PRIVATE INTERNATIONAL LAW.pdf

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PRIVATE INTERNATIONAL LAW
10th SEMESTER LLB (HONS)
MAHATMA GANDHI UNIVERSITY
Module: Nature, scope and general principles of private
international law- Distinction between public and private
international law- Theories of private international law-
Codification of private international law- Hague Convention
NATURE AND SCOPE OF PRIVATE INTERNATIONAL LAW
According to CHESHIRE, "Private International law is that part of
the law is that which comes into existence when the issue before the
court effects some facts, events, transaction which is so closely
connected with a foreign system of law as to necessity recourse to that
system."
Private international law is that part of English law which comes into
operation whenever the court is faced with a claim that contains a
foreign element. It is only when this element is present that private
international law has a function to perform. It has three main objects.
1. First, to prescribe the conditions under which the court is
competent to entertain such a claim.
2. Secondly, to determine for each class of case the particular
municipal system of law by reference to which the rights of the
parties must be ascertained.
3. Thirdly, to specify the circumstances in which (a) a foreign
judgement can be recognised as decisive of the question in
dispute; and (b) the right vested in the judgement creditor by a
foreign judgement can be enforced by action in England.
Private international law is not a separate branch of law in the same
sense as, say, the law of contract or of tort. Nevertheless, private
international law is a separate and distinct unit in the English legal
system just as much as the law of tort or of contract, but it possesses
this unity, not because it deals with one particular topic, but because it
is always concerned with one or more of three questions, namely:
(a) Jurisdiction of the English court.
(b) Recognition and enforcement of foreign judgments.
(c) The choice of law.
(A)JURISDICTION
The basic rule at common law is that the English court has no
jurisdiction to entertain an action in personam unless the defendant
has been personally served with a claim form in England or Wales. This
rule, which cannot be satisfied while the defendant is abroad, applies,of
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course, whether the case has a foreign complexion or not, but there are
three reasons which require the question of jurisdiction to be
separately treated in a book on private international law. First,
there are certain circumstances in which the court is empowered by
statute to assume jurisdiction over absent defendants, a power which
naturally is of greater significance in foreign than in domestic cases.
Secondly, there are certain types of action, such as a petition for
divorce, where the mere presence of the defendant in the country does
not render the court jurisdictionally competent. Thirdly, there is a
separate regime of jurisdictional rules in the case of a defendant
domiciled (in a specially defined sense) in a Member State of the
European Union.
(B) RECOGNITION
Where there has been litigation abroad, but the defendant has most
of his assets in England, it will be important to ascertain whether
English law will recognise or permit the enforcement of the foreign
judgment. Provided that the foreign court had jurisdiction to
adjudicate on the case, according to English private international law,
the English court will generally recognise the foreign judgement as if
one of its own and it can be enforced accordingly. Again, our
membership of the European Union has led to the introduction of
important specific rules for the recognition of judgments from courts of
the Member States.
(C) CHOICE OF LAW
Courts go through a two-stage process when presented with a choice of
law issue:
● The law of the forum (lex fori) shall be used by the court in all
procedural matters, including regulations regarding the choice of
law;
● The laws with the strongest connections, such as the law of
nationality (lex patriae) or the law of habitual residence, are
applied after taking into account the circumstances that connect
or relate the legal concerns to the laws of possibly relevant
nations (lex domicilii).
GENERAL PRINCIPLES UNDER PRIVATE INTERNATIONAL LAW
● The validity of marriage is determined by the law of the place
where marriage was solemnised.
● Succession of immovable property is governed by laws of the
land where the property is situated
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● Proper law of contract decides the contractual liability between
the parties
● Law of Procedure is governed by the law of the Forum
● In a case of liability under the law of torts, it is governed by the
law of the land where the damage occurred.
DISTINCTION BETWEEN PRIVATE INTERNATIONAL LAW &
PUBLIC INTERNATIONAL LAW
As to consent: Public International law based on the consent of state.
Private International law is not based on the states.
As to object: Public International law regulate relationship of states
inter se and determine rights and duties of the subject states at
international sphere. Private International law determines as to which
law will apply of two conflicting in a particular case having foreign
element.
As to conflict of law: Public International law does not involve in
conflict of laws. Private International law involves conflict of law.
As to Nature: Public International is same for all the states. Private
International may be different in various states.
As to sources: Public International law has its sources in treaties,
custom etc Private International law has its sources in legislations of
the individual state to which litigant belongs.
As to Application: Public International law is applicable to civil as
well criminal cases. Private International is applicable to civil cases
only, which present themselves for accession of courts of the state.
As to subject: Public International law deals with states. Private
International law deals with individuals.
As to Municipal law: Public International law is not part of
Municipal law but Private International law is a part of municipal law.
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As to Jurisdiction: Public International law does not involve
question on the determination. Private International law determines
court which will have jurisdiction to decided issue in question.
THEORIES OF PRIVATE INTERNATIONAL LAW
There are 5 major theories of Private International Law. These
theories are namely- Statute Theory, International Theory, Territorial
Theory, Local Law Theory and Theory of Justice.
1. Statute theory
The statute theory can be said to be the oldest theories of Private
International law. It was originated in 13th century Italy by Bartolus.
He is often denoted as the father of this theory. He had developed the
statute theory in order to resolve conflicts between the city states and
their laws with the Italian law at the time. The statutes were divided
into 2 heads depending upon the object of law, these were namely-
Statuta Personalia and Statuta Realia.
● Statutes concerning persons (Statuta Personalia)- It dealt with
people and applied to persons domiciled within a territory. The
statutes of that particular territory applied to such domiciled
persons even when they went to other territories.
● Statutes concerning things (Statuta Realia)- It dealt with things
and was mainly territorial in nature.
● Mixed Statutes (Statuta Mixta)- Bartolus however, created a third
subhead for the statutes. This dealt with acts rather than persons
or things. For example, formations of contracts or agreements
would fall under this sub-head. These applied to all acts done in
the territory enacting such statutes, even when litigation with
respect to such acts was done in another jurisdiction.
2. International theory
This theory is also known by the name of its founder Von Savigny.
The German jurist completely rejected the statute theory propounded
earlier in his book on Conflict of Laws published in 1849. He termed
the statute theory to be incomplete and ambiguous. Savigny advocated
a more scientific method by saying that the problem is not to classify
laws according to their object, but to discover for every legal relation
that local law to which in its proper nature it belongs. Each legal
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relation has its natural seat in a particular local law, and it is that law
which must be applied when it differs from the law of the Forum.To
determine the natural seat Savigny has explained four principal
determinants. These are:
● The domicile of a person affected by the legal relation
● The place where a thing, which is the object of a legal relation is
situated
● The place where a juridical act is done
● The place where a Tribunal sits.
