CONFLICT

OF LAWS | ROBLES NOTES

CONFLICT OF LAWS principle and policy adopted by the
legislature.
• It includes the deciding which laws is to have o When a statue, or the unwritten
superiority; it also includes many cases where common law of the country forbids the
there is no opposition between two systems of recognition of the foreign law, the latter
law, but when the question is how much force is of no force whatever. When both are
may be allowed to a foreign law with reference silent, then the question arises: Which
to which an act has been done, either directly or of the conflicting laws is to have
by legal implication, in the absence of any effect… Each sovereignty must
domestic law exclusively applicable to the case. determine for itself whether it will
• Among the leading canons on the subject are enforce a foreign law.
these: o It is a principle universally recognized
o The laws of every state affect and bind that the revenue laws of one country
directly all property, real or personal, have no force in another. The statutes
situated within its territory, all contracts of one state giving a right of action to
made and acts done and all persons enforce a penalty have no force in
resident within its jurisdiction, and are another. So rights of action arising
supreme within its own limits by virtue under foreign bankrupt, insolvent, or
of its sovereignty. assignment laws are not recognised by
o Possessing exclusive authority, a state a state when prejudicial to the interests
may regulate the manner and of its own citizens.
circumstance under which property, o A remedy special to a particular state is
whether real or personal, in possession not, by any principle of comity,
or in action, within it, shall be held, enforceable elsewhere. Generally, force
transmitted, or transferred, by sale, and effect will be given by any state to
barter, or bequest, or recovered or foreign laws in cases where from the
enforced; the condition, capacity, and transactions of the parties they are
state of all persons within it; the validity applicable, unless they affect injuriously
of contracts and other acts done there; her own citizens, violate her express
the resulting rights and duties growing enactments, or are contra bonos mores.
out of these contracts and acts; and the o In general, the mode of conveying,
remedies and modes of administering encumbering, transmitting, devising,
justice in all cases. and controlling real estate is governed
o Whatever force and obligation the laws by the law of the place of situation of
of one country have in another, the property.
depends upon the laws and municipal o Bills of exchange and promissory notes
regulations of the latter; That is to say, are to be governed, as to validity and
upon its own proper jurisprudence and interpretation, by the law of the place of
polity, and upon its own express or tacit making, as are other contracts. The
consent. 
 residence of the drawee of a bill of
o The power of determining whether, or exchange, and the place of making a
how far, or with what modification, or promissory note where no other place
upon what conditions, the laws of one of payment is specified, is the locus
state or any rights dependent upon contractus.
them shall be recognized in another, is o A statute of limitations of a foreign state
a legislative one. 
The comity involved providing that an action on a note shall
is a comity of the states, and not of the be brought within a certain time after
courts, and the judiciary must be guided the cause of action accrues bars the
in deciding the question by the debt itself if not brought within the time
limited, and may be pleaded in bar of
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an action brought on the note in property, real or personal, of their
another state. Place of payment governs wards, by virtue of a foreign
as to all matters connected with appointment. They must have the
payment. Where a place of payment is sanction of the appropriate local
specified, the interest of that place must tribunal.
be allowed. o Judgments and decrees of foreign
o Chattel mortgages valid and duly courts relating to immovable property
registered under the laws of the state in within their jurisdiction are held binding
which the property is situated at the everywhere. And the rule is the same
time of the mortgage will be held valid with regard to movables actually within
in another state to which the property is their jurisdiction.
removed, although the regulations o Admiralty proceedings in rem are held
there are different, and it will be conclusive everywhere if the court had
enforced in the state to which the rightful jurisdiction founded on actual
property has been removed, although it possession of the subject-matter.
would have been invalid if made in that o Voluntary assignment of personal
state. property, valid where made, will transfer
o The law in regard to chattel mortgage is property everywhere.
governed by the lex rei sitae or "the law o Discharges by the lex loci contractus are
where the property is situated;” that a valid everywhere. State insolvent or
lien is extinguished when goods are bankrupt law may not have extra-
taken from the place where the lien was territorial effect to discharge the debtor.
created to a place where such lien is not
recognized. DOMICILE
o The lex fori determines the remedies on
the mortgage. • To acquire a domicile of choice, the following
o Questions of priority of liens and other conditions must concur, namely: capacity to
claims are, in general, to be determined choose, actual presence in the locality chosen,
by the lex rei sitae even in regard to and intention to remain permanently.
personal property. The existence of a • Residence is the permanent home, the place to
lien will generally depend on the lex which, whenever absent for business or
loci.
 pleasure, one intends to return. A man can have
o The scope of a marriage settlement but one domicile at a time, and residence is
made abroad is to be determined by synonymous with domicile.
the lex loci contractus. • Actual presence is not necessary to retain
o In an action brought in one state for domicile of origin or of choice; A domicile once
injuries done in another, the statutes acquired is retained until a new domicile is
and decision of the courts of the latter gained.
state must fix the liability. • In order to hold that a person has abandoned
o An assignment of a movable which his domicile and acquired a new one, the
gives a good title according to the law following conditions must concur: 1) residence
of the country where it is situated is or bodily presence in the new locality; 2) an
generally recognized as valid in intention to remain there permanently (animus
England, whatever the domicil of the manendi); and 3) an intention to abandon his
parties may be. old domicile (animus non revertendi).
o Executors and administrators, in the • Domicile and residence are not identical terms,
absence of specific statute authorizing since a person may have two places of
it, have no power to sue or be sued by residence, as in the city and country, but only
virtue of a foreign appointment as such. one domicile. Residence living in a particular
Guardians have no power over the locality, but domicile means living in that locality
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with intent to make it a fixed and permanent remaining. 
These two must exist or must have
home. existed in combination. 

