Switzerland. He
wished to marry again in England. Even though the Swiss divorce,
having been granted by the court of the domicile, was recognised
in England, the registrar refused to issue a certificate on the
ground that the husband lacked capacity. The Divisional Court
refused an order of mandamus to compel the registrar to issue a
certificate. The reason was that the husband’s capacity to marry
was governed by the law of his domicile, Swiss law; by Swiss law
his capacity to marry was governed by the law of his nationality,
Italian law; by Italian law he lacked capacity because the Swiss
divorce was not recognised in Italy. The Divisional Court, it will be
seen, decided the incidental question of the recognition of the
Swiss divorce by the conflict rules of the lex causae, Italian law.
The husband could not remarry even though he was, in English
eyes, single.
Section 7 of the Recognition of Divorces and Legal Separations
Act 1971 changed the law as laid down in the Brentwood Registrar
case by providing that where a divorce is entitled to recognition,
neither party shall be precluded from remarrying in the United
Kingdom on the ground that the validity of the divorce would not
be recognised in any other country. This would alter the actual
decision in the Brenhvood case, but leaves the principle on which it
was decided applicable if the remarriage takes place outside the
United Kingdom, as occurred in Lawrence, in which the wife
remarried in Nevada.
Has Brentwood then been overruled by Lawrence? The Court of
Appeal did not actually say it had been, or that it was wrong. Sir
David Cairns said that the normal assumption is that once a
divorce has taken place and can be recognised, the former spouses
can remarry. The Brentwood case was the one exception, “where
very unusual evidence led to a different conclusion.” But why
should Brenhvood have been an exception? The only possible
reason to be gleaned from Sir David Cairns’s judgment is that “In
section 3 [of the 1971 Act] I find it impossible to suppose that the
words ‘the validity of an overseas divorce shall be recognised’ do
not mean that the divorce is to be recognised as dissolving the
marriage so that the former husband and wife can marry again.” In
the Brentwood case, before the 1971 Act, the Swiss divorce was
recognised at common law, so that there was no statute whose
words had to be understood as meaning that the former spouses
could marry again. But this would be an entirely artificial and
[1968]2 Q.B. 956.
468 THE MODERN LAW REVIEW [Vol. 48
irrational distinction. Moreover, the common law grounds of
recognition applicable in Brentwood have now become statutory
under section 6 of the 1971 Act, although admittedly still termed
“the common law rules.”
Ackner L.J., although he referred to the Brentwood case, did
not express disapproval of it; nevertheless his judgment can only
be read as overruling it, as will be seen from the passage from his
judgment quoted above. He went on to say, “. . . any incapacity
said to be due to a pre-existing marriage cannot be relevant where
the validity of the divorce dissolving such a marriage has to be
recognised under the Act.” It must be remembered that today all
divorce recognition is by virtue of the Act. Moreover, Ackner
L.J.’s approval of Perrini extends the principle he lays down to
remarriage after a recognised nullity decree as well, even though
the recognition of nullity decrees is not yet statutory.
Purchas L.J. decided the case on quite different, and, it is
submitted, less acceptable lines. His approach was that the validity
of a divorce for the purpose of a remarriage was to be determined
by the law which governs the capacity to marry, i.e. the Brentwood
approach. In the present case, while it was true that by English law
the wife was domiciled in Brazil at the time of the marriage, yet
under section 3(2) of the 1971 Act the Nevada divorce had to be
recognised because by Nevada law the wife was domiciled in
Nevada at the institution of the proceedings. It should follow that
she should also be regarded as domiciled in Nevada, not Brazil, for
the purposes of the validity of the remarriage. But this is simply
not what section 3(2) says. It does not even say, or have the effect,
that the party is to be deemed domiciled in the foreign country for
the purpose of recognising the divorce. It only says that domicile in
the foreign sense is to be treated as habitual residence. Moreover,
why should the remarriage be valid if the divorce qualifies for
recognition under section 3(2), but not where it is recognised on
the grounds that a party was a national of, or habitually resident
in, the foreign country? And what if the wife had remarried after
ceasing to be domiciled in Nevada in that country’s sense? Here
Purchas L.J. brought in the question whether the lex loci
celebrutionis recognised the Nevada divorce. Why that law should
come into the picture in addition to the law of the domicile is not
explained. In these views Purchas L.J. was in a minority. But if the
judgment of Sir David Cairns were also to be taken as not
overruling Brentwood, the law would be in a sad state of confusion,
leaving it open to argument that if the divorce was recognised
under section 6, but not section 3, of the 1971 Act, and the
remarriage celebrated abroad, or if the remarriage was after a
nullity decree, then the Brentwood rule still applies (Perrini being
treated as decided under the rule in Sottornayor v. de Burros (No.
2),9 that a marriage celebrated in England, one spouse being
(1879) 5 P.D. 94.
July 19851 NOTES OF CASES 469

domiciled in England, is to be governed exclusively by English

lawlo). It is submitted however that Lawrence does overrule
Brentwood, and that the rule now is that where a divorce or
annulment is recognised in England, a remarriage is never to be
held invalid on the ground that the decree is not recognised in
some other country. Any lingering doubts should be removed by
enacting the Law Commission’s recommendations referred to
above.