3. Territorial theory or theory of acquired rights
The theory of Acquired Rights as called by many scholars or the
Territorial theory, had laid its foundations when Dutch Jurist Huber
propounded his theory back in 17th century as the theory bases itself
on the concept of territoriality. However, it was developed later on by
common lawyers like Dicey and Beale in England and USA
respectively. The theory in most simple words state that “courts of
sovereign states do not apply foreign law but merely recognize the
consequences of the operation of foreign law.” This means that courts
of a country according to them, apply foreign law only to the extent to
which they are permitted to do so by the sovereign. It has been applied
in the case of Dalrymple v. Dalrymple by Sir William Scott.
4. Local Law theory
The Local Law theory was propounded by Walter Wheeler Cook and
can be called as a developed version of the territorial theory. Cook
emphasised on the fact that governing rules should not be derived from
logical reasoning of philosophers or jurists but by observing the
previous decisions of the courts. He basically emphasised on the
importance of precedents. While the local law theory is based on
precedents majorly, it does not completely ignore foreign laws that can
cause points of conflicts. For example, there is a Nigerian woman
marrying an English man in England. Her marriage would still be valid
in Nigeria for the reason that the concept of marriage laws has a
similar nexus in both Nigeria and England.
5. Theory of justice
The Theory of Justice was developed by Dr Graveson with the only
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basis of delivering true justice. According to him private international
law has a threefold premise, namely- sociological, ethical and legal.
Sociologically, it calls for a need fair treatment of private transactions
of individuals internationally. Ethically, it speaks about the desire of
English courts to do justice by looking at the training and traditions of
jurors, judges and lawyers in their day to day delivering of justice.
Lastly, legally, it rests on the terms of oaths of the judges.
CODIFICATION OF PRIVATE INTERNATIONAL LAW
Codification is the elaboration of a methodic and systematic body that
comprises the rule of a specific branch of law. Codification occurs both
in international and national spheres of the legislative process. The
instruments adopted to these two levels are closely interdepent. They
complement each other, yet they share a relationship characterized by
tension and discrepancies which act as incentives for further
improvement.
Codification of private international law has the same characteristics
and fulfils the objectives similar to those general codification, but
concerns the normative aspects that regulate cases containing elements
of foreign law. From the inception of the codification movement,
international private relations have been regulated both within the
States in which they are created or produce their effects, and within
international community by way of policies and principles acceptable
to all the legal system to which international private relationship may
be connected.
HAGUE CONVENTION
The Hague Conference on Private International Law (HCCH) is the
international organisation for cross-border cooperation and
commercial concerns, and it has its roots in a conference called by the
Dutch government in 1893. It creates conventions (rather than
principles, recommendations, and model laws) in several areas of
private law, including subjects like intercountry adoption and child
abduction as well as more modern problems like jurisdictional and
choice-of-law rules. The Hague Conference’s Statute on Private
International Law (entered into force on 15 July 1955) outlines the
organisation and goals of the conference.
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The whole text, status, bibliographic data, and explanatory reports on
the Hague Conference’s work are all available online, including:
● Convention Abolishing the Requirement of Legalisation for
Foreign Public Documents (Apostille Convention) concluded
at The Hague on 5 October 1961 and entered into force on 24
January 1965;
● Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters (Hague Service
Convention) concluded at The Hague on 15 November 1965
and entered into force on 10 February 1969;
● Convention on the Taking of Evidence Abroad in Civil or
Commercial Matters (Taking of Evidence Convention)
concluded at The Hague on 18 March 1970 and entered into
force on 7 October 1972;
● Convention on the Civil Aspects of International Child
Abduction (Child Abduction Convention), concluded at The
Hague on 25 October 1980 and entered into force on 1
December 1983; and
● Convention on Protection of Children and Co-operation in
Respect of Intercountry Adoption (Hague Adoption
Convention) concluded at The Hague on 29 May 1993 and
entered into force on 1 May 1995.
The News and Events section on the official website provides the latest
information on the status of conventions. The archives on the website
go back to 1997. The lists of Central Authorities designated under
various conventions are also maintained by the Hague Conference.
Module 2: Classification of cause of action- Renvoi-
Jurisdiction of courts- immunity enjoyed by the sovereign-
Assumed jurisdiction- Proof of foreign law-Exclusion of
foreign law.
Classification of cause of action is also known as characterization and
Qualifications to French writers. It is one of the important elements in
understanding decision making in a dispute having a foreign limit.
Once the court finds that it has jurisdiction, the next stage ie.
classification of causation of crime arises. In this stage court will find
out the real character of the suit and it will put in the appropriate
category. In this stage court will decide whether the cause of action
relates to tort, contract, succession, matrimonial causes, guardianship
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of child etc.
In Ogden V. Ogden(1908) a Frenchmen under the age of 21 marries
an English woman in England without obtaining the consent of his
parent required by French law. The French and English conflict rules
agree that the formalities of marriage are governed by lex loci
Celebrationis(English law) and also that husband must have the
capacity to marry by his personal law(French law)
RENVOI
The Doctrine of Renvoi is the process by which the Court adopts the
rules of a foreign jurisdiction with respect to any conflict of laws that
arises. The idea behind this doctrine is to prevent forum shopping ie.
the practice of deliberately choosing a specific court for a legal case in
the hope of getting a favorable outcome and the same law is applied to
achieve the same outcome regardless of where the case is actually dealt
with.
Renvoi” originates from the French “send back” or “return
unopened”. The “Convention of Renvoi” is the procedure by which the
Court embraces the principles of an foreign law as for any contention
of law that emerges.
TYPES OF RENVOI
● Single Renvoi
Nations, for example, Spain, Italy, and Luxembourg work a “Single
Renvoi” framework. For instance, where a deceased benefactor, who
was a French national, was an occupant in England yet domiciled in
Spain leaving moveable property in Spain, the Court may need to
consider which authoritative discussion will apply to manage the
property under progression laws.In single renvoi, a judge of a country
is faced with conflicting rules of his country and sends the case to the
foreign country but according to the law of that country, the case is
referred back to his country and his country accepts sub reference and
applies the law of his country.