• Mere taking up residence is not sufficient,
Rules: unless there be an intention to abandon a
former domicil.
1) That a man must have a domicile; • The place where a person lives is presumed to
2) That while a man may have only one domicile at be the place of domicil until facts establish the
a given time, he may, however, have more than contrary. 

one residence, one of which the law will regard • Domicil is said to be three kinds: 1) domicil of
and consider as his legal domicile; origin or by birth; 2) domicil by choice; and 3)
3) That once am an has acquired a domicile, domicil by operation of law.
whether it be a domicile of origin or one of • The place of birth is the domicil by birth if at
choice, that remains to be his domicile until he that time it is the domicil of the parents. The
acquires a new one; domicil of origin always remains in abeyance, as
4) That in order to hold that a man has abandoned it were, to be resorted to the moment the
his domicile and acquired a new one, the domicil of choice is given up. If one leaves a
following conditions must concur: a) residence domicil of choice, with the intention of acquiring
or bodily presence in the new locality; b) an a new one, his domicil of origin attaches the
intention to remain there permanently; and c) an moment he leaves the former, and persists until
intention to abandon the old domicile; he acquires the latter. This, however, can only
be true of national, as distinguished from local
Domicil domicil; where a local domicil of choice is
acquired, it certainly persists until a new one is
• That place where a man has his true, fixed, and adopted.
permanent home and principal establishment, • Domicil by choice is that domicil which a person
and to which whenever he is absent, he has the of capacity of his free will selected to be such.
intention of returning; • Domicil is conferred in many cases by operation
• A person must have a domicil for purpose of of law, either expressly or consequently.
taxation; for jurisdiction; for succession; for • Any person, sui juris or “of age,” may make any
administration; for homestead exemption; a bona fide change of domicil at any time. 
And
person can, however, have but one domicil at a the object of the change does not affect the
time; right if it be a genuine change with real
• It is quite possible for a person to have two intention of permanent residence.
domicils; a person may have both a civil and • To constitute a change of domicil three things
commercial domicil; are essential: 1) residence in another place; 2)
• Domicil may be either national or domestic; in an intention of acquiring a near one; 3) an
deciding the question of national domicil, the intention to abandon the old domicil
point to be determined will be in which of two • In the acquisition of a new domicil, more is
or more distinct nationalities a man has his required than a mere change of residence; there
domicil. In deciding the matter of domestic must be a fixed intention to renounce birthright
domicil, the question is in which subdivision of in the place of original domicil and to adopt the
the nation does the person have his domicil. political and municipal status involve by
Thus, whether a person is domiciled in England permanent residence of choice elsewhere.
or France would be a question of national • The law of the place of domicil governs as to all
domicil, whether in Norfolk or Sufflock, country, acts of the parties, when not controlled by the
a question of domestic domicil. lex loci contractus or lex rei sitae.
• Legal residence, inhabiting, and domicil are • The state and condition of the person according
generally used as synonymous. 
 to the law of his domicil will generally, though
• Two things must concur to establish domicil: not universally, be regarded in other countries
the fact of residence, and the intention of as to acts done, rights acquired, or contracts
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made in the place of his native domicil; but as
to acts, rights, and contracts done, acquired, or • Lex loci translates to “the law of the place;” this may
made out of his domicil, the lex loci will either be:
generally govern in respect to his capacity and o Lex loci contractus (The law of the place of
condition. making a contract); 