This leaves the converse case to that which arose in Lawrence:
where the divorce or annulment is not recognised by the lex fori
but is recognised by the law of the domicile of the remarrying
spouse. In such a case the Canadian court in Schwebel v. Ilngar”
refused to grant a nullity decree in respect of the second marriage,
i.e. the incidental question of the validity of the divorce was
referred to the Zex causae. While it does not necessarily follow
from Lawrence that in such a case the remarriage should be held
invalid, and though the Law Commission refrained from making a
recommendation on these lines,’* it is submitted that here also the
incidental question must be decided by the forum’s conflict rules.
The approach in Schwebel produces the absurdity that a party is
married monogamously to two spouses at the same time.
Yet another kind of incidental question could arise in a case of
remarriage. The first marriage may not have been dissolved or
annulled, but may be void ab initio under English conflict rules,
while valid or merely voidable under the conflict rules of the law
governing the capacity to remarry, or vice versa. Again, to avoid
the consequence of a single person being held unable to marry, or
a married person being held able to contract a second monogamous
marriage, the incidental question of the validity of the first marriage
must be decided by the conflict rules of the forum.
It will be observed that if in these remarriage cases the incidental
question of the recognition or annulment of the earlier marriage,
or its validity, is to be determined by the lex fori, then no choice of
law rule is needed for the issue of capacity to remarry: all relevant
laws agree that a person only has capacity to marry if single, and
the conflict rules of the forum determine whether he is single.
Nevertheless the point was canvassed in Lawrence as to whether
the dual domicile or the intended matrimonial home rule is the
correct one. As mentioned above, the trial judge decided the case
on the basis that the wife’s capacity to remarry should be governed
by English law, not the law of Brazil, which was her antenuptial
domicile. He said,13
“My examination of these authorities persuades me that while
the dual domicile test has been applied over and over again,
lo 1979 C.L.J. 289.
l1 119631 42 D.L.R. (2d)622,(1964) 48 D.L.R. (2d) 644.
l2 Law Corn. No. 137, para. 6.60.
” [1985]1 All E.R. 506, 511-512.
470 THE MODERN LAW REVIEW [Vol. 48
there is no case relating to a foreign divorce and subsequent
marriage in which the Courts have been confronted wlth a
choice between the competing doctrines - dual domicile or
intended matrimonial domicile (I use this latter phrase to refer
to the law of the country with which the marriage has the
most real and substantial connection) . . ,
I consider it desirable that contracts of marriage entered into
in circumstances such as occurred in the instant case (where
the domiciles become English) should be upheld rather than
destroyed. If the application of the criterion of real and
substantial connection results in the marriage being held valid
and the application of the dual domicile criterion results in
invalidation, in my view the former should prevail. I leave
o en the question whether the vice versa proposition should
f
a s o hold good. Nor is it necessary to resolve the question
whether, where the intended domicile is other than that of
England, the criterion should apply, though I see no grounds
for such chauvinistic distinctions.”
In the Court of Appeal Ackner L.J.’s approach did not require
him to choose between the two doctrines; nor did that of Sir David
Cairns, though he said that his own inclination would be that
whichever doctrine would uphold the marriage should be applicable.
Purchas L.J. left the matter open.
These indications of support for the intended matrimonial home
doctrine by Lincoln J. and Sir David Cairns are to be welcomed.
They follow on the application of that doctrine by Cumming-Bruce
J. in Radwan v. Radwan (No. 2)14 and the dicta of Lord Simon in
Vervaeke v. Smith,15 which were relied on by Lincoln J. in
Lawrence. In the latter case Lord Simon suggested that the law of
the country of closest connection, which normally will be the
intended matrimonial home, should govern issues of “quintessential
validity,” where the problem is which country’s public policy ought
to apply. This would presumably extend to polygamy and prohibited
degrees of relationship, where the invalidity is imposed in the
public interest, but not lack of age, absence of consent or physical
incapacity, where the invalidity is imposed in the interests of a
party. In Vervaeke v. Smith itself the issue was the validity of a
sham marriage, which Lord Simon regarded as one of “quintessen-
tial” validity rather than consent, for the question was whether,
given the common intentions of the parties as to the nature of the
marriage, the marriage was valid, a question to which English and
Belgian public policy gave different answers.
It will have been noticed that Lincoln J. left open the possibility
that if the marriage is invalid by the law of the intended matrimonial
home, it may still be held valid if it is so on the dual domicile rule,
while Sir David Cairns in the Court of Appeal suggested that
whichever rule validated the marriage should be applied. It is
*‘1973 Fam. 35.
Is 119831 1 A.C. 145, 166.
July 19851 NOTES OF CASES 471
suggested that this approach is the best one. There is no reason to
hold a marriage void on the grounds of polygamy, prohibited
degrees of relationship or other defect based on public policy if it
is valid by the law of the country where the parties settle after the
marriage; but even if it is invalid by the law of that country,
the parties' expectation, that their marriage, unobjectionable by the
standards of their own community, will be legally effective should
be upheld.I6 Moreover, this approach will help to avoid the
uncertainty, referred to by Purchas L.J., that arises on a pure
intended matrimonial home doctrine where no matrimonial home
is established. If the marriage is not valid by the law of each
party's antenuptial domicile than it will be invalid unless it is valid
by the law of the country in which the parties have set up their first
matrimonial home within a reasonable time of the marriage."
A. J. E. JAFFEY*
l6 Jaffey, (1978)41 M.L.R. 38,40; (1982)2 O.J.L.S. 368,381.
" (1978) 41 M.L.R. 38, 41-43.
Senior Lecturer in Law,University of Exeter.