In re Ross
Facts of the case
The testatrix( the person who writes the will) was a British national,
who was domiciled in Italy and had written a will leaving the land in
Italy and the movables both in Italy and England. Where will was valid
in England but not in Italy because she had not left half of her property
to her son.
Judgement
Where the Court had applied the law regarding where the property is
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situated. The movables in Italy because the testatrix (the person who
writes the will) holds the Italian domicile. As a result, the Judge had
applied the Italian law with respect to the immovable property situated
in Italy. As Italy did not accept the renvoi based issue was decided in
accordance with English law.
Forgo case
Facts of the case
A Bavarian national died in France, where he had lived since the age of
5. Where under the Bavarian law the collateral relatives were entitled
to succeed, but under the french law the property will be passed to the
French government but not to the family members.
Judgement
The French Court held that it would decide the inquiry by applying
Bavarian law however the State contended that the Bavarian Courts
would apply French law, and the French Courts ought to do otherwise.
The case was ruled for the French state, and the reference here was to
the Bavarian guidelines of contention.
● Double renvoi or total renvoi
Countries like Spain, England, and France follow double renvoi. For
instance, let’s consider the accompanying case whereby a deceased
benefactor, an Irish national, residing in Spain, however, domiciled in
Italy, died and left some immovable property in France. France, being
the law of the gathering (where the advantages are arranged) will
analyze the law of the person who died. Spanish law watches the law of
the deceased nationality which is Italy. Italy, as a ward that just works
a solitary renvoi framework, won’t acknowledge the Double Renvoi and
almost certainly, right now will apply Italian law.
Re Annesley case
Facts of the case
An English woman was domiciled in France for 58 years at the time of
her death. According to the principles of English law, she was
domiciled in England. Before her death, she made a will, where the will
was valid as per the English law, but it was not valid as per the French
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law because she did not leave 2/3rd of her estate to the children.
According to the French law 2/3rd of the property goes to their heirs.
Where the France Court did not issue any authorization certificate that
she was a French domicile which was necessary for the acquisition of
domicile.
Judgement
The Court said that it had applied the French law as she was holding
the French domicile at the time of her death. Based on that, the English
Courts refer the matter to the French law as the law of domicile and the
French law also referred the same back to England as single renvoi is
recognized in France. Therefore, the French Court would accept the
Remission and have applied the Internal law.
JURISDICTION OF COURTS
Two fundamental questions need to be addressed on the basis of
jurisdiction, Firstly against whom an action can be filed, and who can
file an action. Secondly, what types of action may be filed. Disputes
before court on the questions of jurisdiction are classified under three
heads;
● actions inter partes/ personal actions
● actions relating to property
● actions relating to status
Actions inter partes
Actions inter partes or action in personam is one that seeks to establish
rights between the parties to dispute. It may relate to the obligations
arising out of a contractual arrangement or a tortious liability claim.
They are binding on the parties alone.
Under the English law, the courts have jurisdiction in matters if the
defendant of the case could be served with processes, as if he is present
in England, irrespective of the fact that he is a foreigner or was casually
present in England or was in transit. In Maharanee of Baroda V.
Widenstein case, a process was served on the defendant who was
residing in France at the time when he was served on a one day visit to
England. It was objected that English Court didn't have jurisdiction but
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the Court of Appeal held that process had been properly served and
hence Court had jurisdiction. This rule requires only the presence of
the defendant and residence is not insisted upon. The defendant
having been served upon with the process if he had left the country,it
does not in any way affect the jurisdiction of the court.
In the case of multiple defendants, in English law the process must be
served upon each of them, either by the plaintiff or his agent. It is only
in two situations that a substituted service may be adverted to:-
● if the court satisfied that the defendant is outside the jurisdiction
of the court only for the purpose of evading the court's
jurisdiction.
● if the defendant went out of jurisdiction of the court after the
issue of the writ and not for the purpose of evading it, but court
satisfied that there were special circumstances requiring the
defendant to be out of the court's jurisdiction.
With regard to corporations and firms, any person or persons
claiming to be partners claiming to be partners of a firm or are carrying
on business in England may sue or sued in the name of the firm of
which they were partners at the time the cause of action accrued. This
rule applies to all such members of the registered commercial activity
in England irrespective of their nationality and citizenship.
INDIAN POSITION
Rules concerning actions inter partes are specified in sections 19 and
20, Code of Civil Procedure 1908. Section 19 confined to suits for
compensation for wrongs to person or movables. Foreign torts are
covered under Section 20 which deals with all other inter partes suits.
The court's jurisdiction under Section 20 for actions inter partes
arises in following four situations:-
1. Where the defendant's permanent or temporary residence is
within the jurisdiction of the court.
2. If the defendant is engaged in some business that falls within the
court's jurisdiction.
3. If the defendant is making a gainful employment in the area
falling within the court's jurisdiction.
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4. If the cause of action either wholly or partially, arises within the
said jurisdiction
IMMUNITY ENJOYED BY SOVEREIGN
There are certain categories of people vested with immunity from
the jurisdiction. They are:-
● Foreign state, its head, and its departments
● Persons entitled to diplomatic immunity
● Officials of international organisations including United Nations
and its organs.
Actions against the persons of above categories being absent, no action
ordinarily lies against their property.
1. IMMUNITY FOR FOREIGN STATE, ITS HEAD AND ITS
DEPARTMENTS.
Immunity for foreign state and sovereign is found in English law
maxim in parem non habet imperium and also in the rules of Public
international law. In Rahimtoola V. Nizam of Hyderabad, The
House of Lords explained that such immunity is founded on the broad
considerations of public policy, international law and comity of
nations. The immunity of the sovereign extends to his property too.
Mighell V. Sultan of Johore, the Sultan of Johore resided incognito
in England and in that capacity entered into a contract of marriage
with an English woman. Upon being sued for breach of that contract, a
plea that was accepted by the court. This establishes that the rule of
immunity extends to acts in private capacity and also to the foreign
sovereign's commercial acts too.
The Christina holds the principle that property is considered to be
under control of the sovereign if he requisitions it and the persons in
control of it hold it for him. The doctrine of jurisdictional immunity
extends to the foreign governments, its departments and the foreign
public corporations.
DIPLOMATIC REPRESENTATIVES AND STAFF
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Diplomatic immunities have largely been crystallised in the Vienna
convention on diplomatic relations, 1961. Diplomatic personnel has
been classified into three categories:
● Diplomatic agents i.e., the head of the mission and the members
of his diplomatic staff
● Members of the administrative and technical staff i.e, persons
employed in secretarial and public relations work.