• The disposition of, succession to, or distribution o Lex loci rei sitae or lex situs (The law of the
of the personal property of a decedent, place where a thing is situated); 

wherever situated, is to be made in accordance o Lex loci actus or lex actus (The law of the place
with the law of his actual domicil at the time of where a legal transaction takes place); 

his death. The principle applies equally to cases o Lex loci celebrationis (The law of the place
of voluntary transfer, of intestacy, and of where a contract is made); 

testaments. Wills are to be governed by the o Lex loci solutionis (The law of the place where a
laws of the domicil as to the capacity of parties, contract is to be performed); 

and as to their validity and effect in relation to o Lex loci delicti commissi (The law of the place
personal property; but by the lex rei sitae as to where a tort is committed). 

the transfer of real property. • In general, lex loci is only used for lex loci
• The forms and solemnities of the place of contractus. Lex loci contractus is used in a double
domicil must be observed; the local law is to sense in many of the cases. It is used sometimes, to
determine the character of property. [It is held denote the law of the place where the contract was
that a state may regulate the succession to made, and at other times to denote the law by
personal as well as real property within its limits, which the contract is to be governed, which may or
without regard to the lex domicile] may not be the same as that of the palce where it
• The interpretation of a will of movables is to be was made.
according to the law of the place of the last
domicil of the testator. But so far as its validity is . A contract legal by lex loci will be so everywhere,
concerned, it does not matter that after the will unless: 

was made in one domicil the testator obtained a o it is injurious to the public rights or morals of the
new domicil, where he died. But it must be valid lex fori; 

under the law of the new domicil. o contravenes the policy of the lex fori; 

• Distribution of the personal property of an o violates a positive law of the lex fori 

intestate is governed exclusively by the law of
his actual domicil at the time of his death. This . The application of the lex loci is a matter of comity;
includes the ascertainment of the person who is and that law must, in all cases, yield to the positive
to take. The descent of real estate depends law of the place of seeking remedy. 

upon the law of the place of the real estate. The . The capacity of parties as affected by questions of
question whether debts are to be paid by the minority or majority, incapacities incident to
administration from the personalty or realty is to coverture, guardianship, emancipation, and other
be decided by the law of his domicil. personal qualities or disabilities, is to be decided by
• An assignment of property for the benefit of the law of the place of making the contract (lex loci
creditors valid by the law of the domicil is contractus). 

generally recognized as valid everywhere, in the . The question of disability to make a contract on
absence of positive statute to the contrary, but account of infancy is to be decided by the lex loci. 

not to the injury of citizens of the foreign state . Personal disqualifications not arising from the law of
in which property is situated. nature, but from positive law, and especially such as
• Distribution of the effects of insolvent or are penal, are strictly territorial, and are not to be
bankrupt debtors is to be made according to enforced in any country other than that where they
the law of the domicil, subject to the same originate.
qualifications.

