CASE: OGDEN v.
OGDEN (OTHERWISE PHILIP), COURT OF APPEAL, 1907 July
26, 27; Oct. 14; Nov. 18.
JUDGES: Cozens-Hardy M.R., Sir Gorell Barnes, President, and Kennedy L.J.
Nullity of Marriage – Bigamy – Marriage in England between Englishwoman and Domiciled
Frenchman Irregularity by French Law – Decree of Nullity by French Court on Grounds
unknown to English Law – Conflict of Laws – Lex loci contractus – Jurisdiction.
BRIEF FACTS:
The case involved a dispute between a husband and wife over the validity of a separation
agreement and whether it constituted a legal marriage contract.
In September, 1898, a ceremony of marriage in English form was celebrated in England between
a domiciled English woman and P., a domiciled Frenchman. By a decree of the French Court in
November, 1901, this marriage was annulled, on the ground that the consent of the parent, as
required by French law, had not been obtained. P. subsequently married a French woman in
France. In July, 1903, the English woman instituted a suit in England for the dissolution of her
marriage with P. on the ground of his adultery and desertion.
This suit was dismissed for want of jurisdiction. In October, 1904, the Englishwoman went
through a ceremony of marriage in England with O., a domiciled Englishman, describing herself
as a widow: -
Issue:
whether, in circumstances like the present, the Court ought not to have assumed jurisdiction in
the wife’s suit for the dissolution of her first marriage by treating her as having a domicile in her
own country sufficient to support a suit of this kind.
Judgment:
Court's Analysis: This analysis involved reviewing the terms of the agreement and the
intentions of the parties involved. The question raised by this appeal was the effect of a decree of
nullity of marriage by a French Court on a marriage solemnized in England between a domiciled
Englishwoman and a domiciled Frenchman temporarily residing in England.
Sir Edward Clarke, K.C., and Bayford, for the appellant stated;
A marriage celebrated according to the forms required by the local law is valid universally
unless one or both of the parties is or are by the law of his, her, or their domicile incapable of
contracting such marriage. It follows that a marriage celebrated in England according to the
forms of that country is only valid if such party thereto is by the law of his or her domicile
capable of celebrating such marriage
Judge Cozens-Hardy M.R stated,
it’s a well-recognized principle of law that the question of personal capacity to enter into any
contract is to be decided by the law of domicile. It is, however, urged that this does not apply to
the contract of marriage, and that a marriage valid according to the law of the country where it is
solemnized is valid everywhere.
However, he pointed out that this is not a correct statement of the law. The law of a country
where a marriage is solemnized must alone decide all questions relating to the validity of the
ceremony by which the marriage is alleged to have been constituted; but, as in other contracts, so
in that of marriage, personal capacity must depend on the law of domicile; and if the laws of any
country prohibit its subjects within certain degrees of consanguinity from contracting marriage,
and stamp a marriage between persons within the prohibited degrees as incestuous, this, in our
opinion, imposes on the subjects of that country a personal incapacity, which continues to affect
them so long as they are domiciled in the country where this law prevails, and renders invalid a
marriage between persons both at the time of their marriage subjects of and domiciled in the
country which imposes this restriction, wherever such marriage may have been solemnized.”
Holding:
Sir Gorell Barnes delivered the judgement and stated;
This suit is dismissed for want of jurisdiction and the marriage ceremony the Englishwoman
went through in 1904 in England with O., a domiciled Englishman, describing herself as a
widow wass deemed bigamous and annulled, at the suit of O was declared;
following Simonin v. Mallac, (1860) 2 Sw. & Tr. 67, and Sottomayor v. De Barros, (1879) 5 P.
D. 94),