● Members of the service staff, domestic helps, chauffeurs and
porters etc.
INTERNATIONAL ORGANISATIONS
The official staff of such representatives and their family members may
also be conferred by such immunity. Such immunity is also available to
judges and registrars of the International Court of Justice and the
suitors to that court.
ASSUMED JURISDICTION
The meaning of assumed jurisdiction is that power of the English court
to take jurisdiction that is provided by the Rules of Supreme Court,
Order 11, Rules 1 and 2. Clause (a) to (i) of Order 1 contain a few
exceptions where an English Court may service out of its jurisdiction.
They are;
1. Where the whole subject matter is land situated within its
jurisdiction
2. Where any act, deed, will, contract, obligation or liability
affecting land within jurisdiction is sought to be construed,
rectified, set aside or enforced in an action.
3. Where the defendant is domiciled or ordinarily resident within
its territorial jurisdiction.
4. Where the action is for administration of the estate of the
deceased domiciled in England or such questions arising out of
the aforesaid administration.
5. Where the action is for execution of the property situated in
England, and such execution is of trusts created from a written
document, the local court's jurisdiction can be invoked.
6. Where the action is for a contract made in England, or made by
an agent or a trader residing in England on behalf of a principal
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residing out of England, or by its terms or by implication is to be
governed under English law.
7. Where an action is brought against the defendant not residing in
England or its territories, even though the breach of a contract
entered into either in England or outside was result of some
action that made the performance of the contract impossible.
8. Where the action is based on a tort committed in England.
9. If there is a main relief of injunction sought against the
defendant to do or refrain from doing something in England,
then English court's jurisdiction arises.
10. Where an action is brought under the Carriage of Goods by
Road Act, Merchant Shipping (oil pollution) Act, or the Nuclear
Installation Act.
11. In actions of mortgage of movable property situated in England.
PROOF OF FOREIGN LAW
Definition
Foreign laws refer to the laws of a foreign country or of any other state.
Question of fact
Foreign law is usually not binding on the court where an issue is for
consideration as anything which is not deemed to be law in a country is
a fact and must be proved as a fact. The courts do not judicially take
notice of foreign laws. It is referred as jus receptum. The burden of
proof lies on the party who relies on a foreign law.
Mode of proof
When foreign law is applicable by virtue of the conflict of laws rules of
the forum, there are several methods by which that law can be made
known to the court.
1. By judicial notice
2. By pleading and proof and
3. By presumption
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These methods are governed by lex fori.
EXCLUSION OF FOREIGN LAW
There are certain instances in which foreign law is excluded. Firstly,
statutory law may expressly or tacitly exclude foreign law as evidenced
by Section 4 of the National Credit Act or constitution, respectively. In
instances where statutory law excludes the application of lex causae(is
the law or laws chosen by the forum court from among the relevant
legal systems to arrive at its judgement of an international or
interjurisdictional case) and lex fori(the law of the country in which an
action is brought) will apply. Secondly court may choose not to apply
lex causae based on public policy even though our Private international
law rules dictates the application of lex causae.
● Statutory exclusion
(a) Express exclusion directly through legislation or
(b) Tacit or implied exclusion
Express exclusion: mandatory rules/ scope rules- expressly exclude
foreign law. In these situations it is mandatory to apply South African
law.
● There is a presumption that mandatory law of the lex fori cannot
be excluded and must apply.
Foreign law is always excluded in instances where the legislation is
applicable because the legislation gives extensive protection to certain
categories of person in certain situations. For example
● Electronic communication and Transactions Act 25 of 2002
● Section 4 National Credit Act 34 of 2005
● Consumer Protection Act 68 of 2008
Tacit
Tacit Exclusion also takes its basis from legislation. The main
difference is that legislation does not expressly exclude the application
of foreign law. Examples of such legislation is labour legislation.
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Module :3
Domicile- kinds of domicile- general principles of domicile-
presence, residence, domicile and nationality of corporation-
Recognition and enforcement of foreign judgement -Arbitral
awards - Law of limitation- stay of action
DOMICILE
Domicile is the attribution of being or seeing a place as a person’s
permanent abode. For a place to be seen as the acceptable domicile of a
person, there must be evidence to the effect that the person sees the
said domicile as his permanent abode. Irrespective of the fact that a
person has lived in a given place, state or jurisdiction for a long time in
the absence of that mental acceptance of such person showing that the
said jurisdiction shall be his permanent abode it will not be deemed as
that person’s domicile.
KINDS OF DOMICILE
● Domicile by origin
● Domicile by choice
● Domicile by operation of law
DOMICILE BY ORIGIN
They are a legitimate child, an illegitimate child, and a posthumous
child. Every person upon birth is vested with a domicile. Birth is the
medium through which a person gets the first contact with the law and
environment.A legitimate child upon birth by virtue of Section 7 of
Succession Act of India 1925 acquires the domicile of the father at the
time of his birth.
By virtue of Section 8 of the same Act of 1925, an illegitimate child is
clothed with the domicile of the mother at the time of the child’s birth.
In the case of a posthumous child, his domicile is the domicile of the
deceased father prior to his death; see Section 7 of the Succession Act
of India, 1925 .
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DOMICILE BY CHOICE
On attaining the age majority one is faced with a lot of decisions which
he is at liberty to take and bear the responsibility. One of such
decisions is the choice of domicile. A person of age and sound mind
acquires the domicile of a place when he voluntarily decides to live
indefinitely in a place.
DOMICILE BY OPERATION OF LAW
It is the instrumentality of the law that will lead to ascertaining where
is the domicile of the person in question This arises where the domicile
of a person is determined by the domicile of another person.
The Act recognized three (3) categories of persons as persons whose
domicile may be classified and determined under this heading. These
persons are:
● minors,
● persons of unsound mind, and
● married women.
The domicile of a minor including an adopted child is by the provision
of Sections 14 and 17 of the Succession Act, 1925 dependent on the
domicile of the parents and maybe interwoven as the case in domicile
by origin. However a child’s domicile may be distinct from that of his
parents if:
● He is married.
● He is under the appointment or the service of the government of
India.
● With the consent of his parents, he had set up a business.
GENERAL PRINCIPLES OF DOMICILE
Under both Indian and English private international law there are four
general rules in respect of domicile.