LEX LOCI
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. It is held generally that the claims of citizens are to Frauds prevails. But where the law of the forum and
be preferred to those of foreigners. Assignments, that of the place of the execution of the contract
under the insolvent laws of a foreign state, are often coincide, it will be enforced, although required to
held inoperative as against claims of a citizen of the be in writing by the law of the place of performance,
state, in regard to personal property in the because the form of the contract is regulated by the
jurisdiction of the lex fori. law of the place of celebration, and the evidence of
. The interpretation of contracts is to be governed by it by that of the forum.
the law of the country where the contract was made . The general rule is that a defense or discharge,
(lex loci contractus). 
 good by the law of the place where the contract is
. The lex loci governs as to the formalities and made or is to be performed, is to be held of equal
authentication requisite to the valid execution of validity in every place where the question may come
contracts. But, in proving the existence of, and to be litigated.
seeking remedies for, the breach, as well as in all . “Proper law of the contract,” which is the law, or
questions relating to the competency of witnesses, laws, by which the parties to a contract intended, or
course of procedure, etc., the lex fori must govern. may fairly be presumed to have intended the
. The lex loci governs as to the obligation and contract to be governed. This may be the law of the
construction of contracts; unless, from their tenor, it place where the contract was made, or it may be the
must be presumed they were entered into with a place of performance. [The contract must not be
view to the laws of some other state. This unlawful by the law of the country where it is made;
presumption arises where the place of performance and the performance must not be unlawful by the
is different from the place of making. law of the country where it is to be performed; and
. It has been held that a lien or privilege affecting it must not form part of a transaction which is
personal estate, created by the lex loci, will unlawful by the law of the country where the
generally be enforced wherever the property may transaction is to take place.]
be found, but not necessarily in preference to claims . The validity of a contract cannot be secured by
arising under the lex fori, when the property is apparently subjecting it to a law by which it is not
within the jurisdiction of the court of the forum. 
 properly governed.
. A discharge from the performance of a contract . An action for a tort committed in a foreign country
under the lex loci is a discharge everywhere. will lie only when it is based upon an act which will
. A distinction is to be taken between discharging a be considered as tortious both in the place where
contract and taking away the remedy for a breach. committed and in the locus fori; in such case, the
. Statutes of limitations ordinarily apply to the law of the place where the tort was committed
remedy, but do not discharge the debt. governs (lex loci delicti commissi).
. If the contract is to be performed partly in one state . The law of all acts relating to real property is
and partly in another, it will be affected by the law governed by the lex rei sitae.
of both states. . It is said that the failure to comply with local
. In cases of indorsement of negotiable paper, every requirement as to form, not affecting the obligation
indorsement is a new contract, and the place of of the agreement, will not invalidate the contract.
each indorsement is in its locus contractus.
. The place of payment is the locus contractus; LEX FORI (THE LAW OF THE FORUM)
however, as between indorsee and drawer, the
place of acceptance of a draft is regarded as the • The law of the country to the tribunal of which
locus contractus. appeal is made
. A note made in one state and payable in another, is • The local or territorial law of the country to
not subject to the usury laws of the latter state, if it which a court, wherein an action is brought, or
was valid in that respect in the state where it was other legal proceeding is taken belongs
made. • The forums of remedies, modes of procedure,
. A contract valid by the laws of the place where and execution of judgments are regulated solely
made, although not in writing, will not be enforced and exclusively by the law of the place where
in the courts of a country where the Statute of the action is instituted
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• A cause of action arising in one state, under the (lex fori); and without regard to the domicil of
common law as there understood, may be the deceased; but the distribution of the
enforced in another state where it would not distributable residue is governed by the lex
constitute a cause of action, if the variance in domicilii; usually the distributable residue is
