FACTS:
The case of Simonin v. Mallac was the first jurisdictional issue before the new court.
The petitioner, a Frenchwoman, was living in Paris with her mother in 1853 when she met Leon Mallac, a Frenchman, who proposed marriage to her, which she accepted. The parties traveled to London in 1854 and were married legally there. Leon Mallac was twenty-nine years old, and the petitioner was twenty-two. Mallac’s father’s consent had not been acquired. They returned to Paris following the solemnization, but they never lived together again. In France, Mallac later declined to marry the petitioner. The wife petitioned the French court for a decree declaring the marriage null and void, which she received. She went on to live in England after that. Unsure of her legal standing in that country, she obtained a nullity ruling from an English court. The court concluded that it had jurisdiction over the case because the parties “mutually gave the right to have the force and effect of that contract determined by an English tribunal” by professing to enter into a contract in England.
The petition was then dismissed since the marriage was legal under English law. Although the contractual foundation for asserting jurisdiction over a nullity proceeding in which a void marriage is sought to be annulled has been criticized, the law remains intact. Even though the ceremony seems to be the parties’ only link to the forum, English courts will have jurisdiction.
ISSUES:
The case of Simonin v. Mallac was limited to problems of the legality of form, as the law of their home did not recognize the parties’ power to marry.
CONTENTION:
The wife contended that Simonin backed the ability to exercise control in her case, but Lord Reid determined that Simonin’s ratio decidendi was unsupportable.
RATIONALE:
The court explained that when a voidable marriage is attempted to be annulled, the location of the ceremony will not be enough to grant jurisdiction. Furthermore, it limited the holding of Simonin to cases involving contested invalid marriages, refusing to enlarge the holding to encompass voidable marriages.
When both parties to a marriage share the same domicile, the tribunal of that domicile has jurisdiction over the marriage regardless of whether it is void or voidable. In Von Lorang v. Administrator of Austrian Property[1], the shared domicile as a basis of jurisdiction was convincingly established in the context of an invalid marriage. When a voidable marriage is in question, it’s important to remember the basic presumption of English domestic law, which states that the wife’s residence changes and becomes the husband’s after the ceremony. When an avoidable defect is claimed, the competent court is the husband’s domicile court.
Hence, it can be explained through the case of Simonin v. Mallac that, It must have been demonstrated that marriage recognized as valid by the law of the country in which it was solemnized should be recognized as accurate in all other countries, but that the meaning of words was widespread preserved as a general rule by well almost all writers on International Law. At the same time, it was not neglected that those writers recognized relationships involving polygamy and incest, which are expressly prohibited by a country’s public law for policy reasons, as falling outside the rule.
It may be unlucky for the petitioner that she is treated as a wife in England but not in France. She may have enjoyed the freedom granted to her by a French justice if she had maintained in her own country; yet, having chosen England as her habitation, she must accept English law as it is, and be recognised as obligated by the contract she made there. The novelty and gravity of the subject have caused the Court considerable anxiety, but some of it has been alleviated by the fact that, if our ruling is incorrect, it may be rectified by the country’s highest tribunal.
DEFECTS:
After the case of Simonin v. Mallac was revealed to be incorrectly determined, whether it should be explicitly overridden arose. Their Lordships decided the dispute by distinguishing between void and voidable marriages, ruling that the strange “rule” in Simonin’s Case did not apply to voidable marriages. Their Lordships could not reach a definitive and final conclusion regarding the “rule’s” future applicability in cases involving a void marriage.’
Three judges were inclined to overrule Simonin’s Case, although it was not imperative to do so; two judges stated they would not override it; Lord Morris was hesitant to repeal it, and Lord Hodson thought the decision may be reversed, but only with caution. It is necessary to study the House of Lords’ reasoning in greater detail to establish whether the House of Lords would overturn Simonin’s Case if called upon to do so.
In Simonin v. Mallac, the English court should have classified the French law requirement for parental consent as an issue of capacity. As a result, the marriage in dispute in Simonin v. Mallac should have been deemed null and void in England due to both spouses’ inability under the law of their domicile.
INFERENCE:
In the case of Simonin v. Mallac, it appears that a judgment nullifying the marriage was issued in France. In the first case, the applicant for an annulment decree in England did not rely just on a French mandate. The English court in the latter instance ruled that perhaps the French regulation could not be recognized in England. In today’s world, the French decree would likely be recognized in England in the circumstances comparable to those in either of these two situations.
The circumstances posed two critical problems for the judges to consider: first, whether the Court has jurisdiction over Leon Mallac, the referenced party; and, second, assuming that such jurisdiction exists, whether the marriage solemnized is null and void under the laws of this country. The judges had the benefit of a knowledgeable argument on the petitioner’s part, and we believe that the Court’s responsibility is substantially heightened by the lack of such aid on the other side.
Given that Simonin v. Mallac n is open to reappraisal from one point of view and that a different result would almost certainly be reached presently on the basic principle of the recognition of the foreign decree in each case, the time seems advantageous for a reconsideration of the grounds on which each of the marriages in question was held to be valid in England without regard to the foreign decree. Both weddings were performed in England. Each party was resident in France in the first case, and the man was in the second case, and neither party had received the parental approval necessary by the French Civil Code.
According to the principle stated in Kerr v. Kerr[2], an English law requirement for parent’s permission may properly have indeed been characterized as part of the solemnities of a marriage and thus was inapplicable to a marriage solemnized in Scotland, but that the French law requirement for parental consent may have to be characterized differently.
Every nation has the right to impose restrictions and prohibitions on its own citizens entering in to the marriage contracts, whether within or outside its borders; and if its citizens suffer hardships as a result of those restrictions, it is solely the responsibility of that nation; but what right does one independent nation have to demand that another equally independent nation capitulate its own legislation in giving effect to certain restrictions and prohibitions
Suppose the provision of French law indeed is viewed in context. In that case, the French government has legislated about parental approval not for the aim of solemnization or from the perspective of solemnization, but for the objective of establishing the capacity to marry and from that perspective.
If a requirement for parental consent appears in some foreign law that may – by English conflict of laws – by the governing law as either to the formal or intrinsic validity of a marriage, an English court confronted with the question of the marriage’s validity should examine the provisions of the foreign law relating to marriage.
In English conflict of laws, the suggestion made in this remark that when a concern arising under foreign law is brought before an English court, the court should characterize a provision of the foreign law in the illumination of complete understanding of the concrete provision and its background in the foreign law is not revolutionary.
[1] Salvesen (or von Lorang) v Austrian Property Administrator [1927] AC 641, 96 LJPC 105, 137 LT 571
[2] Kerr v. Kerr [1934] S.C.R. 72
Dershi Sharma
BBA LLB (2020-25)
NMIMS School Of Law, Bangalore