● No person can be without a domicile;
● No person can at the same time have more than one domicile;
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● An existing domicile is presumed to continue until it is proved
that a new domicile has been acquired; and
● Domicile denotes the connection of a person with a territorial
system of law
person can be without a domicile: This rule is based upon the
practical necessity of connecting every person with some legal system
by which questions affecting his family relations and family properties
are to be determined. “It is a settled principle”. In case of Udnv vs.
Udny“that no man shall be without a domicile, and secure this result
the law attributes to every individual as soon as he is born, the domicile
of his father, if the child is legitimate and the domicile of mother if
illegitimate this has been called the domicile of origin and is
involuntary. Domicile of origin prevails until a new domicile has been
acquired. But the moment a person loses his acquired domicile his
acquired domicile, the domicile of origin springs back to him
A person cannot have more than one domicile: At any given
time through dual citizenship is permitted by several countries. Main
object of this rule is the same as that of the first time to connect a
person with a definite legal system. Domicile signifies connection with
a territorial subject to a single legal system of law. What is sometimes
called a “law district”. Like a federal state where the legislative
authority is distributed between central and state legislatures, the law
district is, generally the state where the concerned person has
established his home. Like citizenship domicile is also one for the
whole of India, Clarifying the impression created in D.P Joshi VS.
Madhya Bharat and N.Vasundara VS. State of Mysore that as
state have independent power to make laws with respect to marriage,
divorce, succession, etc... they may create different legal system for the
purpose of domicile, the supreme court in Pradeep Jain vs. Union of
India held that in these two cases the word domicile was used to
convey the India the idea of intention to reside permanently or
indefinitely” for the purpose of admission to medical or other technical
institutions within a state and not in the technical sense in which it is
used in private international law.
Presumption in favor of an existing domicile: An existing
domicile is presumed to continue until it is proved that new domicile
has been acquired. Hence the burden of proving a change of domicile
lies invariable on those who allege that a change has occurred. If the
evidence adduced is conflicting or is not convincing, then court has to
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decide in favour of existing domicile
Domicile is determined according to English law: In a case
involving foreign element, the question as to where a person is
domiciled is to be determined according to English concept of domicile
and not according to foreign concept. In other words, for the purpose
of English Private International Law, domicile means domicile in
English sense. Thus in the eye of English law, a person domicile in
England may acquire a domicile of choice in Frances if he satisfies the
English rules, although he may fail to satisfy the French rules.
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENT
Section 13 of CPC embodies the principle of res judicata in foreign
judgments. It embodies the principle of Private International law that a
judgement delivered by a foreign court of competent jurisdiction can
be executed and enforced in India.
The judgement of a foreign court is enforced on the principle that
where a foreign court of competent jurisdiction has adjudicated upon a
claim, a legal obligation arises to satisfy that claim in the country
where the judgement needed to be enforced.
Section 14 of Civil Procedure Code states the presumption that an
Indian court takes when a document supposing to be a certified copy of
a foreign judgement is presented before it.
Foreign Judgments when cannot be Enforced in India
Under Section 13, there are six cases when a foreign judgement shall
not be conclusive.
● Foreign Judgement not by a competent court
It is a basic fundamental principle of law that the judgement or order
passed by the court which has no jurisdiction is void. Thus, a
judgement of a foreign court to be conclusive between the parties must
be a judgement pronounced by a court of competent jurisdiction
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● Foreign Judgments against International or Indian Law
A Judgement which is contrary to the basic fundamental rules of
International law or a refusal to recognize the law of India where such
law is applicable is not conclusive.
● Foreign judgement obtained by fraud
It is a well settled principle of Private International Law that if foreign
judgments are obtained by fraud, it will not operate as res judicata. It
has been said “Fraud and Justice never Dwell together” (fraus et jus
nunquam cohabitant); or “ Fraud and deceit ought to benefit none”
(fraus et dolus nemini patrocinari debent). In the case of Satya
v. Teja Singh the Supreme Court held that since the plaintiff had
misled the foreign court as to its having jurisdiction over the matter,
although it could not have had the jurisdiction, the judgment and
decree was obtained by fraud and hence in conclusive.
● Foreign Judgments founded on breach of Indian Law
When a law in force in India is wrongly construed so as to form the
reasoning behind a judgement delivered by a foreign court, in such
cases the enforceability of the foreign judgement in Indian courts will
be under question.
● Foreign Judgments not on Merits
In order a foreign judgement to operate as Res Judicata, it must have
been given on merits of the case. A judgement is said to have been
given on merits when after taking evidence and after applying his mind
regarding the truth or falsity of case. The Actual test for deciding
whether the judgement has been given on merits or not is to see
whether it was merely passed as a matter of course, or by way of
penalty of any conduct of the defendant, or is based upon a
consideration of the truth or falsity of the plaintiff”s claim.
● Foreign Judgments opposed to the principle of Natural Justice
It is the essence of a judgement of court that it must be obtained after
due observance of the judicial procedure i.e the court rendering the
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judgement must observe the minimum requirements of natural justice.
It must be composed of impartial persons, who must act in a fair and
justified manner, without bias, and in good faith, it must give
reasonable notice to the parties to the dispute and each party should be
given equal opportunity of presenting their case.
Enforcement of Foreign Judgments
A foreign Judgement which is conclusive and does not fall within
section 13 (a) to (f), may be enforced in India in either of the following
ways.
By instituting execution proceedings
A foreign Judgement may be enforced by proceedings in execution in
certain specified cases mentioned in Section 44-A of the CPC.
Section 44A – Execution of decrees passed by Courts in reciprocating
territory(1) Where a certified copy of a decree of any of the superior
courts of any reciprocating territory has been filed in a District Court,
the decree may be executed in India as if it had been passed by the
District Court.
(2) Together with the certified copy of the decree shall be filed a
certificate from such superior court stating the extent, if any, to which
the decree has been satisfied or adjusted and such certificate shall, for
the purposes of proceedings under this section, be conclusive proof of
the extent of such satisfaction or adjustment.
(Reciprocating territory” means any country or territory outside
India which the Central Government may, by notification in the
Official Gazette, declare to be a reciprocating territory for the
purposes of this section, and “Superior Courts”, with reference to any
such territory, means such courts as may be specified in the said
notification. for example U.A.E, Fiji, U.K, Bangladesh, singapore)
Therefore Under Section 44A of the CPC, a decree or judgement of any
of the Superior Courts of any reciprocating territory are executable as a
decree or judgement passed by the domestic Court.