there laws does not amount to a fundamental remitted to the administration of the domicil for
difference of policy distribution; it is the discretion of the court of
• The lex fori is to decide who are proper parties the ancillary administration to distribute such
to a suit; the lex fori governs as to the nature, residue
extent, and character of the remedy • The damage recoverable from an employer for
• The forms of judgment and execution are to be the death of his employee, caused by the
determined by the lex fori. The lex fori decides negligence of the former, are controlled by the
as to deprivation (? Labo ng notes) of remedy in law of the place where the contract of
that jurisdiction employment was made and the accidence
• When a debt is discharged by the law of the occurred, though the death took place and the
place of payment, such discharge will amount to action was brought in another state
a discharge everywhere, unless such discharge • The statutes of one state giving an action for
is held by courts of another jurisdiction to wrongful death may be enforced in the courts of
contravene natural justice. It must be a another state, if not inconsistent with the statute
discharge from the debt, and not an exemption and policy thereof.
from the effect of particular means of enforcing • In England, an action lies in one state on a
the remedy wrong done in another state, which is actionable
• The discharge of a citizen of the state, covering there, although it would not be actionable in the
a discharge from an obligation, is not a bar state where suit is brought unless it be contrary
against a citizen of another state, although the to its own public policy
contract creating the obligation was to be
performed in the state granting the discharge LAW MERCHANT
• Statutes of limitation affect the remedy only;
hence the lex fori will be the governing law • The general body of commercial usages in
• If a statute in force in the place where the cause matters relative to commerce. Blackstone calls it
of action arose extinguishes the obligation, and the custom of merchants. It is a system of law
does not merely bar the remedy, no action can which does not rest exclusively on the positive
be maintained in another jurisdiction after it has institutions and local customs of any particular
taken effect country, but consists of certain principles of
• The right of set-off is to be determined by the equity and usages of trade which general
lex fori. Liens, implied hypothecations, and convenience and a common sense of justice
priorities of claims, generally are matters of have established to regulate the dealings of
remedy. [but only, it would seem, where the merchants and mariners in all the commercial
property affected is within the jurisdiction of the countries of the civilized world
courts of the forum] • These usages, being general and extensive,
• A prescriptive title to personal property, partake of the character of rules and principles
acquired in a former domicile, will be neglected of law, not of matters of fact, as do usages
by the lex fori which are local or special. They constitute a part
• Questions of the admissibility and effect of of the general law of the land, and, being a part
evidence are to be determined by the lex fori; of that law, their existence cannot be proved by
also questions of costs; exemption laws are witnesses, but the judges are bound to take
ordinarily governed by the lex fori. notice of them ex-officio.
• The administration of a deceased person’s
movable is governed wholly by the law of the
country where the administrator acts and from MARITIME LAW
which he derives his authority to collect them
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• That system of law which particularly relates to to which the admiralty jurisdiction in cases of
the affairs and business of the sea, to ships, contract applies. This maritime jurisdiction of
their crews and navigation, and to the marine civil injuries has been held to extend to all cases
conveyance of persons and property of personal injuries committed by the master or
• Maritime law is a law common to all nations his officers against passengers or seamen.
which are engaged in maritime commerce; it • Every violent dispossession of property at sea is
consists of certain principles of equity and prima facie a maritime tort.
usages of trade which general convenience and
a common sense of justice have established in READ:
all the commercial countries of the world, to 1) The Harrisburg, 119 U.S. 199, 30 L.Ed. 358
regulate the dealing and intercourse of 2) Mcdonald vs. Mallory, 33 Am.Rep. 664
merchants and mariners, in matters relating to 3) The City of Norwalk, 55 Fed. 98
the sea
• Maritime law does not in the least depend upon LEX MERCATORIA
the court in which it is to be administered, but
furnishes the proper rule of decisions in case to • That system of laws which is adopted by all