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By instituting a suit on such foreign judgement
Where a judgement or decree is not of a superior court of a
reciprocating territory, a suit has to be filed in a court of competent
jurisdiction in India on such foreign judgement. The general principle
of law is that any decision of a foreign court, tribunal or any other
quasi-judicial authority is not enforceable in a country unless such
decision is embodied in a decree of a court of that country.
Limitation period for Enforcement of Foreign Judgments
As per the provisions of the Code, foreign judgments from
reciprocating territories are enforceable in India in the same manner as
the decrees passed by Indian courts. The Limitation Act, 1963
prescribes the time limit for execution of a foreign decree and for filing
of a suit in the case of judgement passed by foreign court.
• Three years, commencing from the date of the decree or where a date
is fixed for performance; in case of a decree granting a mandatory
injunction; and
• Twelve years for execution of any other decree commencing from the
date when the decree becomes enforceable or where the decree directs
any payment of money or the delivery of any property to be made at a
certain date, when default in making the payment or delivery in respect
of which execution is sought, takes place.
A judgement obtained from a non-reciprocating territory can be
enforced by filing a new suit in an Indian court for which a limitation
period of 3 years has been specified under the Limitation Act, 1963
commencing from the date of the said judgement passed by foreign
court.
RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS
One of the declared objectives of the Arbitration and Conciliation Act,
1996 is that every final award is to be enforced in the same manner as
the decree of the Indian court would be. The Act has two parts- Part I
and Part II, each of which deal with the enforcement of different type
of foreign arbitral awards. Part I, modelled on the UNCITRAL Model
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Law, provides for the enforcement of arbitral awards that are not
covered under the ambit of either the New York or the Geneva
Conventions. Part II of the Act is in tune with the provisions of the New
York Convention. As per Section 46 of the Act, the provisions of Part II
applies if the arbitral award is in pursuance of arbitration agreement
under the Convention and the award is made in those States or in
within the territorial limits of such place that has been notified by the
Government of India.
An award can be challenged and set aside only by way of an application
under Section 36 of the Act and only the basis of the circumstances
listed under it. An application for setting aside an award must be made
within three months of receipt of the award by the applicant subject to
a further extension of 30 days on sufficient cause being shown. An
application beyond this period is time-barred and further delay cannot
be condoned.
STAY OF ACTION
The multiplicity of suits sometimes results in injustice and
inconvenience the domestic law of the country lay down rules for stay
of actions pending before it or for restraining a party proceeding from
further with his action that he had filed in foreign country.
Lis alibi Pendens
The court has jurisdiction to stay an action in England or to restrain by
injunction the institution or continuance of proceeding in a foreign
court to prevent simultaneous legal proceeding in different countries
regarding the same cause of action. In such a situation the defendant in
the English action may arise the plea of lis allibi pendens(suit pending
elsewhere).
The question may arise in two different situations;-
(a)The plaintiff in England is also the plaintiff in the foreign
proceedings.
Here the court may stay the England proceeding or injunct the plaintiff
not to proceed with foreign proceeding. The court can also require the
plaintiff to elect between the two proceedings. If the plaintiff disobeys
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the order to discontinue the foreign proceedings, he can be proceeded
against for contempt of court.
(b) When the plaintiff in the English proceedings is the defendant
in the foreign proceedings and vice versa
Here the person against whom the stay is sought has not initiated both
the actions in the first case. So, the party stay is not in control of both
actions.
Stay of action in Indian law
Section 10 of CPC deals with stay of suits. Section 10 is applicable only
to domestic cases, not in the case of double proceedings with one case
in India and other in a foreign country.
Module :4
Principles of Private International law relating to contracts,
e-contracts, e-consumer, negotiable instruments, intellectual
property, movable and immovable property, insolvency and
succession.
PRINCIPLES OF PRIVATE INTERNATIONAL LAW RELATING TO
CONTRACTS
The contract in conflict of laws involves many transactions in trade
and commerce. The contracts are more complex when there is an
involvement of foreign element; it is difficult to determine the rights
and liabilities of the parties.
ROME CONVENTION
The main purpose of Rome convention is to adopt uniform rules of
conflict of laws within European community in which it was proposed
by the Benelux nations countries in 1967. The scope of the Convention
is given in Article 1(1) provides that " the rules of this convention shall
apply to contractual obligation in any situation involving a choice
between the laws of different countries.
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Connecting Factors
Two connecting factors have been appropriate to govern the law of
contract, viz:
● Lex loci contracts (Law of the place where the contract was
made)
● Lex Loci solutions( law of the place where performance of the
contract was due.)
HOW TO DETERMINE PROPER LAW?
There are two theories in determining proper law of contract.
(A) Theory of intention or subjective theory
It is the proper law in which the parties intended to apply and parties
themselves have chosen their rights and liabilities to determine under a
particular law and when not expressly mentioned, the relevant
circumstances must be taken to consideration to determine the
intention.
(B) Theory of localisation of the contract or objective theory
The contract in which the most part of the transaction takes place
which is the natural seat of contract then the law of that particular
country will applicable.
DOCTRINE OF PROPER LAW
The law chosen by the parties is often referred to as the proper law of
the contract and this choice can be express or implied. If there is no
choice then governed by the most closely connected test.
According to Article 3(1) of the convention says " A contract shall be
governed by the law chosen by the parties.By their choice parties can
select the law applicable to the whole or a part only of a contract."
The matter os ascertaining the proper law depends on the intention of
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the parties to be ascertained in each case on consideration of (a) terms
of contract (b) the situation of parties generally on ( c) all surrounding
facts from which the intention of the parties is to be gathered.
FORMATION OF CONTRACT
The formation of contract contains the essentials such as the offer,
acceptance, consideration, legal object, capacity but should not contain
any vitiating factors such as fraud, mistake, misrepresentation etc the
agreement can be seen in two ways, i.e. factum of the agreement ( offer
and acceptance) and reality of the agreement(personal laws of the
parties). The validity of contract is of two types formal and essential
validity.
● Formal validity
The concern in this is not with procedural formalities such as status of
fraud but with non procedural formalities such as contract for the
conveyance or creation of a legal estate in land having to be in a deed.
It is likely that compliance with either the lex loci contractus or the
putative proper law will suffice to formally validate the contract.
● Essential Validity
The proper law determines whether the contract orits terms including
exemption clauses are valid and effective.
E CONTRACTS
E-contract is a contract modelled, specified, executed and deployed by
a software system. E-contracts are conceptually very similar to
traditional commercial contracts. Vendors present their products,
prices and terms to prospective buyers. Buyers consider their options,
negotiate prices and terms, place order and make payments. Then the
vendors deliver purchased products.
Legal validity of e-transactions
Electronic contracts are governed by the basic principles elucidated in
the Indian Contract Act 1872, which mandates that a valid contract
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should have been entered with a free consent and for a lawful
consideration between two adults. Section 10 A of the Information
Technology Act 2000 that provides validity to e contracts.
The Role of Private International law in E contracts.
Private International law, also known as conflict of laws in more
common law oriented jurisdictions, is a body of law that seeks to
resolve certain questions that result from the presence of a foreign
element in legal relationships. Eg. instances of such relationships
include contractual disputes between parties located in different
jurisdictions, the marital status of partners of different nationalities,
the legal status of real estate located in a foreign jurisdiction and in the
intellectual property context.
NEGOTIABLE CONTRACT
Negotiable instrument is a document that contains several distinct
contracts and each party who puts his signature to the document
incurs a separate liability. In the bill of exchange the original contract
between the drawer and the acceptor creates the primary liability.
Hence it can be said that when a conflict of laws the portion of each
contracting party should be decided by reference to single law ie the
law that governs acceptance.
Validity of bill of exchange
The validity of bill and is supervising contracts depends upon
compliances with the law governing formal validity, capacity and
essential validity.
Formal validity
Section 72(1) of the Bill of exchange Act contains the English rules on
this matter. The formal validity of bill is drawn in one country and
accepted, negotiated and payable in another, shall be determined by
the place of issue.
Essential validity
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Essential validity and interpretation of negotiable instruments are
governed by lex loci contractus according to the provisions of the
English act. The act makes an exception to the exclusive application of
lex loci contractus that where an inland bill is endorsed in a foreign
country, the endorsement shall as regards the payee be interpreted
according to the law of United Kingdom.
IMMOVABLE PROPERTY
According to conflict of laws, the law of the land where a thing is
physically situated determines whether it is movable or immovable
property.
A rent charge on lands, the right under a will to the proceeds of
immovable property situated in England are regarded as immovable
property.
Position in India
In private international law of most countries including England, the
United States and most other countries it is an established rule that in
respect of transaction relating to immovable property all rights are
governed by lex situs(law of the land where the immovable property is
situated).
Jurisdiction in the case of immovable property.
In the leading case of British South Africa co. V.companhie de
mocambique the house of the lords laid down the rule that an English
court has no jurisdiction to adjudicate upon the right of property on or
the right to possession of foreign immovable even though the parties
may be resident or domiciled in England
Exception to the rule
● Action founded on personal obligations
If the conscience of the defendant is affected in the sense thathe has
become bound by personal obligation to the plaintiff, the court in
exercise of its jurisdiction in personam, will not shrink from ordering
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him to convey or otherwise deal with foreign land.
The circumstances that have been considered sufficient to create this
personal equity mainly relate to;
(a)Contract relating to foreign land
(b) Fraud and other unconscionable conduct
(c)Fiduciary relationship
(d) Matrimonial property
● Questions affecting foreign land incidentally raising an English
Action
In the case of administration of a trust or estate of deceased person, if
the property includes immovables or movables in England as well as
immovable situated in a foreign country, the English court has
jurisdiction to determine questions affecting the foreign immovable
property for the purpose of administration.
● Admiralty jurisdiction in Trespass
The high court in England can in the exercise of its admiralty
jurisdiction decide on the question of trespass.
INDIAN LAW
The Indian law is substantially same as the English law. Section 16 of
CPC provides that in matters relating to immovable property, the suit
be instituted in the court within the local limits of whose jurisdiction
the property is situated.
MOVABLE PROPERTY
Movable properties consists of tangible and intangible. The transfer of
movables can be affected by the act of parties or by operation of law. A
state has absolute authority over personal or movable property within
its borders. The state has the duty to regulate the transfer of such
movable property and only in instance where the state allows such
property be affected by the law of any other states.
When a case related to transfer of movables comes before the English
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court, it can exercise jurisdiction even though the movable property is
not situated in England. However, the plaintiff should not be an enemy
alien and the defendant should be present in England and a summons
should be served upon him. There are various theories with regard to
the choice of law;
● The LEX DOMICILE Theory
According to this theory, transfer of movables are governed by law of
the owners domicile. This theory was generally accepted in England
and USA in earlier times.
● The LEX ACTUS Theory
According to this theory, the disputes with regard to the transfer of
Movable property should be governed by the law of the place where it
was performed.
● The LEX SITUS Theory
According to this theory, the validity of a transfer of a tangible movable
and its effects on the proprietary rights of the party are to be governed
by the law of the country where the movable is situated at the time of
transfer.
● The PROPER LAW Theory
According to this theory, the appropriate law to be applied for deciding
question arising out of transfer movables is the law of the country with
which the elements of transfer has the most substantial connection.
INTANGIBLE MOVABLES
Choses in action are intangible movables. They can be divided into two
groups.
(a)Those which are mere right of actions. Eg. a debt arising from a
loan.
(b) Those which are represented by some documents are writing
that is capable of being negotiated as a separate physical entity.
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Eg. promissory notes, bill of exchange, cheque, shares etc.
INTELLECTUAL PROPERTY
The three great international intellectual property treaties the Paris
convention, BERNE convention and TRIPS agreement all place
emphasis on harmonisation both in terms of procedure and
substantive and contain few provisions that could be characterised a
private international law.
Article 5(2) of BERNE convention which states that "the extent of
protection as well as means of redress afforded to the author to protect
his rights, shall be governed exclusively by the laws of the country
where protection is claimed". The three essential elements which has
been brought to private international law for resolving the problem
arising from the presence of foreign elements are;
(a) The territorial nature of the intellectual property system "It is
conceivable that nations would agree to treat inventors and
authors as having personal rights to patents or copyright which
are determined by their country of origin
(b) The need for introducing minimum intellectual property
standards across jurisdictions.
(c)The reliance of intellectual property system notably in industrial
property, on registration as a means of enabling or atleast
facilitating the protection of the rights concerned.
INSOLVENCY PROCEEDINGS
The legal concept of insolvency serves threefold interest;
(a)The individual interest of the debtor
(b) The interest of the community of creditors.