which it applies, no matter in what court they commercial nations, and which, therefore,
may be brought; and it has, in fact, been constitutes a part of the law of the land
administered in different countries, each
constitutes in its own manner LEX REI SITAE
• The jurisdiction of the admiral, and the
administration of the admiralty law proper — • The law of the country where a thing is situated
the local maritime law — as it became a judicial • It is the universal rule of the common law that
function, has passed into the hands of the any title or interest in land, or in other real
courts, and they now administer the admiralty estate, can only be acquired or lost agreeably to
law and the maritime law, both of which are the law of the place where the same is situated;
sometimes called the admiralty law, sometimes and the law is the same in this respect to all
the maritime law, and sometimes the admiralty methods whatever of transfer, and every
and maritime law; and cases arising under them restraint upon alienation
are cases of admiralty and maritime jurisdiction • The lex rei sitae governs as to the capacity of
• The question as to the true limits of maritime the parties to any alienation, whether
law and admiralty jurisdiction is exclusively a testamentary or inter vivos, or to make a
judicial question, and no state law or act of contract with regard to a movable, or to acquire
Congress can make it broader or narrower than or succeed to a movable as affected by
the judicial power may determine those limits to questions of minority or majority
be • As to the forms and solemnities of alienation,
and the restrictions, if any, imposed upon such
MARITIME TORT alienation, the lex rei sitae must be complied
with, whether it be a transfer by devise
• A tort which by reason of the place where it is • As to the amount of property or extent of
committed is within the jurisdiction of admiralty interest which can be acquired, held, or
• A tort committed upon water and which comes transferred, the lex rei sitae governs; as well as
within the jurisdiction of a court of admiralty over the question of what is real property
• Civil jurisdiction of torts has been held to • The law of a country where a thing is situated
depend solely upon the place where the cause determines whether the thing itself, or any right,
of action arises; but a doubt is suggested obligation, or document connected with the
whether it does not also depend upon the thing is to be considered an immovable or a
relation of the parties to a ship or vessel, movable
embracing only those tortious violations of • Generally, the lex rei sitae governs as to the
maritime right and duty which occur in vessesl, validity of any such transfer
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• The validity, construction, and effect of wills of birth in the country, or it is given personally by
movables depend upon the lex rei sitae; but the statute.
law of the state where the will was made may be • A native citizen…. A natural-born subject.
considered by the court of the situs in
determining the meaning of certain words in it. NATIONALITY
the validity of a charitable devise and a direction
for accumulation depend upon the lex rei sitae, • National… a word commonly used in diplomatic
and so does the execution of a power of language and in treaties to indicate a citizen or
appointment of lands under a will; and the subject of a given country.
devolution of land, whether in case of intestacy • Nationality is the character, status, or condition
or under a will with reference to the rights and duties of a
• The acquisition of a title to land by lapse of time person as a member of some one state or
(prescription) must be determined by the lex rei nation rather than another.
sitae, except as far as the limitation to an action • Nationality may be determined from origin,
to recover land depends on the lex fori naturalization, domicil, residence, trade or other
• A contract for the conveyance of land, valid by circumstances.
the lex fori, will be enforced in equity by a • The term is in frequent use with regard to ships.
decree in personam for a conveyance valid Nationality determined by one’s birthplace or
under lex rei sitae parentage is called nationality of origin; that
• All executor foreign contract for the conveyance which results from naturalization is nationality by
of lands not repugnant to the lex rei sitae will be acquisition. In feudal times, nationality was
enforced in the courts of the latter country by determined exclusively by the place of birth,
personal process jure soli; but under the laws of Athens and
Rome, the child followed that of the parents,
CITIZENSHIP jure sanguinis.
• There is no distinction between native-born and
• The net result of citizenship was that by it alone natural born.
one becomes entitled to the protection of the
laws — the jus civile or “civil law.” It was MARRIAGE
exclusive and personal, not territorial.
• The term citizen was used in Rome to indicate • The better opinion appears to be that marriage is
the possession of private civil rights, including something more than a mere civil contract. It has
those accruing under the Roman family and been variously said by different writings to be a
inheritance law and the Roman contract and status, or a relation, or an institution.
property law. All other subjects were • It is both a civil relation and a contract but is not a
peregrines. But in the beginning of the 3rd contract within the constitutional provision as to
century the distinction was abloshed and all impairment of contracts.
subjects were citizens. • Marriage contracts are not avoided by fraud which
• Citizen… one of the sovereign people. A merely induces consent, but by fraud which
constituent member of the sovereignty, procures the appearance, without the reality, of
synonymous with the people. A member of the consent. The kind and degree of fraud which will
civil state entitled to all its privileges. permit the annulment of the marriage, will be
• Citizens are either native-born or naturalized. determined by the law of the forum, although the
Generally it is presumed, at least until the proceeding is instituted in accordance with the law
contrary is shown, that every person is a citizen of the state where the marriage was performed.
of the country in which he resides. • A prohibition, imposed by the laws of a state
• The right of citizenship never descends in the against a subsequent marriage by a husband
legal sense, either by the common law, or under against whom a decree of divorce has been
the common naturalization acts. It is incident to rendered, can have no extra- territorial effect; and
therefore such person may contract a subsequent
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marriage in another state where the law imposes no o The place where the offense was
such prohibition. [but at his death the second wife is committed, whether in the country in
not entitled to letters of administration on his which the suit is brought or a foreign
estate, in the estate which imposed the prohibition country, is immaterial;
against his re-marriage.] o The domicil of the parties at the time
when the offense was committed is of
Theories as to the law which is to determine the no consequence, the jurisdiction
question of matrimonial capacity depends on their domicil when the
proceeding is instituted and the
o It is determined by the law of the place of judgment is rendered;
solemnization of the marriage; o It is immaterial to this question of
o It is determined by the lex domicilii; jurisdiction in what country or under
o Matrimonial capacity is a distinctive national what system of divorce laws the
policy, as to which judges are obliged to marriage was celebrated;
enforce the rules of the state of which they are o Without a citation within the reach of
the officers. process, or an appearance, the
jurisdiction extends only to the status
• In most states, the degrees of relationships within and what depends directly thereon, and
which marriages may not be contracted are not to collateral rights.
prescribed by statute. o When both the husband and wife are
• Marriage settlement is is an agreement made by the domiciled in the state where the divorce
parties in contemplation of marriage, by which the is granted, the decree of divorce is,
title to certain property is changed, and the without doubt, valid everywhere;
property to some extent becomes inalienable. Such o If the court making the decree had
settlements are valid, the marriage being at law a jurisdiction, it will be held conclusive in
valuable consideration; and payments made in other states; and jurisdiction will be
pursuance thereof cannot be set aside by creditors. presumed, unless the want of it appears
• A contract to marry is not void as being in restraint upon the record; or it may be shown as
of marriage, although restraining the parties thereto against the record.
from marriage with any other parties. o In several states, divorce are by statute
inoperative when a person goes out of
DIVORCE the state and obtains elsewhere a
divorce for a cause not valid in the state
• Divorce is the dissolution or partial suspension, from which he goes;
by law, of the marriage relation. o In several states, the courts have held
• Marriage, being a legal relation, and not a mere invalid decrees, for causes not
contract, can only be dissolved by legal cognizable in that state, granted in
authority. another state, for a divorce when the
• Validity in one state of divorce granted by the party went there to procure it.
courts or legislature of another state; theories:
o The tribunals of a country have no
jurisdiction over a cause of divorce,
wherever the offense may have
occurred, if neither of the parties has an
actual bona fide domicil within the
country;
o To entitle the court to take jurisdiction,
it is sufficient for one of the parties to
be domiciled in the country.

ATTY. ROBLES | C2021 9