(c)Social interest according to the protection of trade and commerce
Jurisdiction of English Courts
Under the Bankruptcy Acts a petition for bankruptcy may be filed by
debtor himself or any of his creditors. An English court can exercise
jurisdiction when the following two preliminary conditions are
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satisfied:
(a)There must be an act of bankruptcy
(b) There must be a debtor.
Indian law
The Indian law on insolvency is contained in two statutes, Presidency
Insolvency Act,1909 and Provincial insolvency Act 1920. Now
insolvency in India is governed by Insolvency and Bankruptcy Code
MODULE 4:
Principles of private international law relating to marriage,
matrimonial causes, legitimacy and legitimation adoption,
guardianship and custody of minors and children.
PRINCIPLES RELATING TO MARRIAGE
Meaning of Marriage
Marriage is a contract by which a man and a woman express their
consent to create the relationship of husband and wife. This contract,
however, differs fundamentally from a commercial contract in the
following ways:
● As a general rule, it can only be concluded by a formal public act.
It can only be dissolved by a formal public act.
● More importantly, it creates a status which is taken into account
in relation to, for example, succession, tax, legitimacy of children,
and to some extent in relation to immigration laws.
In English law, a marriage though a contract, is a sui generis. Each
legal system determines the attributes of a marriage, at Common Law
in England; it is in essence a consensual union of a man and woman. In
a celebrated (or notorious) case in 1866, Hyde v. Hyde, it was held that
a marriage was voluntary union for life of one man with one woman to
exclusion of others. This decision was the foundation of the rule that
polygamous marriages were not recognized in England.
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FORMAL VALIDITY : THE PRINCIPLE OF LOCUS REGIT ACTUM
It has been settled since 1725, that formalities of marriage are governed
by lex loci celebrations is law of the place where the marriage was
celebrated. The maxim is locus regit actum ie. the place governs the
act.
In order to determine the formal validity of valid marriage that English
court will apply lex loci celebrationis(law of the place where the
celebration is placed).
Effect of changes in lex loci celebrationis
It seems that the lex loci at the time of celebration of marriage once for
all determine formal validity;the married status unaffected by changes
introduced subsequently. Although a marriage valid by changes
introduced subsequently. Although a marriage valid by lex loci
celebrationis at the time of marriage will not be invalidated by
subsequently changes in that law, the conversey may not be correct. A
marriage which does not comply with the formalities prescribed by lex
loci at the time of marriage may be validated by subsequently
retrospective changes in the lex loci.
Exception to the locus regit actum
There are certain exception to the rule that a marriage which does not
satisfy the formal requirement of lex loci celebrationis valid. Under the
following circumstances a marriage is regarded as valid even though it
has failed to observe the formal requirements;
(a)The two statutory exceptions
By virtue of foreign marriages act of England, a marriage is solemnized
before a marriage officer in a foreign country would be valid if one of
the parties is a British subject.
(b) Marriage of members of British forces serving abroad
CAPACITY TO MARRY
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The legal capacity to marry deals with the matter such as consanguinity
and affinity, bigamy and lack of age. Consideration is given later to the
law to govern matters of consent and physical capacity.
Theories govern the capacity to marry
(A) DUAL DOMICILE THEORY
According to this theory, a marriage is invalid unless according to the
law of the domicile of both the parties at the time of marriage, they
have the capacity for marriage. In order to determine the capacity of
parties to a marriage, the law of anti-nuptial domicile of both the
parties have to be considered by English court.
(B) INTENDED MATRIMONIAL HOME THEORY
According to this theory, the capacity to marriage should be governed
by the law of the country where the parties at the time of marriage
intended to establish their matrimonial home and actually established
their matrimonial home.
MATRIMONIAL CAUSES
Matrimonial Causes Matrimonial causes are now generally taken to
include petition for divorce, nullity of marriage, judicial separation and
presumption of death and dissolution of marriage as well as similar
foreign proceedings which may fall recognition here.
Polygamous marriage and Matrimonial relief
In Common Law Until 1972, the rule of English Law was that the
parties to a polygamous marriage were "not entitled to the remedies,
the adjudication, or relief of the matrimonial law of England. It meant
that, in the case of a polygamous marriage, the court would grant a
divorce, a decree of nullity even where the petitioner claimed lack of
capacity to enter a polygamous marriage, or a decree of judicial
separation.
Matrimonial Causes Act, 1973
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Section 47 of the Matrimonial Causes Act, 1973 makes it available to
the parties to an actually polygamous marriage a wide range of
matrimonial relief, namely decrees of divorce, nullity, judicial
separation, presumption of death and dissolution of marriage, order
for financial provisions in the cases of neglect to maintain, variations of
maintenance agreement, orders for financial relief or relating to
children which are ancillary to any of the preceding decree or order,
order made under Part I of the Domestic Proceedings and Magistrates"
Court Act 1978, order for financial relief after a foreign divorce,
annulment or legal separation and any declaration under Part III of the
Family Law Act 1986 involving a determination as to validity of a
marriage.
Remaining Problems
Where the party to an actually polygamous marriage brings proceeding
for divorce alleged irretrievable breakdown of the marriage, difficulties
may arise over adultery, unreasonable behaviour or desertion as proof
of breakdown. If a wife alleges that her husband has committed
adultery with another wife, such a claim will usually fail because, "it is
an essential element of adultery that intercourse has taken place
outside the marriage relationship i.e. between persons not married to
each other.
Jurisdiction
Divorce and Judicial Separation
It was led by the Privy Council in Le Mesurier v. Le Mesurier, that
as per international law, the domicile for the time being of the married
pair affords the only jurisdiction and only true test of jurisdiction to
dissolve their marriage. The essence of the rule in this case was that
there should be only one test of jurisdiction and only one court capable
of dissolving a particular marriage, the court of the parties domicile.
Nullity of marriage
Before 1974 the jurisdiction of the British Court to entertain petitions
for the nullity of marriages was one of the most vexed and difficult
question in the whole of the English conflict of laws. An enormous
simplification of the law was effected by section 5(3) of the Domicile
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and Matrimonial Proceeding Act 1973. This provides that the English
Court have such jurisdiction to entertain such petition if (and, subject
to section 5(5), on if) either party to the marriage.
1. domiciled in England on the date when the proceedings are
begun
2. Was habitually resident in England throughout the period of one
year ending with the date,
3. Dies before that date and either was at death domiciled in
England, or had been habitually resident in England throughout
the period of one year ending with the date of the death.
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